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Jotindra Kumar Dass Vs. Gagan Chandra Pal and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal677(1),45Ind.Cas.903
AppellantJotindra Kumar Dass
RespondentGagan Chandra Pal and ors.
Cases Referred and Eusuffzeman Sarkar v. Sanchia Lal Nahata
Excerpt:
limitation act (ix of 1908), schedule i, article 182(5) - execution of decree--payment of portion of decretal amount by judgment-debtor--limitation, fresh starting point of. - .....decree on the ground that the decree is timebarred. the decree is dated the 9th may 1913. the decree-holder, who is the petitioner before us, alleges that the judgment-debtor made a payment to him of rs. 25 on the 10th june 1914, and a farther payment of rs. 50 on the 20th november 1914. he also alleges two earlier payments which for the purposes of this rule we may disregard. on the 6th june 1917 he made an application to the court for certifying the above payments. on the 9th june 1917 he next applied for execution of his decree. without taking evidence in the matter the learned subordinate judge held that the payments of the 10th june 1914 and 20th november 1914 to which we have referred, taken with the decree-holder's application of tb.e 6th (june, 1917, were not sufficient to.....
Judgment:

1. This Rule is directed against an order by which the Court of Small Causes of Dacca has refused the application for execution of a certain decree on the ground that the decree is timebarred. The decree is dated the 9th May 1913. The decree-holder, who is the petitioner before us, alleges that the judgment-debtor made a payment to him of Rs. 25 on the 10th June 1914, and a farther payment of Rs. 50 on the 20th November 1914. He also alleges two earlier payments which for the purposes of this Rule we may disregard. On the 6th June 1917 he made an application to the Court for certifying the above payments. On the 9th June 1917 he next applied for execution of his decree. Without taking evidence in the matter the learned Subordinate Judge held that the payments of the 10th June 1914 and 20th November 1914 to which we have referred, taken with the decree-holder's application of tb.e 6th (June, 1917, were not sufficient to save limitation. We are unable to hold that on the facts before him he he has come to a proper decision in this matter. Weneedonly refer him to the cases reported as Chhoto Rakhal Das Majumdar v. Jogendra Narain Mazumdar 4. N.L.R. 120; Lakhi Narain Ganguli v. Felamani Dasi 27 Ind. Cas. 11 : 20 C.L.J. 131 18 C.W.N. cxcvi (196) and Eusuffzeman Sarkar v. Sanchia Lal Nahata 34 Ind. Cas. 606 : 20 C.W.N. 272: 43 C. 207 23 C.L.J. 390. From these cases it will appear that the payments of June and November 1914 being within three years from the date of the decree and the application of the 6th June 1917 being again within three years from the date of those payments, it follows that if those payments were ip fact made, the decree-holder will have a fresh starting point for limitation within the meaning of Article 182(5) of the First Schedule of the Limitation Act.

2. Under these circumstances we set aside the order made by the Court of Small Causes and return the record to him, in order that after the taking of evidence he may proceed to dispose of the application before him in accordance with law.


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