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Chandra Kumar Dhar Vs. RamdIn Dhar and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in64Ind.Cas.727
AppellantChandra Kumar Dhar
RespondentRamdIn Dhar and anr.
Cases ReferredLimitation Act Kartick Nath Pandey v. Juggernath Ram Marwari
Excerpt:
limitation act (ix of 1908), schedule i, article 182, clause (5) - execution of decree--application for revival of previous proceedings in execution--step-in-aid of execution. - .....had been revived by the third. there. was no appeal to this court and no action was taken on the high courts, subsequent order of 7th february 1916, the fourth application having apparently failed, the decree holders gallantly returned to the charge with a fifth application on the 4th april 1917. it is this application we are concerned with. the judgment-debtor has again raised the plea of limitation and the plea has again been rejected by the courts below, on this occasion on the ground of res judicata.2. it is clear that the second application was never revived and that the assumption to the contrary in the decisions of the courts below on the fourth application was erroneous. if the question whether the fourth application was in time depended on that assumption, there mighty be some.....
Judgment:

Richardson, J.

1. The short point in this appeal in whether an application for execution is barred by limitation. The decree was made on the 4th September 1906, and several attempts have been made to execute it. The present is the third occasion on which the proceedings have come before the High Court. The judgment of the Court in reference to the second application for execution is reported as Chandra Kumar v. Ram Din 13 Ind. Cas. 702 15 C.L.J. 251 : 16 C.W.N. 493. That application, however, had already been dismissed when the judgment was delivered. It is not disputed that the third application filed on the 12th May 1911 was in time. The application was treated in the first instants as an independent application for execution and as such was dismissed for default on the 2nd February 1912. But the proceedings appear to have been continued by the application made on the 19th December 1913, praying that the hairs of a decree holder who had died might be brought on the record and that the proceedings on the second application should be revived. The order made thereon by the first Court (dated 20th January 1914) was misunderstood. On appeal the High Court sent the case back with the direction that notice should be formally given to the judgment-debtor to show cause why revival should not be allowed. The judgment is dated 7th February 1916. Meanwhile on the 27th October 1914, the decree holder had made a fourth and independent application for execution, in answer to which the judgment debtor had pleaded limitation. The plea had been rejected by both the Courts below, the judgment of the District Judge on first appeal being dated 12th November 1915. The case seems to have been decided on the footing that the second application had been revived by the third. There. was no appeal to this Court and no action was taken on the High Courts, subsequent order of 7th February 1916, The fourth application having apparently failed, the decree holders gallantly returned to the charge with a fifth application on the 4th April 1917. It is this application we are concerned with. The judgment-debtor has again raised the plea of limitation and the plea has again been rejected by the Courts below, on this occasion on the ground of res judicata.

2. It is clear that the second application was never revived and that the assumption to the contrary in the decisions of the Courts below on the fourth application was erroneous. If the question whether the fourth application was in time depended on that assumption, there mighty be some force in the argument urged for the judgment debtor that decisions were subject to any orders that might be made in the appeal, pending at the time before the High Court. But it is quite immaterial whether the second application was or was not revived, it has bean held that an application for the review of an order striking off an execution case and for the restoration of the case to the file is itself a step in aid of execution within the meaning of Clause 5 of Article 182 of the Limitation Act Kartick Nath Pandey v. Juggernath Ram Marwari 27 C. 285 : 14 Ind. Dec. (N.S.) 188. An application for the revival of previous proceedings for execution is within this ruling. It follows that the applications of 12th May 1911 and 19th December 1913 are both to be regarded as a step-in aid. The fourth application was made within three years of the last mentioned date, and the fifth within three years of the fourth. Both the fourth and the fifth applications were, therefore, in time, and the question whether the judgment debtor is barred by the doctrine of res judicata from again raising the plea of limitation need not be considered.

3. The conclusion arrived at by the Courts below in right and this appeal must be dismissed with costs (hearing fee two gold mohurs).

4. We cannot leave this case without noticing the grave inconvenience caused by the delay which occurs in the High Court before appeals of this kind, classed as miscellaneous appeals, are brought to a hearing. The delay is apt to hang up proceedings in the Courts below indefinitely and puts a premium on the adoption of dilatory and obstructive tactics by dishonest judgment-debtors. Costs are increased and the time of the Courts is wasted by dreary and barren discussions. We direct that a copy of the judgment be placed before the Chief Justice for such action as his Lordship may think fit to take.

Beachcroft, J.

5. I agree.


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