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Madras High Court
Samia Pillai vs Chockalinga Chettiar And Anr. on 18 October, 1893
Equivalent citations: (1894) 4 MLJ 8


JUDGMENT

1. The question for decision in this case is whether the last application for execution made on the 6th February 1891 was in accordance with law within the meaning of Article 179 of Schedule II of the Limitation Act so as to amount to a step in aid of execution sufficient to prevent the present application being time barred.

2. That the application was presented by the party entitled to execute the decree and in order to obtain execution is not denied, but it is contended that as 1st defendant who was dead at the time was named as the party against whom execution was sought, the , application must be treated as a nullity, and consequently the present application held to be time barred.

3. The Subordinate Judge observes that the mention of the deceased first defendant’s name in column 9 of the application was, probably, a mistake, made by the Vakil’s gumastah. It was no doubt a bona fide mistake. Whore there has been in fact an application for execution made by the party entitled to make it, the mere fact of a mistake having been made in giving the particulars required by Section 235 of the Code of Civil Procedure, cannot, we think, have the effect of rendering the application a nullity. This is also the view adopted in Ramanadan v. Periatambi I. L. R. 6 M, 250 and Fnzloor Ruhman v. Altaf Hossein I. L. R. 10 C, 541. In this view the application of 6th February 1891 is sufficient to save limitation both against 1st defendant’s legal representatives and also against his joint judgment-debtors.

4. We dismiss this appeal with costs.


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