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Mohini Mohan Sirkar Minor and ors. Vs. Navadwip Chandra Biswas - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in47Ind.Cas.911
AppellantMohini Mohan Sirkar Minor and ors.
RespondentNavadwip Chandra Biswas
Cases ReferredGnanendra Kumar Rai Chowdhury v. Shayama Sunder Jen
Excerpt:
execution of decree - application for attachment of moveables--subsequent application for attachment of immoveables, whether in continuation of previous application--limitation. - .....appeal arises out of certain execution proceedings. it appears that on the 10th december 1913 the decree-holder-appellant obtained a decree for arrears of rent against the judgment-debtor-respondent in this appeal. on the 26th august 1916 the , decree-holder made an application for execution, and in the same application prayed for the attachment and sale of the judgment debtor's moveable properties. processes were issued accordingly, but as the result of proceedings taken apparently by the judgment-debtor the attachment of moveables was found to be impracticable. thereupon on the 22nd february 1917 the decree-holder prayed that he should be permitted to proceed against the judgment-debtor's immoveable properties. permission was granted and on the 24th february 1917, the decree-holder.....
Judgment:

1. This appeal arises out of certain execution proceedings. It appears that on the 10th December 1913 the decree-holder-appellant obtained a decree for arrears of rent against the judgment-debtor-respondent in this appeal. On the 26th August 1916 the , decree-holder made an application for execution, and in the same application prayed for the attachment and sale of the judgment debtor's moveable properties. Processes were issued accordingly, but as the result of proceedings taken apparently by the judgment-debtor the attachment of moveables was found to be impracticable. Thereupon on the 22nd February 1917 the decree-holder prayed that he should be permitted to proceed against the judgment-debtor's immoveable properties. Permission was granted and on the 24th February 1917, the decree-holder filed a list of the immoveable properties against which he desired that proceedings should be taken. .

2. The application made on the 26th August 1916 was admittedly within time. But the Court of first appeal has held that the applications made on the 22nd and 24th February 1917 were barred by the three years rule of limitation to be found in Article 6 of Schedule III of the Bengal Tenancy Act. In appeal the decree-holder contends that the applications made on the 22nd and 24th February, 1917 should be considered and treated, not as fresh or new applications, but as applications made as parts of and in continuation of the first application rendered necessary by the fact that the Court was unable to give the decree holder the remedy sought for in the first instance. The judgment debtor-respondent -on the other hand cites the Full Bench case of Asgar Ali v. Troilokya Nath Ghose 17 C. 631 : 8 Ind. Dec. (N.S.) 930 (F.B.) and on the, authority of that case contends that the applications of the 22nd and 24th February 1917 should be looked upon, as in the nature of amendments of the original application and, therefore, as amendments which could not be made after the original application had been admitted and registered. The present case may, however, be distinguished from the Full Bench case in the manner' in which the case of Gnanendra Kumar Rai Chowdhury v. Shayama Sunder Jen 44 Ind. Cas. 553 : 22 C.W.N. 510 : 27 C.L.J. 398 to the. decision of which I was myself a

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