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Calcutta High Court
Hari Charan De vs Hari Charan Datta Poddar on 9 March, 1910
Equivalent citations: 6 Ind Cas 43
Bench: Mookerjee, Teunon


1. Two points have been urged in this appeal, first that the application for execution of the decree is barred by limitation; and secondly, that the judgment-debtor is entitled to credit for various payments made from time to time. The decree which is now sought to be executed was made in a mortgage-suit on the 21st September 1901 and was subsequently made absolute on the 21st February 1902. On the 11th August 1902, the decree-holder made an application in which he acknowledged the payment of two sums of money and alleged that as the judgment-debtor had agreed to pay this amount under an arrangement, it was not necessary to proceed with the execution. Upon his prayer, execution was dismissed on the day following. The second application for execution was made on the 19th July 1905. This was dismissed on the 10th August inasmuch as service of notice upon the judgment-debtor was not proved. A third application for execution was made on the 20th November 1907 and notice was served upon the judgment-debtor under Section 248 of the Code of 1882. The judgment-debtor appeared and alleged among other things that the decree had been satisfied by various payments made between the 11th October 1902 and the 20th March 1905. He also alleged that these payments were proved by means of entries made in a hatchita which was produced and filed in Court. The decree-holder thereupon applied for leave to withdraw the application and the result was that on the 11th May 1908, the, application of the decree-holder was dismissed and the objections of the judgment-debtors were also dismissed as it became unnecessary to consider them in the events which had happened. The present application for execution was made on the 10th August 1908. The judgment-debtor objected that the decree had been satisfied by the payments alleged in the previous proceedings. He also argued that the application for execution was barred by limitation. The Court of first instance found upon the evidence that the alleged payments had been proved and in this view dismissed the application which, it held, must also fail on the ground of limitation. Upon appeal, the learned District Judge held that the application was not barred by limitation and that the question of the alleged payment could not be investigated. In this view he allowed execution to proceed.

2. In the present appeal, it has been contended that the application is barred by limitation. This contention is obviously untenable. No doubt, the second application for execution was made on the 19th July 1905, that is more than three years after the date of the first application presented on the 7th May 1902. But the application of the 11th August 1902, was clearly an application to the proper Court to take a step-in-aid of execution. It was in substance an application by the decree-holder to certify to the Court the payments which had been made to him by the judgment-debtor out of Court. It is now well-settled that an application to the proper Court by the decree-holder to certify a payment, when the payment asserted has been actually made, is sufficient to bring a case within Clause (4) of Article 179 of the Limitation Act. In support of this view, it is sufficient to refer to the case of Rakhal Das Mozumdar v. Jogendra Narain Mozumdar 8 Ind. Cas. 374 : 10 C.L.J. 467. The first contention of the appellant, therefore, fails.

3. As regards the second contention of the appellant, it is clear that as the various payments alleged to have been made were not certified to the Court and as the time within which the judgment-debtors could have compelled the decree-holder to certify the payments has already expired, the Court of execution cannot recognise the alleged payments. It was faintly suggested by the learned Vakil for the appellant that Section 258 of the Code of 1382, has no application to proceedings in execution of mortgage-decrees. There is, however, no foundation for this contention. The second objection, therefore, fails. But we are of opinion that no costs should be allowed to the decree-holder in the present proceedings.

4. The result, therefore, is that subject to this variation, the order of the Court below must be affirmed. The decree-holder will be entitled to execute the decree but he will not be entitled to any costs at any stage of the proceedings.

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