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Sitanath Das Vs. Rani Kanak Probha Debi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal322(1),67Ind.Cas.879
AppellantSitanath Das
RespondentRani Kanak Probha Debi and ors.
Cases ReferredHarendra Lal Roy Chowdhry v. Sham Lal Sen
Excerpt:
execution of decree - limitation--judgment-debtors who were described as parties but against whom execution was not asked for, if precluded from showing subsequently that the application was barred by limitation. - .....described as parties but execution was not asked for against them. various sums were realised, the present appeal arises out of an application made in 1920 in which execution was sought for against respondent no. 1 and also the present respondents nos. 2 to 4 and defendants nos. 5 to 7. the court of first instance allowed the execution to proceed against all the judgment-debtors, except nos. 6 and 7 who are not before us. on appeal the learned district judge held that the application was barred by limitation. his ground for holding this was that the last step-in-aid of execution in execution case of 1911 was on the 27th june 1911, and as the second execution case was filed on the 6th july 1914, more than three years later, the application for execution in 1914 is barred by limitation,.....
Judgment:

1. This is an appeal against the order of the learned District Judge of Khulna in appeal rejecting an application for execution. The facts appear to be these: The decree-holder obtained a decree against Rani Durga Sundari in 1900. Execution was taken out against Rani Durga Sundari in 1911 in which year she died. Execution was again taken out in 1914. Execution was sought for against the son, who was defendant No. 1, and the grandsons, who are judgment-debtors Nos. 2 to 4, were included as parties. This application was dismissed in default. Subsequently, further applications for execution were made against defendant No. 1. The other judgment-debtors were described as parties but execution was not asked for against them. Various sums were realised, The present appeal arises out of an application made in 1920 in which execution was sought for against respondent No. 1 and also the present respondents NOS. 2 to 4 and defendants NOS. 5 to 7. The Court of first instance allowed the execution to proceed against all the judgment-debtors, except Nos. 6 and 7 who are not before us. On appeal the learned District Judge held that the application was barred by limitation. His ground for holding this was that the last step-in-aid of execution in execution case of 1911 was on the 27th June 1911, and as the second execution case was filed on the 6th July 1914, more than three years later, the application for execution in 1914 is barred by limitation, and that as execution has not been sought against respondents Nos. 2 to 4 in the former proceeding it was open to them to raise in the present proceeding the question whether the execution proceedings of 1914 were not barred by limitation.

2. The decree-holder appeals and contends, relying on the Privy Council ruling in Mungul Pershad Dichit v. Grija Kant Lahiri 8 C. 51 : 11 C.L.R. 113 : 8 I.A. 123 : 4 Sar, P.C.J. 249 : 4 Ind. Dec. (N.S.) 32 (P.C.), that it is not open to the respondents Nos. 2 to 4 to re-open the question as to whether the application for execution in 1914 was barred by limitation. We think that the learned District Judge was correct in the finding he has come to. It is clear, nor is it disputed, that execution was not asked for against respondents Nos. 2 to 4 before 1920. No doubt they were put down as parties to the suit but execution was not asked against them, and, therefore, it is quite clear, reading Rules 11, 22 and 23 of Order XXI, that it was not then open to them to come in and raise any objection. The only person who could come in and rake any objection was the person against whom execution was sought. So far as regards the application for execution in 1914 is concerned, they could not have urged any objection because the case was disposed of in default and, therefore, they had no opportunity, even if they had the right, of being beard, With regard to the other applications for execution, as I have pointed out, they would not have been allowed to be heard on the objection looking at the terms of Order XXI, Rules 11, 22 and 23. The present case, therefore, falls within the principles of the ruling reported as Harendra Lal Roy Chowdhry v. Sham Lal Sen 27 C. 210 : 14 Ind, Dec, (N.S.) 139, where it has been held that a judgment-debtor who was not a party to a previous application for execution of a decree or to any order made upon it is not precluded from showing that the said application was barred by limitation and that, therefore, it was not in accordance with law. With regard to the application of 1914 it was clearly barred by limitation under the provisions of Article 182 The last step-in-aid of execution in 1911 was taken on 27th June 1911 when the notice was issued, and this was the last step taken in aid of execution in that proceeding.

3. For these reasons, the order of the learned Judge is right. The appeal fails and is dismissed with coats. We assess the Hearing fee at two gold mohurs.

Panton, J.

4. I agree.


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