HIRA LAL Vs. BADRI DAS

JUDGEMENT

(1.) THE question in this case is whether the Judgment-creditors, who on the 14th of January 1867, obtained in the Court of the Judge at Agra a decree against the respondents, were on the 9th of April 1874, barred by limitation from executing it. It appears that on the 3rd of December 1868, the Judge sent the decree to the Subordinate Judge of the district to be executed by him, and that on the 3rd of April 1869, the Subordinate Judge struck the execution-case off the file. On 9th of April 1874, the case was re-instituted in the Court of the Judge by the petition which has given rise to the question now to be determined.

(2.) BETWEEN the 3rd April 1869, when the Subordinate Judge struck the case off his file, and the 9th April 1874, proceedings were from time to time taken by the decree-holders in the Court of the Subrodinate Judge to enforce the decree, but the question is whether those proceedings were sufficient to prevent the operation of the Limitation Act XIV of 1859, Section 20.

(3.) AFTERWARDS , on the 24th December 1873, upon a report of the muharrir that the record was not in the office, the Subordinate Judge made another order that the record should be sent for from the Judge's Court. Subsequently, on the 9th January 1874, in a proceeding from which it appears that the record had been received and perused, the Subordinate J udge "ordered that the certificate prescribed by Sections 285 and 286, Act VIII of 1859, and copy of the application for execution of decree, be sent to the Agent at the Indore Cantonment." On the 9th April 1874, the case was re-instituted in the Court of the Judge by petition, stating that the Subordinate Judge had not lost control of the case until 3rd June 1872, that the decree-holders had a certificate on which they had not acted, and they prayed the Court that, under Section 237, certain 4 per cent. promissory notes for Rs. 25,000 due to the judgment-debtors in the Indore Agency Cantonment Treasury might be attached. It appears that after some demur on the part of the Assistant Political Agent to execute the decree, he was ordered to execute it; and he did execute it by attaching a sum of Rs. 13,097 belonging to the judgment-debtors and that money was sent to the Judge at Agra by means of a bill. On the 13th May 1876, the Judge, having received the money from the Indore Agency, ordered that the Rs. 13,097-7-9 be given over to Mir Zaffar Husain, pleader for the decree-holder, agreeably to a power given to him, and a receipt be taken from him. Before the money was handed over, however, an application was made to the Judge, in which the defendants made the following objection amongst others: "(i) That the decree-holder's decree is beyond time." Thereupon the Judge on the 18th May 1876, made the following order: "The objections are such as may be entertained, and may possibly be determined in favour of the debtors. It appears, therefore, undesirable that the decree-holder should get the money till they have been disposed of. Let payment be stayed on the debtors giving security to pay interest at eight annas per mensem per cent., in the event of the money being ultimately awarded. If the cheque received from foreign territory have been already made over to the decree-holder, an injunction may be issued to the bank on which it is drawn, not to cash it till further orders." Then comes the decision of the 31st May 1876, by which the Judge held that the proceedings in the Court of the Subordinate Judge were ultra vires, and did not prevent the running of limitation. He held that the transfer of the case to the Subordinate Judge was not authorised by law, and that when the Subordinate Judge removed the case from his files he could not take it up again without a fresh transfer. He also considered that the decree-holders had not shown due diligence in the case and doubted whether any of the proceedings were bond fide. He, therefore, held that he was constrained to grant the prayer of the objectors, and to award them costs.