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Narsingh Dayal Singh and ors. Vs. Kali Charan Singh - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.147
AppellantNarsingh Dayal Singh and ors.
RespondentKali Charan Singh
Excerpt:
limitation act (xv of 1877), scheduled ii, article 179(4) - step-in-aid of execution--application for time to prove service of notice under section 248 civil procedure code, 1882. - .....was an application in aid of execution. the learned pleader for the appellant admits that the execution. could not proceed without proof of due service of the notice and it has been held by this court that an application to the court to do an act in aid of execution, even though it is refused, is an application within the meaning of the article of the limitation act for the purpose of saving limitation. in this case, we are of opinion that the object of the applicant' was to induce the court to do an act in furtherance of the execution, that is to say, to afford time within which proof of the service of the notice could be given. it was not an ordinary application for adjournment, but, so faunas, we gather from the facts, it was an application made with a definite object in order.....
Judgment:

1. The only question raised in this appeal is whether the lower Court was right in the view which it took that the application made on the 12th August 1904 was an application to the proper Court to take some steps-in-aid of execution of the decree. The application was to the effect that the Court would allow the applicant a week's time to adduce evidence to prove that the notice under Section 248, Civil Procedure Code, had been duly served. That-application was dismissed and the question is whether that application was an application in aid of execution. The learned pleader for the appellant admits that the execution. could not proceed without proof of due service of the notice and it has been held by this Court that an application to the Court to do an act in aid of execution, even though it is refused, is an application within the meaning of the article of the Limitation Act for the purpose of saving limitation. In this case, we are of opinion that the Object of the applicant' was to induce the Court to do an act in furtherance of the execution, that is to say, to afford time within which proof of the service of the notice could be given. It was not an ordinary application for adjournment, but, so faunas, we gather from the facts, it was an application made with a definite object in order to obtain from the Court, an order in furtherance of the execution of the decree. In these circumstances, we think that the order is not open to objection, and that, there fore, it should be confirmed. The appeal is accordingly dismissed with costs, two gold mohurs.


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