Shaikh Khoda Bukhsh vs Bahadur Ali

Reginald Roe, J.—This appeal arises from an order of the District Court of Bhagalpur setting aside an order of the Munsif of Madhipura directing that a decree be executed. The only point for consideration is, whether execution of the decree is barred by limitation. On this point the decision turns upon the question which was to some extent left open by this Court in the case of Ram Kumar v. Kesho Prasad Singh 36 Ind. Cas. 999; (1917) Pat. 52. That question is, in clause 6 Article 182 of the Limitation Act, do the words: "The date of the issue of the notice" mean the date of the Court''s order that notice issue or the date on which a ministerial officer of the Court actually issues the notice.

I have again considered the views quoted in the case of Ram Kumar v. Kesho Prasad Singh 36 Ind. Cas. 999; (1917) Pat. 52. It cannot be for a moment denied that there is much to he said in support of those held in Calcutta and Madras. Perhaps even more may be said in favour of those held in Bombay and Allahabad. But I am of opinion that in a case such as the one before us we are bound to accept the view of the Calcutta Court. It is on this view that Pleaders have been calculating limitation in making applications for execution. It would not be fair to turn round suddenly and say that the decision of the Calcutta Court was wrong. For this reason I would hold as I held in the case of Ram Kumar v. Kesho Prasad Singh 36 Ind. Cas. 999; (1917) Pat. 52 that the date of the issue of notice means the date on which the notice actually issued from the office of the Court, that is to say, the date on which it is signed by the sheristadar in the name of the Court. In this view the application was within time. The appeal must, therefore, be decreed, the order of the District Court set aside and that of the Munsif''s Court restored. The respondent will pay the appellant''s costs throughout.

Imam, J.

I agree.