SALEKHAN VALAD JANGLIKHAN DESHMUKH Vs. VISHVANATH MAHADEO TILAK

JUDGEMENT

(1.) The facts of this case are explained in our interlocutory Judgment of the 14th of October last, in which we granted the respondent one month's time to produce, if he was able to do so, an assignment in writing. from his brother Damodar. The assignment in writing has now been produced, and the objection taken on the ground of its absence now admittedly fails.

(2.) It is, however, contended for the appellant that the application is barred by time. The application was made on the 27 July 1908, and prior to that there had been four applications of which the successive dates are : 22 March, 1901, 7th April 1902, 18 April 1905, and 3 June 1908. The appellant's case is that the application referred to in 1908 was not a step-in-aid of execution within the meaning of Art. 179 of the Limitation Act, inasmuch as that application was presented not by the decree-holder, but by the decree-holder's brother who was not then an assignee in writing as required by s. 232 of the Code of Civil Procedure of 1882.

(3.) The fact no doubt is so, but it appears to us that that fact ought not to be considered fatal to the present application. We think that the right view to take is that the technical defect which then existed in the application of the 3 of June 1908 was cured by the subsequent production of an assignment in writing. This opinion seems to us to accord with the principle upon which it has been held in the High Courts of Bombay, Calcutta and Allahabad, that an application by the representatives of the deceased decree-holder will keep the decree alive, although they may not have then obtained a certificate under the Succession Certificate Act, in consequence whereof the application is dismissed. See Hafizuddin Chowdhry v. Abdool Aziz, (1893 I.L.R. 20 Cal. 755) Balkishan Shiwa Bakas V/s. Wagarsing, (1894) I.L.R. 20 Bom. 76 and Kalian Singh V/s. Ram Charan, (1898) I.L.R. 18 All. 34. As to the general manner in which these provisions of the law should be read, we may refer to what was said by Mr. Justice West in Hari V/s. Narayan, (1887) I.L.B. 12 Bom. 437.