Bhaobunessury vs Judobendra Narain Mullick

Prinsep, J.—The lower Appellate Court has held that the application u/s 108 of the CPC of 1877 is barred, inasmuch as it was not made within thirty days from the date of executing the process, that is, the attachment in execution of the ex-parte decree. For the judgment debtor it is contended that there was no such attachment made, and that this application is in time. The lower Court, however, held that in the absence of any evidence on the part of the defendant, it would, u/s 114 of the Evidence Act, presume that the attachment was properly made.

We think that the view taken by the lower Court was perfectly correct, and that it was incumbent on the defendant judgment-debtor to show that he made his application u/s 108 within thirty days from the date of the first process in execution of the decree passed against him. Having failed to do so, his application was correctly disallowed as barred. The appeal is, therefore, dismissed with costs.