Ambica Pershad Singh And Ors. vs Surdhari Lal on 5 June, 1884

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Calcutta High Court
Ambica Pershad Singh And Ors. vs Surdhari Lal on 5 June, 1884
Equivalent citations: (1884) ILR 10 Cal 851
Author: R Garth
Bench: R Garth, Mitter, Mcdonell, Prinsep, Wilson


Richard Garth, C.J.

1. I think it clear that in this case the application made by the decree-holder on the 1st of May 1880 for the issue of a sale proclamation was an application “to take some step in aid of execution” within the meaning of Clause 4 of Article 179 of the Limitation Act of 1877.

2. The language of that clause is somewhat more comprehensive than that of Clause 4 of Article 167 of the Limitation Act of 1871, but under either Act I should consider that the application, which is the subject of the present reference, was not barred by time.

3. I think it very probable that the construction which was put upon the latter clause in the case of Joobraj Singh v. Buhooria Alumbasee Koer 7 C.L.J. 424 may have been induced by the language of the Full Bench judgment in the case of Chunder Coomar Roy v. Bhogobutty Prosonno Roy I.L.R. 3 Cal. 235 : 1 C.L.R. 23.

4. It was said, I observe, in that judgment that the words “applying to enforce the decree” in Article 167 of the Limitation Act of 1871 meant the application (under Section 212 of the Code) by which proceedings in execution are commenced; but as I myself took part in that decision, and, in fact, delivered the judgment of the Court, I am enabled to say that this language was unduly narrow, and that it was used with reference to the particular point which was then under discussion.

5. That point was, whether the payment into Court of the costs of a proclamation of sale by challan within the three years, coupled with an application for sale, which was made beyond the three years, was in itself the meaning of Clause 4 of Article 167 of the Act of 1871.

6. The Full Bench held that it was not, and it was with reference to this question that the judgment was pronounced. But there is no doubt, as I have said before, that the language of our judgment might well have been misconstrued,

7. I think it clear that under either Limitation Act, but certainly under the Act of 1877, an application, such as was made in the present case, is an application either “to enforce the decree” or “to take some step in aid of execution.”

8. The point that Mr. Hundley, who appeared for the appellant in this case, did his best to impress upon us was this: that the application to issue a proclamation being unnecessary by law, was no application at all. He contended that under Section 287 of the Code, the Court itself was bound to have issued the proclamation, without any action being taken on the part of the decree-holder.

9. But in this, I think, he is in error; notwithstanding that the attachment had issued, the proceedings from time to time for the purpose of enforcing the sale must always be, and, as a matter of practice, always are, initiated by the decree-holder.

10. The Court cannot ascertain of its own motion what the wishes of the decree-holder are, or what portion of the property he desires to sell, unless an application is made for that purpose.

11. As the rest of the Court are also of opinion that the application is not barred, and as this appears to be the only question in the case, we think that the appeal should be dismissed with costs.

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