Calcutta High Court
Keramat Ali Patwari vs Nagendra (Nabendra In Vakalatnama) ... on 1 December, 1916
Equivalent citations: 40IND. CAS.78, AIR 1917 CALCUTTA 42
JUDGMENT
This is an appeal from an order of the learned District Judge of Noakhali, dated the 4th June, 1.915, reversing the order of the Munsif of Lakhipur. The proceedings arise out of an application for execution of a decree. The decree was obtained as long ago as the 17th June 1910. It was an ex parte decree obtained against the present appellant and another person named Sangsar-ud-Din, his co-defendant. The decree-holder, respondent before us then applied for execution against Sangsar-ud-Din and brought to sale in execution the moveables of Sangsar-ud-Din on the 15th April 1913 and the whole decree was satisfied from the proceeds of such sale. On the 16th June 1913, Sangsar-ud-Din sued to set aside the ex parte decree and that suit was decreed on the 26th June 1914. On the same date on which that suit was decreed, the decree-holder applied for execution against the appellant, the other judgment-debtor, and the application having been refused by the Mnnsif, on appeal to the District Judge, the order was reversed and execution was directed to issue. The only point is whether that application was made within time. The matter seems to be one of first impression. The view that the learned Judge of the lower Appellate Court appears to have taken was that the order directing refund by the decree-holder to Sangsar-ud-Din in effect re-opened the execution proceedings and that the present application must be treated as a continuation of the original application for execution which was brought within time. We think, on the whole, that the view taken by the learned Judge was correct and we ought to affirm his order. The present appeal, therefore, fails and must be dismissed with costs. We assess the hearing fee as two gold mohurs.