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Hon'ble Brojendra Kishore Roy Choudhury Vs. Dil Muhmud Sarkar and Ors. (04.02.1918 - CALHC) - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in44Ind.Cas.604
AppellantHon'ble Brojendra Kishore Roy Choudhury
RespondentDil Muhmud Sarkar and Ors.
Cases ReferredPran Krishna Das v. Protap Chandra Dalai
Excerpt:
limitation act (ix of 1903), schedule i, article 182, clause (5) - step-in-aid of execution--filing list of witnesses, whether-step-in aid of execution. - .....individual properties and not the properties of the father, the original judgment-debtor. on that objection proceedings continued from the 7th june to the 8th january 1912 and we find that on the 25th november 1911, both parties having in the meanwhile been directed to adduce evidence in support of their respective cases, the decree-holder filed a list of witnesses and intimated to the court that he was ready to proceed with his case. on the application of the judgment-debtor the case was, however, adjourned to the 16th of december in order to enable the judgment-debtor to produce one of his witnesses. we are of opinion that this act of the decree-holder, namely, the filing of the list of witnesses and intimating to the court that he was ready to proceed with the case, implied an.....
Judgment:

1. This is an appeal against an order of the Subordinate Judge of Mymensingh dismissing an application for execution on the ground that it is barred by limitation. The decree is dated the 31st March 1908. The first application for execution was on the 20th January 1911, the second on the 22nd August 1914 and the third or the present application on the 6th October 1915. There is no dispute that if the second application was within time, the third application was also within time from the date of the second, and the only question, therefore, that has been argued before us is whether the second application for execution filed on the 22nd August 1914, was or was not barred by the three years' rule of limitation.

2. Now, it appears that after the first application for execution had been made, the judgment-debtor put in an objection to the effect that the properties attached and sought to be sold were not transferable, and secondly, that the said properties were his own personal and individual properties and not the properties of the father, the original judgment-debtor. On that objection proceedings continued from the 7th June to the 8th January 1912 and we find that on the 25th November 1911, both parties having in the meanwhile been directed to adduce evidence in support of their respective cases, the decree-holder filed a list of witnesses and intimated to the Court that he was ready to proceed with his case. On the application of the judgment-debtor the case was, however, adjourned to the 16th of December in order to enable the judgment-debtor to produce one of his witnesses. We are of opinion that this act of the decree-holder, namely, the filing of the list of witnesses and intimating to the Court that he was ready to proceed with the case, implied an application to the Court to take the evidence which he was prepared to adduce and to repel the objection taken by the judgment-debtor. In effect, therefore, we think that on a reasonable interpretation, this should be taken to be an application to the Court to take some steps in-aid of execution; and in this view we are fortified by the decision reported as Pran Krishna Das v. Protap Chandra Dalai 38 Ind. Cas. 536 : 21 C.W.N. 423.

3. We, therefore, decree this appeal and remand the case to the original Court with directions that the decree-holder be now at liberty to proceed with the execution.

4. As, however, this appeal has succeeded on a point not taken in either of the Courts below we make no order as to costs.

5. Let the record be sent down to the lower Court without delay.


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