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Rajani Bandhu Chatterjee and anr. Vs. Kali Prasanna Chatterjee - Court Judgment

LegalCrystal Citation
Subject Civil; Limitation
CourtKolkata
Decided On
Judge
Reported inAIR1924Cal419,74Ind.Cas.279
AppellantRajani Bandhu Chatterjee and anr.
RespondentKali Prasanna Chatterjee
Cases ReferredHulasi v. Maiku
Excerpt:
limitation act (ix of 1908), section 14, schedule i, article 182 - execution of decree--direction that execution should take place in certain manner--appeal, whether step-in-aid of execution--exclusion of time spent in prosecuting previous application--subsequent application, whether in continuation of previous application. - .....appellate court and by this court on the 10th september, 1907, and 9th march, 1910. in 1912 the decree-holder made the first application for execution of the decree which directed the judgment-debtors to carry out certain works and to restore the disputed property to its original condition. the application was dismissed by the trial court on the 17th january, 1913. on appeal the district judge directed that a commissioner should be appointed with a view to carry out the terms of the decree, and a commissioner was accordingly appointed. he submitted a report to which exceptions were taken. these were overruled on the 9th july, 1913, by the district judge who accepted the report of the commissioner and directed that the execution should take place on its basis. the decree-holder,.....
Judgment:

1. This is an appeal by the judgment-debtors against an order in execution of a decree. The decree was made by the trial Court on the 3rd July, 1906, and was successively confirmed by the lower appellate Court and by this Court on the 10th September, 1907, and 9th March, 1910. In 1912 the decree-holder made the first application for execution of the decree which directed the judgment-debtors to carry out certain works and to restore the disputed property to its original condition. The application was dismissed by the trial Court on the 17th January, 1913. On appeal the District Judge directed that a Commissioner should be appointed with a view to carry out the terms of the decree, and a Commissioner was accordingly appointed. He submitted a report to which exceptions were taken. These were overruled on the 9th July, 1913, by the District Judge who accepted the report of the Commissioner and directed that the execution should take place on its basis. The decree-holder, however, did not proceed with the execution and the proceedings were apparently discontinued. On the 16th September, 1914, the decree holder made the second application for execution. This application was based on the assumption that the decree-holder was not bound by the determination of the District Judge on the previous application that execution should proceed on the basis of the report of the Commissioner, The result was that the judgment-debtors objected. On the 15th March, 1916, the trial Court directed that execution should take place on the basis of the order of the 9th July, 1913. The decree-holder was dissatisfied and appealed. The appeal, as might have been expected, was dismissed on the 3rd July, 1916. A second appeal was preferred to this Court with the result that it was dismissed on the 9th February, 1917. The obvious course for the decree-holder would have been, after the dismissal of the appeal by this Court, to proceed with the execution as was directed by the Court of first instance. No steps, however, were taken till the 23rd January, 1920, when he presented the third application for execution. He was forthwith met with the plea of limitation on the part of the judgment-debtors. The Courts below have held that the application was not barred by limitation. We are of opinion that the view taken by the lower Courts cannot be supported.

2. In the first place, it is plain that Article 182 of the schedule to the Limitation Act is of no assistance to the decree-holder. He is not able to show that within three years of the date of the present application that is, subsequent to the 23rd January, 1917, he applied to the proper Court to take a step-in-aid of execution. The fact that he brought an appeal to this Court on the 9th February, 1917, against the decision of the District Judge could not clearly be treated as an application to the proper Court to take a step-in-aid of execution. The expression 'proper Court' as defined in Explanation II of Article 182 does not apply to a case such as this.

3. In the next place, it is clear that Section 14 of the Limitation Act is of no avail. Sub-section (2) to Section 14 which has been invoked on behalf of the respondents, provides that 'in computing the period of limitation prescribed for any application the time during which the applicant has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of Appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.' It cannot seriously be maintained that the previous application for execution could not be entertained by the Court from defect of jurisdiction or other cause of a like nature. The Court dealt with it on the merits and came to the conclusion that the judgment-debtors and the decree-holder were alike bound by the order made in the course of the first execution proceedings. Li these circumstances, it is difficult to appreciate how the decree-holder can possibly escape the bar of limitation.

4. It has been finally suggested, however, that the present application for execution may be treated, not as a fresh application but as one in continuation of the second application for execution. This view is clearly unsupportable on the authorities. It was pointed out by the Judicial Committee in the case of Qamar-ud-din Ahmad v. Jawahir Lal [1905] 27 All. 334 that an application for execution may in certain contingencies be treated as one to revive and carry through a pending execution; thus the second application might be treated as one not to initiate a new proceeding but to revive the previous proceeding when the latter was arrested by reason of circumstances over which the decree-holder had no control. This principle clearly does not apply to the present case. Here the difficulty has been created entirely by the decree-holder himself, as he ignored the order made by the Execution Court in the first proceeding. In these circumstances, the principle has clearly no application : see Krishto Coomar Nag v. Mahabat Khan [1880] 5 Cal. 595 and Baroda Kanta Bose v. Chandra Kanta Ghose [1902] 29 Cal. 682. The decision of the Allahabad High Court in Hulasi v. Maiku [1883] 5 All. 236 was pronounced under very special circumstances. If the principle recognised in that case could be applied, the result would be that the order made by the District Judge on the 9th July, 1913, would have to be treated as an order capable by itself of execution; even that conclusion, however, would be of no assistance to the respondent, for he never sought to execute the decree till the 23rd January, 1920, after the lapse of the period of limitation.

5. The result is that the order of the District Judge is set aside, and the application for execution of the decree dismissed with costs in all Courts. The hearing fee is assessed at one gold mohur in this Court


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