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H.V. Low and Co. Ltd. Vs. Raja Pramatha Nath Malia and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1943Cal100
AppellantH.V. Low and Co. Ltd.
RespondentRaja Pramatha Nath Malia and ors.
Cases Referred and National Insurance Co. Ltd. v. Ganganendra Nath Tagore
Excerpt:
- .....then there can be no execution for a further period of seven years so long as the interest is paid year by year during these seven years. on behalf of the decree-holder the learned advocate-general contends that the words 'for seven years thereafter' mean seven years after the date of assumption of charge of the property by the court of wards and not seven years after the expiry of the first four years. his contention is that the maximum period during which the decree cannot be executed is not eleven years, but seven years. for the first four years the decree cannot be executed whether or not interest has been paid, but after the expiry of four years the decree can be executed unless the judgment-debtor can show that he has been paying interest year by year during this period of.....
Judgment:
ORDER

Sen, J.

1. This is an application for the execution of a decree passed against a person whose property is under the management of the Court of Wards. The Court of Wards assumed charge of the property on 1st June 1937, and this application for execution was made on 18th February 1942. A preliminary objection is taken on behalf of the Court of Wards that by reason of the provisions of Section 10C, Court of Wards Act, this application is not maintainable. Section 10C runs as follows:

Where any property is in charge of the Court of Wards no civil Court shall execute any decree or order against the person or property of the ward within four years from the date of the commencement of the Bengal Court of Wards (Amendment) Act, 1935, or from the date of the assumption of charge of the property by the Court of Wards, whichever is later, and for seven years thereafter if the interest due under such decree or order be paid in full every year during the said seven years.

2. On behalf of the Court of Wards the section is interpreted thus : Where a decree is passed against a person whose property is in charge of the Court of Wards no application for execution of that decree can be made within four years from the date of the assumption of the charge of the property by the Court of Wards. This protection for four years is given irrespective of whether interest on the decree has been paid or not. Even if the decree bears interest, and the Court of Wards has not paid it, execution cannot be taken out within these four years. Then there is a further period of time given to the Courts of Wards in the case of a decree which bears interest, and that period is one of seven years. The Court of Wards will get the benefit of this further seven years only if it pays interest in full every year during the seven years. It is argued that if this interpretation be accepted, then, in a case where the decree bears interest, no execution can be applied for until the expiry of five years, because the Court of Wards must be given the opportunity of paying interest for the first year of the subsequent period of seven years, and that interest will not be payable till the expiry of that year.

3. In the present case, it is pointed out, that the period of five years has not expired, and it is submitted that if the Court of Wards pays interest on the decree before the expiry of the fifth year from the date on which the Court of Wards assumed charge, then there can be no execution for a further period of seven years so long as the interest is paid year by year during these seven years. On behalf of the decree-holder the learned Advocate-General contends that the words 'for seven years thereafter' mean seven years after the date of assumption of charge of the property by the Court of Wards and not seven years after the expiry of the first four years. His contention is that the maximum period during which the decree cannot be executed is not eleven years, but seven years. For the first four years the decree cannot be executed whether or not interest has been paid, but after the expiry of four years the decree can be executed unless the judgment-debtor can show that he has been paying interest year by year during this period of four years. If he can show that, he will get a further extension of three years provided he pays the interest year by year. He points out that this decree bears interest, and that no interest has yet been paid and that more than four years have elapsed. On these grounds he submits that execution may now proceed.

4. In my opinion the contention urged on behalf of Court of Wards should prevail. The words 'for seven years thereafter,' in my opinion, mean for seven years after the expiry of four years from the date' on which the Court of Wards assumed charge of the property. In order to accept the interpretation put upon the section by the learned Advocate-General I would have to substitute the word 'or' for the word 'and' in the sentence 'and for seven years thereafter.' The use of the word 'and' indicates that the period of seven years should be added to the period of four years in the case of decrees bearing interest where the interest is paid in full every year during the said period of seven years. There are no decisions which have directly decided this point. The view I have taken finds support in the observations made in Manager Kasimbazar Raj Estate v. Rakhal Das : AIR1943Cal99 and National Insurance Co. Ltd. v. Ganganendra Nath Tagore ('37) 42 C.W.N. 374. Under these circumstances I hold that the application is not maintainable and that it must be dismissed with costs.


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