Rajlakhi Dabi vs Rajkumar Banerji And Anr. on 11 December, 1885

Calcutta High Court
Rajlakhi Dabi vs Rajkumar Banerji And Anr. on 11 December, 1885
Equivalent citations: (1885) ILR 12 Cal 441
Author: Cunningham
Bench: Cunningham, O’Kinealy


Cunningham, J.

1. The question raised in this appeal is whether the application made on the 28th March 1884 to execute the decree made on the 19th March 1880 is barred by limitation.

2. Two grounds are stated as grounds on which limitation should be held not to be barred. The first is that on the 22nd April 1881 the sale was confirmed. No copy of the order passed or of any application to pass it, if such there was, has been produced before us. As it lies on the judgment-creditor to show us that the period of limitation has not expired, it is his duty, if he wishes to rely upon anything that took place, to supply the Court with proper evidence of the proceedings to enable us to be satisfied that there was any such application: as it is, we can only say that we have nothing to go upon which would justify our holding that any application was made at that time, and we do not consider that a mere order passed in execution, irrespective of any application, should be considered as an application within the meaning of Article 179 of the schedule of the Limitation Act.

3. The next ground on which it is urged that limitation is not barred is that on the 10th January 1882, the decree-holder applied for a copy of the decree, in order, as the District Judge has found, that she might make a fresh application for execution. Here again the judgment-creditor has thought fit not to place on the record a copy of this application. We are therefore in the dark as to what were its terms, and as to whether it showed on the face of it anything from which we could properly infer that it was for the purpose of execution. We have, however, the fact that no execution was applied for until March 1884. Therefore, if the purpose with which the application was made was to obtain execution, it was certainly a long time before that purpose was carried into effect. Taking the mere fact of an application for a copy of the decree, we are not prepared to find that it would be fairly construed as an application to the Court to take a step in furtherance of the execution of the decree within the scope of para. 4 of Article 179 of the schedule of the Limitation Act.

4. We think, therefore, that the judgment-creditor has failed on both grounds to show that there has been any such application between the making of the decree and the present application which would prevent the period of limitation from expiring.

5. We must, therefore, admit the appeal, reverse the decisions of both the lower Courts, and dismiss the application for execution with costs in all the Courts.

O’ Kinealy, J.

6. I concur with the judgment which has just been delivered in holding that the application for execution is barred.

7. The judgment-creditor says that under Clause 4 of Article 179 of the schedule of the Limitation Act, he has a right to execute the decree. That clause runs as follows: “(Where the application next hereinafter mentioned has been made) the date of applying in accordance with law to the proper Court for execution, or to take some step in aid of execution of the decree.” His contention is that he has made an application to the Court to take a step in aid of execution. There is no such application on the record. If we were to decide the case upon such an application, we would be deciding it upon a document which has never been put before us, which we have not seen and of which we do not know anything.

8. Moreover, I agree in considering that a mere order of Court which requires no application does not fall within that clause. That clause evidently means that there must be some application to the Court to take some step. And where a step has been taken or an order has been passed without any application at all, it does not seem to fall within the purview of the law.

9. Then it is said that an application to get a copy of the decree returned which was in the record room of the Judge’s Court, is an application to the Court to take a step in aid of execution.

10. It appears to me, that an application for the return of a document in the record room is by itself an indifferent act. And there is nothing on this record to show us how or in what way it would aid execution. No copy of the decree is required by law to be filed in execution. I therefore concur in thinking that the application for execution should be dismissed.

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