PRAN KRISHNA DAS Vs. PROTAP CHANDRA DALAI

JUDGEMENT

(1.) A preliminary objection which has been taken is to the effect that one of the respondents named Sarada Prosad Dalai is dead and no steps have been taken to have his legal representative, his minor son, brought on the record. This, however, under the circumstances, is no bar to the appeal; and the only effect of it is this, that the appeal will operate as against the respondents other than the respondent Saroda Prosad Dalai and his representatives.

(2.) Then it is objected that the present application for execution should, apart from the question of limitation, be dismissed on the ground that it is not in accordance with the form s required by the Civil Procedure Code, in that it does not set out the mode of assistance which is sought from the Court; and it is said that the Court, having by an oversight admitted and registered the application which is not in form, cannot allow it to be amended into a valid application within the meaning of the provisions of the Code. This objection, I may point out, is not one which has been raised in any portion of the proceedings up to the present time. The objection which was raised in the lower Appellate Court was that the application was time- barred. It has been suggested that it is nevertheless open to the respondent to take this ground. But Order XLI, Rule 22, Civil Procedure Code, does not assist the respondent. That only permits the respondent to support the decree on any of the grounds decided against him or to take cross-objections. There is no question of cross-objection in this case, and the particular ground which is now taken was not decided against the respondent, nor was it in issue in the lower Court nor made the subject of adjudication at all. On these grounds this point fails.

(3.) The main question is that of limitation on which the lower Court has dismissed the application for execution. It turns upon the question as to whether the facts to which I am about to refer amount to a step-in-aid of execution of the decree. If the facts as recorded or said to have taken place on or after the 29th May 1911 amount to a step-in-aid of execution, then it is admitted that the application is not barred.