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E.H. Stevens, Receiver to the Estate of Babu Gajadhar Parshad Sahu and ors. Vs. Kamta Pershad - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in2Ind.Cas.941
AppellantE.H. Stevens, Receiver to the Estate of Babu Gajadhar Parshad Sahu and ors.
RespondentKamta Pershad
Cases ReferredMadho Prasad v. Kesho Prasad
Excerpt:
limitation act (xv of 1877), schedule ii, article 179 - proper court--application to take some step-in-aid of execution--must be for relief which court can grant--civil procedure code (act xiv of 1882), section 248--notice to judgment-debtor--court must issue though not asked for by decree-holder. - .....the decree of which execution is sought was made on the 27th february 1903. it was alleged by the decree-holder in the court below that there had been previous applications for execution on the 9th january and the 30th april 1904. no trace, however, of these applications has been found on the record and it must be assumed for our present purpose that the alleged applications were never made. it is not disputed, however, that there was an application for execution on the 10th july 1905. the present application was made on the 4th february 1908. the question which was raised in the court below and has been argued before us is whether the application of the 10th july 1905 is sufficient to save the decree from the bar of limitation. the learned small cause court judge held that the.....
Judgment:

1. This is a Rule issued by this Court under Section 25 of the Provincial Small Cause Courts Act calling upon the opposite party to show cause why the order of the Small Cause Court Judge of Mozafferpore dismissing an application for execution of a decree on the ground that it was barred by limitation should not be set aside. The decree of which execution is sought was made on the 27th February 1903. It was alleged by the decree-holder in the Court below that there had been previous applications for execution on the 9th January and the 30th April 1904. No trace, however, of these applications has been found on the record and it must be assumed for our present purpose that the alleged applications were never made. It is not disputed, however, that there was an application for execution on the 10th July 1905. The present application was made on the 4th February 1908. The question which was raised in the Court below and has been argued before us is whether the application of the 10th July 1905 is sufficient to save the decree from the bar of limitation. The learned Small Cause Court Judge held that the application was not in accordance with law inasmuch as the decree-holder did not on the basis of it ask for the issue of a notice upon the judgment-debtor under Section 248, Code of Civil Procedure, as he was bound to do, because on the date of the application, more than one year had elapsed from the date of the decree. In our opinion the view taken by the learned Small Cause Court Judge is manifestly erroneous. Article 179, Clause 4 of the second schedule of the Limitation Act provides that an application for execution of a decree may be made within three years from the date of applying in accordance with law to the proper Court for execution. There is no suggestion here that the application was not made to the proper Court because 'proper Court' as defined in the second explanation to Article 179 means the Court whose duty it is to execute the decree. The only question, therefore, is whether the application was in accordance with law. It has been held in the cases of Munawar Husain v. Jani Bijai Shankar 27 A. 619 and Manorath Das v. Ambica Kanta Bose 9 C.L.J. 443 : 1 Ind Cas. 57 : 13 C.W.N. 533 that an application to take some step-in-aid of execution, in order that it may be in accordance with law, must be one framed for some relief which the Court is competent to grant. Now, in the present case the decree-holder in the application of the 10th July 1905 prayed for the issue of a warrant of arrest against the judgment-debtor. He was entitled to ask for this relief and the Court was also competent to grant it, only before the Court could proceed to take action upon the application, it was its duty under Section 248, Code of Civil Procedure, to issue a notice upon the judgment-debtor inasmuch as more than one year had elapsed between the date of the decree and the application for execution. The learned vakil for the judgment-debtor suggested that it was obligatory upon the decree-holder to insert an express prayer in the application itself for the issue of notice under Section 248. A reference, however, to the provisions of Section 235 of the Code makes it manifest that it was not obligatory upon the decree-holder to do so. Section 235 specifies the details which are to be inserted in the application for execution of a decree and none of them refers to the issue of notice under Section 248. The view that it is the duty of the Court to issue a notice under Section 248, even though the decree-holder may not have formally asked for the issue of such notice, is supported by the decision of this Court in the case of Jagannath Khan v. Brojonath Pal 29 C. 580. The learned vakil for the judgment-debtor suggested that the view taken by this Court in that case is opposed to the decision of a Full Bench of this Court in Ambica Pershad Singh v. Surdhari Lal 10 C. 851. An examination of the judgment of the Full Bench, however, shows that the contention is unfounded. In that case the question raised was whether an application for the issue of sale proclamation under Section 287 of the Code was sufficient to save the decree from the bar of limitation. It appears to have been contended that the application was not sufficient- inasmuch as such an application was not necessary under the law. The Full Bench decided that the application was sufficient, even though it was not obligatory upon the decree-holder to make such an application. This decision, if it has any bearing on the case before us, does not support the contention of the learned vakil for the judgment-debtor. Reference was also made to the decision of the Allahabad High Court in Madho Prasad v. Kesho Prasad 19 A. 337. That case, however, is clearly distinguishable. There the application for execution of a decree was made after the death of the judgment-debtor against the dead man, without' his representatives being brought on the Record. The learned Judges of the Allahabad Court held that the application was not sufficient to save the decree from the bar of limitation. The present case is obviously of an entirely different description. It may be observed, however, that this Court in the case of Bipin Behari Mitter v. Bibi Zohra 35 C. 1047 declined to follow the decision in Madho Prasad v. Kesho Prasad 19 A. 337. On these grounds we must hold that the view taken by the Small Cause Court Judge cannot be supported.

2. The Rule is made absolute, and the order of the Court below discharged. Execution will proceed in due course. The petitioner is entitled to his costs in this Court. We assess the hearing fee at two gold mohurs.


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