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Calcutta High Court
Gobind Pershad Alias Gobind Lal vs Rung Lal on 22 June, 1893
Equivalent citations: (1893) ILR 21 Cal 23
Author: R A Gordon
Bench: Rampini, Gordon


Rampini and Gordon, JJ.

1. The question raised in this appeal is whether an application for execution of a decree is barred by limitation.

2. The first Court holds that the application is not barred, and cites certain authorities in support of its judgment.

3. On appeal the District Judge has set aside the order of the first Court, being of opinion that the application is barred, and he relies on the case of Raghunandun Pershad v. Bhugoo Lall I.L.R. 17 Cal. 268.

4. In second appeal it is contended that the District Judge is wrong and that the Munsif is right.

5. The present application for execution was made on the 17th of September 1891, and a previous application for execution was made on the 2nd of July 1888. Prima facie, therefore, the application of the 17th of September 1891 is barred. It appears, however, that the following proceedings were taken in connection with the application of the 2nd of July 1888. The judgment-debtor objected to the execution of the decree, as being barred by limitation, on the 10th of September 1888; and on the 24th of that month the Munsif held that the application was not barred, and on the same date he passed an order for the sale of the judgment-debtor’s property in execution of the decree. The property was accordingly sold.

6. Thereafter the judgment-debtor applied to set aside the sale; and on the 26th of November 1888 his objections were rejected and the sale was confirmed.

7. The judgment-debtor then applied on the 29th November 1888 for a review of the order confirming the sale, and notice was duly issued upon the decree-holder. He appeared and unsuccessfully opposed the application for review, which was granted. Subsequently, on the 28th January 1889, the decree-holder put in an application, praying that the judgment-debtor’s application to set aside the sale might be rejected, at the same time applying for confirmation of the sale. His application was, however, refused, and the sale was set aside.

8. It is now contended before us, with reference to the application of the 28th January 1889, that that application was in effect an application to the Court by the decree-holder to take some steps in aid of the execution of his decree; and if that be so, the present application is in time. We think on the authority of the decision in the case of Kewal Ram v. Khadim Husain I.L.R. 5 All. 576 that that application was an application to take some steps in aid of execution, and was therefore sufficient to avoid the bar of limitation. We concur in the view taken by the learned Judges who decided that case, that an application by a decree-holder, praying that a petition of the judgment-debtor to set aside the sale of property belonging to him should be rejected and the sale be confirmed (which the application of the 28th January 1889 in fact is), is an application falling within the meaning of Article 179 (4), schedule II of Act XV of 1877. The learned District Judge relies on the decision of this Court in Piaghunandun Pershad v. Bhugoo Lall I.L.R. 17 Cal. 268, which, however, we think is not applicable to the present case.

9. We observe that the appeal before the District Judge was argued ex parte, and apparently the application of the 28th January 1889 was not brought to his notice.

10. In this view of the case, we set aside the order of the District Judge, and restore that of the Munsif with costs.

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