Skip to content


Balaram Das Bhagat Vs. Raja Mukanda Deb - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.370
AppellantBalaram Das Bhagat
RespondentRaja Mukanda Deb
Cases ReferredBoatwright v. Boatwright L.R.
Excerpt:
limitation - court to adhere strictly to terms of law--construction to be liberal--narrow construction to detriment of decree-holder not to be adopted--limitation act (ix of 1908), schedule i, article 182 clause (1), (2)--decree--appeal--execution of decree of primary court--limitation to be calculated from decree of appellate court. - .....upon appeal, the district judge has allowed execution to proceed, in the view that the decree-holder is entitled in equity to the exclusion of time occupied in obtaining probate of the will of the deceased decree-holder.2. on the present appeal, it has been contended by the judgment-debtor that there is no provision of the limitation act entitling the respondent to an exclusion of the time during which proceedings were pending in the court of probate. in reply to this argument, it has been conceded by the respondent that section 17 of the limitation act is of ho assistance to him but it has been suggested that section 9 may possibly save the application from the bar of limitation. in our opinion, it is plain that neither section 9 nor section 17 avails the respondent. it has.....
Judgment:

1. This appeal is directed against an order by which the Court of Appeal below has, in reversal of the order of the Court of first instance, directed execution to proceed on the basis of a decree obtained by one Taponidhi on the 25th June 1906, against the present appellant. An appeal was preferred against this decree by the defendant, and during the pendency of the appeal, the plaintiff-respondent died on the 17th July 1906. The appellant thereupon brought on the record one Harekrishna as the representative-in-interest of the deceased plaintiff. On the 11th July 1903, a decree was made by consent of parties, in modification of the original decree. Mean while, on the 25th August 1906, the present respondent had applied for Probate of a Will alleged to have been executed by Taponidhi on the 17th July 1906. Probate was granted on the 2nd May 1908. On the 18th March 1910, the executor applied for execution of the decree of the 25th Jane 1906. The application was resisted on the ground that it was barred by limitation, as it had been made more than three years after the date of the decree as provided in Clause (1) of Article 182 of the second Schedule of the Limitation Act of 1908. The Court of first instance gave effect to this objection and dismissed the, application. Upon appeal, the District Judge has allowed execution to proceed, in the view that the decree-holder is entitled in equity to the exclusion of time occupied in obtaining Probate of the Will of the deceased decree-holder.

2. On the present appeal, it has been contended by the judgment-debtor that there is no provision of the Limitation Act entitling the respondent to an exclusion of the time during which proceedings were pending in the Court of Probate. In reply to this argument, it has been conceded by the respondent that Section 17 of the Limitation Act is of ho assistance to him but it has been suggested that Section 9 may possibly save the application from the bar of limitation. In our opinion, it is plain that neither Section 9 nor Section 17 avails the respondent. It has been finally argued by the respondent that the application is saved by Clause (2) of Article 182 of the first Schedule of the Limitation Act, 1903. That clause provides that where there has been an appeal, an application for execution of the decree may be made within three years from the date of the final decree,' or order of the Appellate Court or the withdrawal of the appeal. It has been contended that this clause is comprehensive enough to cover the case before us; there has been an appeal in this case and the application for execution has also been made within three years from the date of the final decree. In reply, it has been contended for the appellant that Clause (2) applies only to cases where the application for execution is made in respect of the final decree of the Appellate Court, and it has no bearing in a case of the description now before us where the application is made for execution of the decree of the primary Court, but the period of limitation is sought to be calculated from the date of the final decree of the Appellate Court.

3. The question raised as to the true construction of Article 182 Clause 2 of the first Schedule of the Limitation Act, 1908, appears to be one of first impression, and no judicial decision precisely in point has been brought to our notice. Our attention, however, has been drawn on behalf of the respondent to the cases of Gungamoyee Dassee v. Shib Sunkur Bhuttacharjee 3 C.L.R. 430; Nurul Hasan v. Muhammad Hasan 8 A. 573 : A.W.N. (1886) 237; Kristo Churn Bass v. Radha Churn Kur 19 C. 750 and Abdul Rahiman v. Maidin Saiba 22 B. 500 to show that the second Clause of Article 182 ought to be liberally construed and that its application ought not to be restricted to the detriment of the decree-holder. Reference has also been made to several cases in each of which the second Clause was applied, namely, Akshoy Kumar v. Chunder Mohan 16 C. 250 where the appeal was rejected because presented out of time; Wazir Mahton v. Lulit Singh 9 C. 100 where the appeal was dismissed, because incompetent, and Muhammad Razi v. Karbalai Bibi 32 A. 136 : 7 A.L.J. 58 : 5 Ind. Cas. 473 where the appeal was not heard on the merits, because it abated by reason of the failure of the appellant to bring the legal representatives of the respondent on the record within the time allowed by law. In our opinion, the second Clause should not be interpreted to the detriment of the decree-holder in the case before us, because, as stated in Nundun Lall v. Rai Joykishen 16 C. 598 at p. 602 in a question of limitation, the Court will adhere as strictly as possible to the terms of the law. It has not bean disputed, and it, cannot seriously be disputed, that the phraseology of the clause in question, strictly construed, completely covers the case before us. It is farther clear that the first Clause of Article 182 applies to cases in which the application is made for execution of the decree of the Court of Appeal because that decree, whether made in affirmance, reversal, or modification of the accrue of the primary Court, is the only decree capable of execution, on the principle explained by this Court is Ramcharan v. Lakhikant 7 B.L.R. 704 : 16 W.R. (F.B.) 1 and by the Judicial Committee in Kistokinker v. Burrodacaunt 14 M.I.A. 465 : 17 W.R. 292 : 10 B.L.R. 101. If this view is adopted, it is clear that Clause (2) ought not to be interpreted in the sense suggested by the appellants, because it is well settled, as was pointed by Sir George Jessel, M.R. in Boatwright v. Boatwright L.R. 17 Eq. 71 : 43 L.J. Ch. 12 : 29 L.T. 603 : 22 W.R. 147 that the Court would be slow to interpret a statute of limitation so as to affect rights as to the enforcement of which there was no doubt. In the case before us, the liability of the appellant has been established by the decree, and we are not inclined to put a narrow construction upon Clause (2) with a view to assist him to avoid payment of his just dues. It is thus unnecessary to consider the other question raised by the appellant, namely, whether the respondent is entitled to execute the consent decree in favour of Harekrishna who, it is stated, was not the proper legal representative of the original decree-holder.

4. The result is that the order of the District Judge is affirmed and this appeal dismissed with costs. We assess the hearing fee at three gold mohurs.

5. It is conceded that this judgment will govern the other appeal (Miscellaneous Appeal No. 248 of 1911) which is also dismissed with costs. We assess the hearing fee in that case at two gold mohurs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //