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Charu Chandra Mazumdar Vs. Fanindra NaraIn Chouhdury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal310,68Ind.Cas.897
AppellantCharu Chandra Mazumdar
RespondentFanindra NaraIn Chouhdury and ors.
Excerpt:
execution of decree - limitation--execution stayed by order of court--period of stay, if can, be deducted. - .....by an order dated 25th january 1916. the order, however, was modified to this extent that the decree holder was allowed to proceed with the sale in execution of his decree, if the amount due on account of the other decree was kept in deposit out of the purchase money of the property which would he sold. the sale was held on the 26th january 1916 and the decree-holder applied for setting off the purchase money against his dues under the decree. that application was allowed apparently under some misapprehension. the judgment-debtors applied to have the sale set aside and it was set aside on the 5th february 1916. there was an appeal by the decree-holder and a second appeal both of which were dismissed and the execution of this decree was stayed by an order of the court. then on the.....
Judgment:

1. This is an appeal from an order of the learned Subordinate Judge of Pabna dismissing an application for execution of a decree on the ground that it is barred by limitation. We have not had the advantage of hearing the respondents in this case as they did not appear. The material dates which appear from the judgment of the learned Subordinate Judge are these. The decree which is sought to be executed was attached in execution of another decree which appears to have been obtained against the decree bolder on the 24th January 1916 and the execution of the present decree was stayed] by an order dated 25th January 1916. The order, however, was modified to this extent that the decree holder was allowed to proceed with the sale in execution of his decree, if the amount due on account of the other decree was kept in deposit out of the purchase money of the property which would he sold. The sale was held on the 26th January 1916 and the decree-holder applied for setting off the purchase money against his dues under the decree. That application was allowed apparently under some misapprehension. The judgment-debtors applied to have the sale set aside and it was set aside on the 5th February 1916. There was an appeal by the decree-holder and a second appeal both of which were dismissed and the execution of this decree was stayed by an order of the Court. Then on the 3rd February 1917 the attachment order against the present, decree was withdrawn and the decree-holder applied for execution of his decree on the 22nd January 1920. A notice was issued on the judgment-debtors as to this application. Apparently the judgment debtors took no objection and an order was made on the 28th February 1920 for attachment of the properties mentioned in the application.

2. Two points have been urged on behalf of the decree-holder in support of his appeal. The first ground is that the present application for execution was not barred as he is entitled to deduct the period daring which the execution of his decree was stayed by an order of the Court, that is to say, the period between the 5th February 1916 and the 3rd February 1917 when the attachment order against his decree was withdrawn. The last step previous to the 5th February 1916 taken by the decree-holder in aid of execution was on the 26th January 1916 and if the period stated above be deducted then his present application is within three years of the last step taken in aid of execution. It appears that it is so and, therefore, the present application for execution is within time. We need not therefore, consider the other point raided by the learned Vakil for the appellant.

3. The judgment of the lower Appellate Court is, therefore, sat aside and the case is sent back to the Court of first instance in order that it nay proceed with the execution of the decree.

4. The decree-holder is entitled to his costs in all Court is, hearing-fee in this Court being assessed at two gold mohurs.


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