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Apurba Krishna Sett Vs. Rash Behari Dutt - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in60Ind.Cas.880
AppellantApurba Krishna Sett
RespondentRash Behari Dutt
Excerpt:
limitation act (ix of 1808,), schedule i, article 183 - mortgage--order absolute for sale--application to enforce order--limitation. - .....of section 89. it was, however, not till the 19th may 1919 that the representative of the decree holder (who had died in the meantime) applied to the court to enforce his rights and real life his dues under the judgment. mr. justice rankin has held that the application is barred by limitation.2. article 183 of the schedule to the indian limitation act provides that an application to enforce a judgment, decree or order of any court established by royal charter, in the exercise of its ordinary original civil jurisdiction, must be made within 12 years from the date when a present right to enforce the judgment, decree or order accrues to some person capable of realising the right. there is a proviso to the article which lays down that the period of 12 years shall be computed from.....
Judgment:

Asutoch Mookerjee , J.

1. This appeal raises the question, whether an application by the appellant to enforce a judgment of this Court, made in the exercise of its ordinary original civil jurisdiction, is or is not barred by limitation. The suit was instituted for the enforcement of a mortgage-security. On the 30th June 1804, the usual preliminary decree under Section 88 of the Transfer of Property Act was made. On the 26th January 1905, the Registrar submitted a report on the accounts, and the 18th August 1905 was fixed for re-payment. But the amount was not paid, and on the 22nd March 1907 an order absolute was made in accordance with the provisions of Section 89. It was, however, not till the 19th May 1919 that the representative of the decree holder (who had died in the meantime) applied to the Court to enforce his rights and real life his dues under the judgment. Mr. Justice Rankin has held that the application is barred by limitation.

2. Article 183 of the Schedule to the Indian Limitation Act provides that an application to enforce a judgment, decree or order of any Court established by Royal Charter, in the exercise of its ordinary original civil jurisdiction, must be made within 12 years from the date when a present right to enforce the judgment, decree or order accrues to some person capable of realising the right. There is a proviso to the Article which lays down that the period of 12 years shall be computed from the date of payment, acknowledgment or revivor where there has been snob payment, acknowledgment or revivor. It is not disputed that the facts of the present case do not bring it within the proviso. Consequently, the question is, has the application been made within 12 years from the date when a present right to enforce the judgment or decree or order accrued to some person capable of realising the right. Such right, in our opinion, accrued to the decree-holder when the order absolute for sale was made on the 22nd March 1907 It has been finally suggested on behalf of the appellant that the right could not accrue till the order had been filed; but no attempt has been made to support this contention by reference to principle or authorities. The reason is obvious if the contention of the appellant were to prevail, the result would follow that the period of limitation might be indefinitely extended by reason of the laches of the decree-holder, who might not, as has happened in the case before us, file the decree for years. We may add that no attempt has been made in this Court to reiterate the desperate argument advanced before Mr. Justice Rankin and rightly overruled by him, that no rule of limitation applies to this matter. In our opinion, the application has been properly dismissed as barred by limitation and this appeal most be dismissed, with separate costs f to the two nets of respondents.

Ernest Fletcher, J.

3. I agree.


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