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Chowdhury Ajodhya Nath Pahary Vs. Chowdhury Srinath Chandra Pahary - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal472,68Ind.Cas.207
AppellantChowdhury Ajodhya Nath Pahary
RespondentChowdhury Srinath Chandra Pahary
Cases ReferredRameshwar Singh Bahadur (Maharajah of Darbhanga) v. Homeshwar Singh
Excerpt:
execution of decree - limitation--application for execution, when may be treated as one in continuance or revival of a previous application. - .....on the 4th august 1916 the court directed a fresh attachment to issue in the following terms: 'the decree-holder is to file process and process-fees within five days.' this order was carried out. but on the very next day, the judgment-debtor filed, a petition under order xxi, rule 2 of the code of civil procedure, to the effect that the decree had been satisfied out of court and, consequently, no execution could issue on the basis thereof. this objection was numbered as a separate case. the two case a were adjourned from time to time and on the 9th december 1916 the objection case as wall as the execution case came up for consideration. the objector applied for further time but the court refused adjournment on the ground that the case was already very old. the pleader for the objector.....
Judgment:

1. This is an appeal by the decree-holder against an order of dismissal made on an application for execution of a decree. The decree was made by consent of parties on the 25th June 1915. The first application for execution was made on the 26th June 1916. Thereupon a writ of attachment was issued. The writ was returned un(sic)erved and on the 4th August 1916 the Court directed a fresh attachment to issue in the following terms: 'The decree-holder is to file process and process-fees within five days.' This order was carried out. But on the very next day, the judgment-debtor filed, a petition under Order XXI, Rule 2 of the Code of Civil procedure, to the effect that the decree had been satisfied out of Court and, consequently, no execution could issue on the basis thereof. This objection was numbered as a separate case. The two case a were adjourned from time to time and on the 9th December 1916 the objection case as wall as the execution case came up for consideration. The objector applied for further time but the Court refused adjournment on the ground that the case was already very old. The Pleader for the objector thereupon stated that he bad no further instructions. The objection case was consequently dismissed for default. We find thereafter the following entry in the order-(sic)sbee: ' The Pleader for the decree-holder has no objection to his cave being dismissed provided he gets his costs, The execution case is dismissed for default. The decree-holder will get his costs.' Subsequently, on the 27th November 1919 the present application was made. The judgment-debtor objected that the application was barred by limitation inasmuch as it had been presented more than three years after the 24th June 1916 when the previous application for execution had been made. We are of opinion that this contention should have been treated as unsustainable. It is plain that the execution proceedings which had been initiated on the 24th June 1916 had been suspended by reason of the objection taken by the judgment debtor. During the period the objection remained under consideration of the Court, execution could not obviously proceed, As soon as the objection was abandoned on the 9th December 1916, it became the duty of the Court to proceed with the application for execution. The decree-holder had done every thing that he was required to do to enable the Court to proceed with the case. He had filed processes and had paid process fees as directed on the 4th August 1919. The order for dismissal made on the 9th December 1916 must accordingly be treated as equivalent to an order for striking off the case or removing it from the file for the convenience of the Court: Kishen Lal v. Charat Singh 23 A. 114 A. W. N. (1900) 214; Puddomonee Dossee v. Roy Muthooranath Chowdhry 12 B. L. Rule 411 : 20 W. Rule 133; Peary La Sinha v. Chandi Charan Sinha 11 C.W. N. 163 : 6 C. L. J. 80; Dand Ali Shah v. Bam Prasad 30 Ind. Cas. 787 : 37 A. 542 : 13 A. L. J. 750; Yakub Ali v. Durga Prasad 6 Ind. Cas. 877 : 37 A. 518 : 13 A. L. J. 760. In these circumstances, the principle applicable is that stated in the case of Madhab Moni Dasi v. Pamela Lambert 6 Ind. Cas. 537 : 37 C. 796 : 12 C. L. J. 328 : 15 C. W. N. 337. 'An application for execution of a decree may be treated as one in continuation or revival of a previous application, similar in scope and character, the consideration of which has bean interrupted by the intervention of objections and alarms subsequently proved to be groundless or has been suspended by reason of an injunction or like obstruction.' In support of this view reliance may be placed on the decision of the Judicial Committee in Shaikh Qamaruddin Ahmad v. Jawahir Lal 32 I. A. 102 : 27 A. 334 : 1 C. L. J. 331 : 2 A. L. J. 397 : 9 C. W. N. 601, 15 M. L. J. 258 : 7 Bom, L. Rule 483 : 8 Sar. P. C. J. 810 (P. C.). which has been recently applied in Rameshwar Singh Bahadur (Maharajah of Darbhanga) v. Homeshwar Singh 59 Ind. Cas. 636 : 48 I. A. 17 : 33 C. L. J. 109 : 1 P. L. T. 731 : 19 A. L. J. 26, 40 M. L. J. 1 : (1921) M. W. N. 21 : 25 C. W. N. 337 : 6 P. L. J. 132 : 13 L. W. 546 : 23 Bom. L. Rule 721 : 30 M. L. T. 189 (P. C.).

2. We are of opinion, therefore, that this appeal must be allowed. The order of the lower Appellate Court is set aside and the case is sent back to the Court of first instance in order that the execution may proceed.

3. The decree-holder will get his costs through-out. We assess the hearing fee in this Court at one gold mohur.


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