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Nookoor Chandra Mullick Vs. Rajani Kanta Ghose and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in59Ind.Cas.51
AppellantNookoor Chandra Mullick
RespondentRajani Kanta Ghose and ors.
Excerpt:
civil procedure code (act v of 1908), section 2(2) - decree--order setting aside ex parte decree--rubkari drawn up--rubkari, whether decree--execution--limitation, terminus a quo. - .....of the civil procedure code, order xx, rule 7, held that limitation ran from the 27th of february 1915, and that the appellant's application was barred.6. in this, we are of opinion, they have fallen into error.7. the rubkari is not a decree within the meaning of section 2(2) of the code, but is an order within the meaning of section 2(1) which completes and renders capable of execution the incomplete order made on the 27th of february. limitation, therefore, runs from the 8th of march 1915 and the present application is, therefore, within time. it is next contended that, in the view thus set out, to second appeal has, but this is to overlook the definition of decree-holder in section 2(3) and also the provisions of section 36 of the code, which has the effect of making the.....
Judgment:

Teunon, J.

1. In this case it appears that on the 27th February 1915 the Munsif of Serampore granted 'with costs' what was in effect an application for letting aside an ex parte decree.

2. On the 8th of March following, a formal document described as a 'rubkari' was drawn up. In this document the sum (Rs. 26-10 0) payable by way of acs's to the successful applicant was specified.

3. On the 6th March 1918 the applicant, who is the appellant before us, applied in execution for the realisation of his costs.

4. The question before us is, whether the application in execution is barred by limitation.

5. Both the Courts regarded or treated the 'rubkari' of the 8th of March 1915 as a decree and, applying the provisions of the Civil Procedure Code, Order XX, Rule 7, held that limitation ran from the 27th of February 1915, and that the appellant's application was barred.

6. In this, we are of opinion, they have fallen into error.

7. The rubkari is not a decree within the meaning of Section 2(2) of the Code, but is an order within the meaning of Section 2(1) which completes and renders capable of execution the incomplete order made on the 27th of February. Limitation, therefore, runs from the 8th of March 1915 and the present application is, therefore, within time. It is next contended that, in the view thus set out, to second appeal has, but this is to overlook the definition of decree-holder in Section 2(3) and also the provisions of Section 36 of the Code, which has the effect of making the question that arise and now arises between the parties one determined under the provisions of Section 47 of the Code.

8. In the result, this appeal is decreed with costs. Hearing fee one gold mohour.

Beachcroft, J.

9. I agree.


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