MUNGUL PERSHAD DICHIT Vs. GRIJA KANT LAHIRI CHOWDHRY

JUDGEMENT

(1.) ON the 22nd of September, 1877, Ishana Debt, the mother and guardian of the Appellants, presented a petition to the Subordinate Judge of Mymensing, in which she stated that her husband instituted a suit, No. 26 of 1851, against Shama Kant Lahari Chowdry, deceased, and obtained a decree against him on the 8th of July in that year; that, after application to execute the decree, her husband died, and that she, as guardian of the minors, being substituted in the place of her husband, revived the decree against the Defendant, Shama Kant Lahiri, and after his death against his son, who was the owner and possessor of the property left by him, and that the property of the judgment debtor was attached; that after the date of the sale had been fixed the sale was stayed on the application of the judgment debtor with the attachment continuing, and the execution case struck off on Monday, the 9th of February, 1875. She, therefore, prayed that the execution case might be restored, and that notice, being first served on Grija Kant Lahiri Chowdry, the son and heir of the said Shama Kant, the amount due under the decree might be realized, together with interest for the time of pendency and the costs of execution by sale of the property under attachment.

(2.) THE facts stated in the petition were correct, and were reported to be so by the Amlah to whom the case was referred for report. The judgment debtor, having been served with notice, appeared, and contended, amongst other things, that the application was barred by limitation, that the decree was dated the 8th of July, 1851, and that no proceedings had been bona fide taken from that time to keep the decree alive within the period laid down by Act XIV. of 1859 and IX. of 1871, and he alleged that the decree holder, actuated by mala fides, not having realized the money for such a long time, simply with the desire of increasing the interest, was not entitled, according to law and justice, to enforce it.

(3.) TAKING those as the correct dates, he held that the application of the 22nd of September, 1877, was barred by limitation, not being within three years from the date of the petition of the 5th of September, 1874, or from the date of the issuing of the notice on the 10th of September, 1874, under Section 216 of the Code of Civil Procedure (Act VIII. of 1859). In arriving at that conclusion, he treated the case as falling within the Indian Limitation Act, 1871 (Act IX. of that year), and he held, amongst other things, that, under clause 5 in the 3rd column of Article 167 of the second schedule, the date of the issuing, and not the date of the service of the notice, was the date referred to; and that under Clause 4 of the 3rd column of the same article, the date of the 6th petition, and not the dates of the subsequent order or proceedings under it, was the date from which the period of limitation began to run. Both of those dates, it will be observed, were more than three years before the 22nd of September, 1877, the date of the petition under consideration.