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Masirunnissa Khatun Vs. Joy Chand Lal Boyed and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.238
AppellantMasirunnissa Khatun
RespondentJoy Chand Lal Boyed and ors.
Cases ReferredHarish Chandra Shaha v. Chandra Mohan Dass
Excerpt:
execution - order passed in execution--res judicata--civil procedure code (act xiv of 1882), section 13--general principles of law--interlocutory order in suit--application for refund of amount levied in execution of decree subsequently set aside--limitation act (xv of 1877), schedule ii, article 178--limitation act (ix of 1908), schedule i, article 181. - .....the; plaintiff in a suit against some persons known as the shaha. she obtained a decree. but on appeal the decree was modified by this court in favour of the defendants in that suit. before the disposal of the appeal to the high court, the plaintiff realised the whole amount decreed to her by the lower court from the defendants in execution. after the modified decree had been passed by this court, the defendants applied to the executing court for execution of their decree for costs and also for refund of the money levied from them in excess. in consequence of the decree of the high court, the position of the parties was altered, that is, mashirun, the plaintiff, became the judgment-debtor and the defendants became the decree-holders.2. it appears that on the application for refund of.....
Judgment:

1. This is an appeal against an order of the Subordinate Judge of Rajshahi, dated the 25th February 1911. The facts giving rise to the present appeal are that one Mashrunnessa Khanum was the; plaintiff in a suit against some persons known as the Shaha. She obtained a decree. But on appeal the decree was modified by this Court in favour of the defendants in that suit. Before the disposal of the appeal to the High Court, the plaintiff realised the whole amount decreed to her by the lower Court from the defendants in execution. After the modified decree had been passed by this Court, the defendants applied to the executing Court for execution of their decree for costs and also for refund of the money levied from them in excess. In consequence of the decree of the High Court, the position of the parties was altered, that is, Mashirun, the plaintiff, became the judgment-debtor and the defendants became the decree-holders.

2. It appears that on the application for refund of the money paid in excess by the defendants decree-holders, a petition of objection was filed by Mashirun on the 22nd July 1911, objecting to the execution on the ground of limitation lb is now contended that the application for refund was not an application for execution and so came under Section 181 of the Limitation Schedule and was barred three years after the decree whether other application for execution had been made or not. This point was not specifically taken in the petition of the 22nd July. But the objection therein made is in general terms and to the effect that the claims of the decree-holders generally are barred by limitation. On this objection having been put in by Mashirun, an order was passed by the executing Court on the 13th August 1910 to the following effect: 'Judgment-debtor's Pleader states that he has no instructions to proceed with the objection taken by judgment-debtor. There is nothing to show how the decree is time barred. So it is ordered that the judgment-debtor's objection be disallowed.... Execution to proceed.' Then we find that another petition of objection was made in the same execution case by Mashirun on the 28th November 1910, on which the order appealed against was passed on the 25th February 1911. The lower Court has disallowed the objection. Hence the present appeal. The grounds taken on behalf of the appellant are (1) that the order of the 13th August, 1910 is not res judicata and (2) that the learned Subordinate Judge has erred in law in holding that the application for refund was governed by Article 182 of the second Schedule of the Limitation Act, governing applications for the execution of a decree in a Civil Court.

3. With regard to the first point, we have only to refer to the case of Ram Kirpal v. Rup Ruari 6 A. 269 : 11 I.A. 37 where it was held by their Lordships of the Judicial Committee that an order passed in the course of an execution proceeding, which was not appealed, was final between the parties not under Section 13 of the Civil Procedure Code, but upon general principles of law, as an interlocutory order in the suit. Their Lordships of the Judicial Committee remarked: It was as binding between the parties and those claiming under them, as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as final judgment in a. suit is binding upon them in carrying the judgment into execution.' In the present case, under the order passed on the 13th August 1910, the general plea of limitation raised by Mashirun was disallowed. In the same proceeding on a later date, she raised the same plea again. In accordance with the dictum of the Judicial Committee in the case just quoted, the order passed on the 13th August 1910 is binding upon the parties. The question, therefore, cannot be re-opened.

4. As regards the second point, namely, whether Article 181 or 182 of the Limitation Schedule is applicable to the present case, the whole question of limitation was disposed of by the order dated the 13th August 1910. It is, therefore, not really unnecessary to discuss the question which of these Articles is applicable. In the case of Harish Chandra Shaha v. Chandra Mohan Dass 28 C. 113 it was held that an application for refund of the amount levied in execution of an ex parte decree subsequently set aside is governed by Article 178, second Schedule of the Limitation Act, which corresponds to Article 181 of Schedule I of the present. Act. We think that, as held in the case just cited, the application should be governed by Article 181. But as a matter of fact, as the lower Court observed, the matter cannot now be re opened inasmuch as the whole question of limitation was decided by the order of the 13th August 1910, which is binding upon the parties.

5. The appeal is dismissed with costs. We assess the hearing fee at two gold mohurs.

6. Joy Chandpal Boyed was added as a party respondent under this Court's Order No. 4939, dated the 25th August 1911. But that order reserved any question of limitation that might arise in connection with the addition of the party respondent for future consideration. In view of our decision in the appeal, the learned Pleader for the respondent does not press the point and we do not decide it.


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