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Allahabad High Court
Ram Newaz And Ors. vs Ram Charan And Ors. on 26 July, 1895
Equivalent citations: (1896) ILR 18 All 49
Author: Aikman
Bench: Aikman


Aikman, J.

1. The appellants in this case obtained a simple money decree on the 23rd of February 1881, against the respondents. On the 2nd of May 1892 they applied to execute this decree. Several previous applications had been made, but proved infructuous. The Court in which the application of the 2nd of May 1892 was made, of its own motion struck off the application professing to maintain an attachment which had been made. In my opinion no order of such a nature can be passed. If there is no pending execution before the Court, it follows that there can be no subsisting attachment. The order which many subordinate Courts are in the habit of passing to strike off an execution case whilst maintaining an attachment which has been made in that case, is, I consider, a contradiction in terms. Such an order, it appears to me, can only have one object, and that is to prevent an execution case being shown as pending for an unduly long time on the files of the Court. If there is reason for maintaining an attachment there can be no reason for striking off the application in execution which led to its being made. On the 7th of March 1893 the decree-holders presented another application for the execution of their decree. The judgment-debtors objected that the application was barred by the twelve years rule of limitation. Their objection was overruled by the Munsif, who held that the application of the 7th of March 1893 was in reality no fresh application, but was merely in continuance of the application of the 2nd of May 1892. The judgment-debtors appealed to the Subordinate Judge, who held that the application of the 7th of March 1893 was a fresh application, and could not be executed, as the decree had become time-barred. Against this order of the Subordinate Judge the decree-holders have appealed to this Court. In my opinion whether the application of the 7th of March 1893 be considered to be a fresh application or merely an application in continuance of that of the 2nd of May 1892, it cannot be granted. Section 230 of the Code of Civil Procedure provides that where an application to execute a decree for the payment of money has been made under this section and has been granted, no subsequent application to execute the same decree shall be granted after the expiration of 12 years from the date of the decree sought to be enforced. It appears from the records of the previous case that although the previous applications failed for one reason or another to realise any money, at least two of them were “granted,” inasmuch as property was attached in compliance with the request contained in the applications. It follows from this that a Court cannot now grant any application to execute, as it is forbidden to do so by the terms of Section 230 of the Code of Civil Procedure. That section does not prescribe that no subsequent application shall be received after the expiration of 12 years; it forbids any application being granted. To comply with the request made by the decree-holders would be to disobey the law as contained in that section. The decree-holders endeavoured to prove that the judgment-debtor had by fraud prevented the execution of the decree within 12 years immediately preceding the date of their application, but this attempt failed.

2. For the above reasons the appeal fails and is dismissed with costs.

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