MATHURA PROSAD Vs. ANURAGO KOER

JUDGEMENT

(1.) This appeal arises on an order of the learned District Judge of 3hupra, Saran, setting aside an order of the Subordinate Judge, first Court, on an application under Section 244, Civil Procedure Code.

(2.) In the Court of first instance the judgment-debtor objected to the execution of a decree on the ground that the application for execution was out of time. The Subordinate Judge disallowed the objection, the learned District Judge has allowed it.

(3.) The facts are briefly as follows: The decree was obtained on the 6 August 1902, and the first application for execution was struck off on the 6 June 1905. A second application was made on the 5 December 1907, and was admittedly within time, although it appears not to have been precisely ascertained when the application of 1905 was filed. The application was in proper form, under Section 235, Civil Procedure Code, and the mode in which the assistance of the Court was required was by attachment of a certain house and also by attachment of some shares in a revenue-paying mouza. The executing Court, without entertaining the application, returned it for supplying the necessary extract from the Collector's Registers, under Section 238, Civil Procedure Code, and for a correct valuation, within 10 days. The application was re-filed on the 15 June 1908, i.e., nine days beyond the period of limitation, if counted from June 1905, with an application explaining the delay. The Subordinate Judge admitted the application and registered it. On notice being issued under Sec. 248 to the judgment-debtor, she came in, and objected that the application was barred, as the application was not re-filed within the time allowed, and was re-filed more than three years after the last application.