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Suja HosseIn Alias Rehamut Dowlab Vs. Monohur Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1897)ILR24Cal244
AppellantSuja HosseIn Alias Rehamut Dowlab
RespondentMonohur Das
Cases ReferredFutteh Narain Chowdhry v. Chundrabati Chowdhrain I. L. B.
Excerpt:
limitation act (xv of 1877) schedule ii, article 180 - execution of decree--revicor--civil procedure code (act xiv of 1882), sections 223, 230, 248 (a)--insolvent, adverse possession of. - .....that if more than one year elapses between the date of the decree and the application for its execution a notice shall issue to the party against whom execution is applied for, requiring him to show cause why the decree should not be executed against him. the form of the notice under that section is to be found in no. 135 in the fourth schedule to the code and runs as follows: 'whereas.... made application to this court for execution of decree in civil suit no.....of 18....this is to give you notice that you are to appear before this court.........on the....day of...18....either in person or by a pleader of this court or agent duly authorized and instructed to show cause, if any, why execution should not be granted.' that was the notice which was served on the appellant in this.....
Judgment:

O'Kinealy and Hill, JJ.

1. This is an appeal from the decision of the Subordinate Judge of the 24-Pergunnahs, dated the 24th August 1894.

2. The facts out of which the litigation has arisen may be shortly stated as follows: On the 11th December 1893 an application was made purporting to be one in execution of a decree by transmitting a certified copy of the decree to the Court of the District Judge of the 24-Pergunnahs, with a certificate that no portion of the decree bad been satisfied within the jurisdiction of the High Court on its Original Side. On that the following order was passed: Leave granted to verify and let notice issue (returnable four days after service) under Section 248 (a), Civil Procedure Code. This notice was issued under the Rules of Court. Section 248 (a) enacts that if more than one year elapses between the date of the decree and the application for its execution a notice shall issue to the party against whom execution is applied for, requiring him to show cause why the decree should not be executed against him. The form of the notice under that section is to be found in No. 135 in the fourth schedule to the Code and runs as follows: 'Whereas.... made application to this Court for execution of decree in Civil Suit No.....of 18....this is to give you notice that you are to appear before this Court.........on the....day of...18....either in person or by a pleader of this Court or agent duly authorized and instructed to show cause, if any, why execution should not be granted.' That was the notice which was served on the appellant in this Court He showed no cause, and on the 19th December 1893 Mr. Justice Sale recorded the following order: 'Let certified copy issue, no cause being shown.'

3. We take it that the meaning of that order is that no cause was shown against the notice which had been served upon the appellants. Mr. Justice Sale then sent a certified copy of the decree with a certificate of non-satisfaction, to the District Judge of the 24-Pergunnahs. Looking, therefore, at the form of the notice, and looking at the fact that no cause was shown, we think that the question is, what is the effect of what was done before Mr. Justice Sale. It was contended by the pleader for the appellant that the older of the 19th December 1893, being an order which was passed on an application made under Section 223 of the Code for transmission of the decree, was not an order for execution, and that it could not therefore be said that there was a revivor of the decree within the meaning of Article 180. On the other hand it was contended by Mr. Woodroffe on behalf of the respondent that the order of the 19th December was an order for execution, inasmuch as it was made after such notice as is required by Section 248 (a), and that it therefore had the effect of reviving the decree within the meaning of that article. We think the order of the 19th December made after notice to show cause, was, according to the rule laid down in Ashootosh Dutt v. Doorga Churn Chatterjee I.L.R. 6 Cal. 504 and the case of Futteh Narain Chowdhry v. Chundrabati Chowdhrain I. L. B. 20 Cal. 551 such a revivor as prevented the decree from being barred by Article 180.

4. There was another question raised before us, and that was in regard to adverse possession. When the appellant showed cause against execution in the Court of the Subordinate Judge of 24 Pergunnahs he did not say that he had no interest that could be attached. What he said was that the 'property that has been put under attachment having vested in the Official Assignee under the law, the order passed in the execution proceedings for the attachment of the said property is wrong, contrary to law, and cannot remain in force.' In other words, he did not say that he had no attachable interest in the property, but he pleaded the right of the Official Assignee in the property. The appellant riled a schedule as an insolvent on the 21st February 1882 in which he stated in regard to this property: 'On the 1st March 1880, the insolvent deposited with these creditors as security for the payment of any balance of account that might be due to them the title deeds of the house and premises at Garden Reach (purchased in the names of the insolvent and one Ali Hossein since deceased) situate on the lands belonging to the ex-King of Oudh to which house and premises the insolvent and the heirs of the said Ali Hossein are entitled in equal shares or moieties.' Again in the year 1893 we find him striving to perfect his title by a conveyance from the Officiating Agent of the Governor-General in Council in favour of Dabir-ud-Dowla and Ahmed Hossein, as to one-half of this property in his own favour, and as to the other half, it was admitted at the trial that he had been in possession of the land all along. We have therefore these facts to deal with, admitted possession, striving to perfect a had title in 1893, and not raising the question when attachment issued, that he had no title that could be attached. On all these facts we think that the Subordinate Judge was justified in coming to the conclusion that ho had a title by adverse possession which was capable of being attached.

5. We dismiss the appeal with costs.


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