MAHIDHAR ROY Vs. RAJA KALYANI PRASAD SINGH

JUDGEMENT

(1.) This appeal by a judgment-debtor arises out of a proceeding in execution of a decree. The judgment-debtor objected that the. decree sought to be executed was barred by limitation, but the learned Subordinate Judge has taken the contrary view. This is the principal question for determination in this appeal. A few dates are necessary to appreciate the point raised.. On 25 March 1930 the decree- holder opposite party obtained in the Purulia Court a decree for about Rs. 28,000 against Kalipada Roy and Purnendu Narain Singh. The appellant is the son of Kalipada Roy who is now dead. In the years 1930, 1932 and 1933 infructuous attempts were made to execute this decree. On 9 July 1935, another execution case was started but it was dismissed on part satisfaction in May 1936. On 18 of June of the same year the decree-holder made an application to the Court at Purulia that the decree should be transferred to the Court at Asansol with a certificate for non-satisfaction. On that very date the Court passed this order: This is an application for transfer of the decree to the Court of the Subordinate Judge of Asansole on the ground thr\t the judgment-debtor has got no properties moveable or immovable within the local limits of the jurisdiction of this Court. Prepare certificate of non-satisfaction and send it to the Subordinate Judge of Asansole through the District Judge of Burdwan as prayed for and put up on 6 July 1936 for further orders.

(2.) In pursuance of this order the office prepared a certificate for non-satisfaction on 25 June. 1936 (Ex. 2). On the same date the Subordinate Judge of Purulia signed the order, Ex. 1, in which after reciting that the decree-holder has applied for a certificate to be sent to the Subordinate Judge at Asansol it stated: It is ordered that a copy of this order be sent to the Subordinate Judge, Asansole, through District Judge Burdwan, with a copy of the decree and of any order which may have been made for execution of the same and a certificate of non-satisfaction.

(3.) This order and a certificate of non-satisfaction were received by the Court at Asansole on 4 July 1936 (see Ex. 7, Col. l). The decree-holder did not make any application for execution before the Court at Asansol and therefore that Court returned the certificate to the Sub-ordinate Judge at Purulia on 4 March 1937 (see Ex. 7, last column). On 6 July 1939, the decree-holder made another application for execution of the decree to the Court at Purulia. In that application the execution was sought against the heirs of the deceased judgment-debtor, Kalipada Roy, by their arrest. The moveable properties which were sought to be attached were described in that application as being situated without the jurisdiction of the Purulia Court. On receiving this application the Subordinate Judge passed this order: Register. It appears that the decree under execution has been transferred to Sub-Judge's Court, Asansol for execution on 6-7-36 and no result thereof has yet been received. The execution is against the heirs of the deceased judgment-debtor but there is also a prayer for arrest. Further the moveables sought to be attached are not within the jurisdiction of this Court.