Bhaobunessury vs Judobendra Narain Mullick on 20 June, 1882

Calcutta High Court
Bhaobunessury vs Judobendra Narain Mullick on 20 June, 1882
Equivalent citations: (1883) ILR 9 Cal 869
Author: Prinsep
Bench: Prinsep, O’Kinealy


Prinsep, J.

1. The lower Appellate Court has held that the application under Section 108 of the Code of Civil Procedure of 1877 is barred, inasmuch as it was not made within thirty days from the date of executing the process, that is, the attachment in execution of the ex-parte decree. For the judgment debtor it is contended that there was no such attachment made, and that this application is in time. The lower Court, however, held that in the absence of any evidence on the part of the defendant, it would, under Section 114 of the Evidence Act, presume that the attachment was properly made.

2. We think that the view taken by the lower Court was perfectly correct, and that it was incumbent on the defendant judgment-debtor to show that he made his application under Section 108 within thirty days from the date of the first process in execution of the decree passed against him. Having failed to do so, his application was correctly disallowed as barred. The appeal is, therefore, dismissed with costs.

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