Bansi vs Sikree Mal

Young, J.—This is a second appeal against the order of the District Judge of Meerut, dated the 14th December 1889, dismissing the appeal of Bansi, judgment-debtor, appellant, from the decree of the Munsif of Meerut, dated the 22nd March 1889. The judgment-debtor had objected to his creditor''s taking out execution of the decree, dated the 20th July 1880, and the ground taken was that more than the legal period had expired between the date of the present application for execution and the last legal occasion of such execution. It appears that the first application for execution was made on the 13th April 1881, while the second application was dated the 17th February 1885, a period therefore of nearly four years from the first application for execution. It is alleged that the second application, that is, the one in 1885, was time-barred and therefore such proceedings could in no wise form a legal starting point for the computation of a new period of limitation. It is alleged that the third application for execution which took place on the 12th May 1886, was therefore time-barred and invalid, and could not suffice to keep alive a decree already dead; and that consequently the application of the 3rd June 1889 was time-barred. These objections were disallowed by the Munsif and the learned District Judge concurs with him in that opinion. The learned Judge says:--

"In this case execution of decree was first applied for in April 1881, and proceedings continued till towards the end of 1882. On the 17th February 1885, another application was made, notice issued, and attachment followed, but no objection was raised on the plea of limitation, and this being so I do not consider that it can now be raised at the time of this third period of execution proceedings." [I may observe parenthetically that the learned Judge should have said, at the time of this fourth period of execution proceedings.] The learned Judge continues:-- "Apart from this, it is shown that on the 18th March 1882, the time of sale drawing near, the decree-holder applied for permission to bid and this was allowed, and this most, it seems to me, be considered to be a step taken in aid of execution, and in my opinion therefore the plea of limitation even would not avail.

Against this contention Mr. Madho Prasad quoted Toree Mahomed v. Mahomed Mabood Bux I.L.R., 9 Calc. 730 where it was held that "the mere payment of a court-fee in connection with execution-proceedings with a view to obtain leave to bid far property then up for sale in execution of a decree does not constitute the taking of some step in aid of execution within the meaning of No. 179, sch. ii of the Limitation Act (XV of 1877)."

I observe that in that case the act alleged to be in furtherance of the execution was the mere payment of a fee of Rs. 2. In the present instance it seems that the decree-holder did more. He applied to the Court for permission to bid, and, with all respect to this Calcutta Court, I am unable to see how such proceeding is other than taking a step in aid of execution of decree.

Mr. Madho Prasad further urged upon my notice that the proceedings taken by the decree-holder in the year 1885 were very faulty, in fact, the learned counsel stigmatized them as fraudulent. He urged that no proper notice was given to the judgment-debtor, who was in jail at the time, and was not served with notice (as he alleges) until after the expiry of the time for making objections. Be that as it may, it does not appear to me that a Court can rip up the past proceedings of other Courts and determine, for the purposes of deciding of limitation in subsequent execution proceedings, whether those past proceedings were properly conducted or not. No doubt the words of the law, No. 179, clause (4), do show that the application, the date of which is to be the starting point for a new period of limitation, must be an application in accordance with law to the proper Court, but I take it that it does not empower Courts in subsequent'' applications for execution to discuss the propriety and legality of the action of previous Courts in previous execution-proceedings, but merely denotes that the application which is to form the starting point for a new period of limitation is to be an application not made out of Court, but made in Court, according to the general law for execution of decrees, and provided such application falls generally tinder the provisions of the law, the regularity of the procedure of former Courts is a matter beyond the cognizance of a subsequent Court of execution. As to the chief objection taken by Mr. Madho Prasad, namely, that nearly four years had elapsed between the date of the first and the second applications for execution, I am of opinion that the Judge assigns good reasons for believing that the second application was not time-barred, and, this being so, I have merely expressed my opinion that the lower appellate Court has come to a right conclusion in affirming the decree of the Court of first instance. The appeal is dismissed. Respondent not appearing, no order as to costs.