Ghaneshwar Singh vs Than Mall and Another

Kulwant Sahay, J.—On the 6th of March 1918 the respondent decree-holders obtained a decree for money against Bhaveshwar Singh. Bbaveshwar Singh died, and on the 16th of February 1921 an application was made for execution of the decree against his widow, Mt. Jageshwari Bahuasin. Some properties belonging to the estate of Bhaveshwar Singh were sold, and purchased by the decree-holders on the 17th of August 1921. The sale was confirmed and possession was delivered to the decree-holders, auction-purchasers, in February 1922. The decree, however, was not satisfied by the sale, and fresh execution was taken out on the 2nd of May 1924 against the widow and against Laliteshwar Singh, the father of the present appellant, Ghaneshwar Singh. This application was dismissed and nothing was realized. The present execution was taken out on the 23rd of December 1924 against the widow, Mt. Jageshwari Bahuasin, and against Babu Ghaneshwar Singh, the son of Babu Lfiliteshwar Singh, who was dead.

Objection was taken to the execution on behalf of Babu Ghaneshwar Singh to the effect that, so far as he was concerned, the execution was barred by limitation. The reason why Ghaneswar Singh was brought on the record as a judgment-debtor was that, under a kulachar prevailing amongst the junior branches of the family of the Darbhanga Raj, widows did not inherit babuana properties. This was held by the Privy Council in Ekradeshwar Singh v. Janeshwari Bahuasin [1914] 42 Cal. 582.

The learned Subordinate Judge has held that the previous application against the widow would save limitation, and he has disallowed the objection of the judgment-debtor. In this appeal by the judgment-debtor it is contended that the first application for execution against the widow was not an application in accordance with law and, therefore, could not save the present execution from the bar of limitation. It is contended that the first application was made against a person who did not represent the estate of the deceased judgment-debtor, Bhaveshwar Singh, and, therefore, that was not an application in accordance with law.

It is true that the widow did not inherit the estate of Bhaveshwar Singh; which was a babuana property; but it has been found that the widow was in possession, and the brother and nephew of Bhaveshwar Singh, who were separate from him, were not in possession. Some property was sold and possession given to the decree-holder, auction-purchaser, without any objection. The learned Subordinate Judge was of opinion that the first execution was brought against a wrong person under a bona fide mistake and the application was one in accordance with law, within the meaning of Article 182 of the first schedule to the Indian Limitation Act. On behalf of the appellant reliance is placed upon the decision in Gyanendra Nath Basu v. Rani Nihalo Bibi [1910] 32 All. 404. That decision, no doubt, supports the appellant''s contention; but the Calcutta High Court, as well as the Madras High Court, have taken a different view.

In Balkishen Das v. Bedmati Koer [1892] 20 Cal. 388, it was held that an application made against a wrong person under a bona fide belief that that person was the legal representative of the deceased Judgment-debtor was a good application, and even if it could not properly be regarded as an application u/s 234 of the old Code of Civil Procedure, by reason of mistake, it would still be an application to take a step in aid of execution. In that case there was a reasonable doubt as to who the legal representatives of the deceased judgment-debtor were, and the Court held that the previous application was filed under bona fide mistake and saved the subsequent application from limitation.

This view was accepted in Bipin Behari Mitter v. Bibi Zohra [1908] 35 Cal. 1047. In Monorath Das v. Ambika Kanta Bose [1909] 9 CLJ 443, Mookerjee, J. relied upon Balkishen''s case [1892] 20 Cal. 388 and the case of Bipin Behari Mitter v. Bibi Zohra [1908] 35 Cal. 1047, quoted above, and approved of the principles laid down in these decisions. I am inclined to agree with the view taken by the learned Subordinate Judge and to hold that the first application against the widow was a good application in accordance with law and, in any event, it was dearly an application to take some step in aid of execution of the decree and gave a fresh start to the period of limitation.

The appeal must be dismissed with costs.

Ross, J.

I agree.