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1904 DIGILAW 12 (CAL)

Bhagabuty Charan Chukraburty v. Ashutosh Chattopadhya

1904-01-13

body1904
JUDGMENT 1. The only question raised in this appeal is whether sec. 19 of the Limitation Act is applicable to proceedings in execution of a decree. The Appellant relies on two cases decided in this Court, Mungol Prosad Dichit v. Shama Kanto Lahiri Ckowdhury I. L. R. 4 Cal. 708 (1879) which was decided in the year 1879 following the earlier case of Kally Prosonna Hazra v. Heera Lal Mondal I. L. R. 2 Cal. 468 (1877) which was decided in 1877 and also on another case decided by a Full Bench of the Madras High Court Rama Rau v, Venkatesa Bhanduri I. L. R. 5 Mad. 171 (1882) which laid down that the provisions of sec. 19 of the Indian Limitation Act were not applicable to applications in execution of decrees. With regard to the first two cases, all we need say is that they were decided on sec. 20 of Act IX of 1871 which is a section quite differently worded from sec. 19 of the present Limitation Act and that they have no bearing on the point which is at present before us. With regard to the case decided by the Full Bench of the Madras High Court, all we need say is that it is contrary to a strong current of authorities and appears to have been decided more on the question of convenience than on any other ground. The authorities in favour of the proposition that sec. 19 of the Limitation Act does apply to proceedings in execution of a decree began with the case of Ramhit Rai v. Satgur Rai I. L. R. 3 All. 247 (1880) which was decided in the year 1880 by a Full Bench of the Allahabad High Court. That decision was followed in the case of Ram Coomar Kar v. Jakur Ali I. L. R. 8 Cal. 716 (1882) which was decided in the year 1882 by this High Court and that was followed in the case of Toree Mahomed v, Mahomed Mabood I. L. R. 9 Cal. 730 (1883) which was decided in the year 1883 and which followed and expressly approved of the two earlier cases, namely, the cases of Ramhit Rai and Ram Coomar Kar. Further, there is the authority of the case of Norendra Nath Pahari v. Bhupendra Narain Roy I. L. R. 23 Cal. 730 (1883) which was decided in the year 1883 and which followed and expressly approved of the two earlier cases, namely, the cases of Ramhit Rai and Ram Coomar Kar. Further, there is the authority of the case of Norendra Nath Pahari v. Bhupendra Narain Roy I. L. R. 23 Cal. 374 (1895) which was decided in this Court as recently as the year 1895. These oases are all irreconcilable with the decision of the Madras High Court and they all establish the proposition that sec. 19 of the Limitation Act is applicable to proceedings in execution of a decree. In our opinion the proposition contended for by the Appellant is concluded by these authorities. He has referred us to the case of Kader Buksh Sarkar v. Gour Kishore Roy Chowdry 6 C. W. N. 766 (1902) which was decided in the year 1902 and he contends that that decision on sec. 20 of the Limitation Act is only consistent with the interpretation which he desires to put on sec. 19 of the Limitation Act, namely, that secs. 19 and 20 are not applicable to proceedings in execution of decree. We do not think that that inference can be drawn from the case to which we have referred from 6 Weekly Notes. That was a decision on sec. 20 which is differently worded from sec. 19. In our opinion an application for execution of a decree is an application in respect of a property or right and we think that an acknowledgment of liability in respect of such property or right falls within sec. 19of the Limitation Act and extends the period of limitation under that section. We think that the law has been correctly laid down in the case of Norendra Nath Pakari v. Bhupendra Narain Roy I. L. R. 23 Cal. 374 (1895) following the earlier decisions of the years 1882 and 1883 to which we have referred. The appeal is accordingly dismissed with costs. We assess the hearing fee at three gold mohurs.