Calcutta High Court
Umesh Chandra Roy vs Akrur Chandra Sikdar on 4 March, 1918
Equivalent citations: 50IND. CAS.15
JUDGMENT
1. This appeal arises out of execution proceedings.
2. It appears that on the 23rd December 1908 a decree for a sum of Rs. 6,473 was made ex parte against three brothers, Dadhiram, Umesh and Ganesh.
3. On the 2nd July 1912 defendant No. 3, Ganesh, applied for an order to set aside the ex parte decree. On the 8th of February 1913 the Court made an order in these terms: "Application for re-hearing being granted, the ex parte decree is set aside against the applicant Ganesh Chandra Roy."
4. Of the re hearing, no notice was given to defendant judgment-debtors Nos. 1 and 2, but on the 26th September 1913 after taking the evidence adduced by the plaintiff and defendant No. 3, the Subordinate Judge delivered judgment and made an order as follows: "The suit is dismissed against defendant No. 3 and is decreed ex parte against defendants Nos. 1 and 2 with costs."
5. Thereafter a decree in the said terms was drawn up.
6. The present application was made on the 1st July 1916 and is one for execution of the decree of the 26th September 1913 against judgment-debtors Nos. 1 and 2.
7. A prior application for execution against all three defendants had been made in the year 1911, the proceedings taken thereon terminating on the 14th June 1912. It follows that notwithstanding that application, the present application, if it is to be regarded as one for the execution of the decree of the 23rd December 1908, is barred by the 3 years' rule of limitation, unless some other fresh starting point can be obtained.
8. The question for determination then is, whether the order and decree of the 26th September 1913 are to be regarded as binding on defendants Nos. 1 and 2 Until set aside by proceedings properly taken for that purpose, or whether they are to be regarded as mere surplusage, or as without jurisdiction and void. In support of the position taken by the decree-holder respondent, we have been referred to the case of Malharjun v Narhari 25 B. 337 (P.C.) : 27 I.A. 216 :5 C.W.N. 10 : 2 Bom. L.R. 927 : 10 M.L.J. 368 : 7 Sar. P.C.J. 739. It has also been contended that the decree or order of the 26th September 1913 in effect amends or reviews the decree of the 23rd December 1908 and that limitation should run from the date of the amendment under Article 182, clauses 3 and 4, of the Schedule to the Limitation Act. In support of this view have been cited the cases in Kali Prosunna Basu Roy v. Lal Mohan Guha Roy 25 C. 258 : 2 C.W.N. 219 : 13 Ind. Dec. (N.S.) 174 and Amar Chandra Kundu v. Asad Ali Khan 32 C. 908 and also the cases of Gopal Chunder Manna v. Gosain Das Palay 25 C. 594 (F.B.) : 2 C.W.N. 556 : 13 Ind. Dec. (N.S.) 392, Abdul Khadir v. Ajiyur Ahammad 12 Ind. Cas. 679 : 35 M. 670 : 10 M.L.T. 413 : (1911) 2 M.W.N. 434 : 22 M.L.J. 35, Vydianatha Iyer v. Subramania Pattar 10 Ind. Cas. 552 : 36 M. 104 : 21 M.L.J. 546 : 10 M.L.T. 69 : (1911) 2 M.W.N. 93 and Ashfaq Husain v. Gauri Sahai 9 Ind. Cas. 975 : 33 A. 261 : 15 C.W.N. 370 : 8 A.L.J. 332 : 13 C.L.J. 351 : 9 M.L.T. 380 : 13 Bom. L.R. 367 : 4 Bur. L.T. 121 : 21 M.L.J. 1140 : 38 I.A. 37 : (1911) M.W.N. 177 (P.C). The case last mentioned is perhaps the one most in point, but while in that case the later decree granted against One of the defendants was necessary to the execution of the decree-holder's mortgage decree here, it is to be remembered, as against the defendants Nos. 1 and 2, the decree of the 23rd December 1908 remained untouched throughout and has been from that date enforceable against them. To the proceedings taken on defendant No. 3's application on the 2nd July 1912 and to the subsequent proceedings taken on and after the order of the 8th February they were not made parties. On the principles laid down, therefore, in the cases of Khiarajmal v. Daim 32 C. 296 : 32 I.A. 23 : 9 C.W.N. 201 (P.C.) : 2 A.L.J. 71 : 7 Bom. L.R. 1 : 1 C.L.J. 584, 8 Sar. P.C.J. 734, Suresh Chunder Wum Chowdhry v. Jagut Chunder Deb 14 C. 204 (F.B.) : 7 Ind Dec. (N.S.) 135 and Hanuman Prasad v. Muhammad Ishaq 28 A. 137 : A.W.N. (1905), 229 : 2 A.L.J. 615, it would seem that the order of the 26th September 1913, in so far as it purports to be one made against defendants Nos. 1 and 2, is a mere nullity. Further, the decree of the 23rd December 1908 against defendants Nos. 1 and 2 having continued in force throughout, the order of the 23rd September, 1913, in so far as defendants Nos. 1 and 2 are concerned, may be regarded as merely an intimation that the decree of the date first mentioned, in so far as it was one against defendants Nos. 1 and 2, was not affected by the order of the later date. The formal decree then drawn up was thus a mere surplusage and a ministerial irregularity.
9. On the whole we are of opinion that the contentions of the appellant should prevail. We, therefore, decree this appeal but, in the circumstances, without costs.