FAKIR CHAND MONDAL Vs. DAIBA CHARAN PARUI

JUDGEMENT

(1.) This is an appeal from an order of the learned District Judge of Je3sore, affirming an order of the learned Munsif of Bongaon. The material facts are simple, and can be stated concisely. The respondent brought a suit against the two appellants and a third person, and obtained an ex-parte decree against all the three defendants. No appeal has been preferred against that decree which was passed on the 2 March, 1922. On the 27 March 1922 the judgment- debtor other than the appellants applied under Order 9, Rule 13 for an order setting aside the ex-parte decree. The application was dismissed on the 9 September 1922,and this judgment-debtor preferred an appeal against the order refusing to set aside the ex-parte decree, but this appeal was dismissed on the 29 January 1923. On the 27 March 1925 the respondent, as decree-holder, applied for execution of the decree against all the three defendants. That application for execution, having been presented. more than three years after the decree was passed, was barred by limitation. The decree-holder, however, contended that he was freed from that bar in two ways : (1) because on the 25 February 1925 a sum of Rs. 5 had been paid by the judgment-debtors in part satisfaction of the decretal sum; (2) that inasmuch as the application of the judgment-debtor who applied to set aside the ex-parte decree was not finally dismissed Until the 29 January 1923, and the terminus a quo for limitation is the date of that final decree, his application for execution was within time.

(2.) As regards the first point : there was a finding of fact by the learned Munsif adverse to the judgment creditor; but on appeal, inasmuch as the learned District Judge was disposed to <JGN>Page</JGN> 2 of 3 decide the appeal in the judgment-creditor's favour upon the second ground, he did not consider or decide the first ground upon which the judgment-creditor relied. We are not disposed to send back the proceedings in order that the learned, District Judge may come to a finding upon the issue as to whether the Rs. 5 was paid as alleged because the evidence upon the record is sufficient and such that we feel that we are in a position to come to a conclusion ourselves upon that issue. The learned Munsif decided this issue against the judgment-creditor because he thought, having regard to the evidence that was adduced, that it could not reasonably be held that the judgment-creditor had established that the payment in question had been made. The parties were at arms length; there had been criminal proceedings between them; and if this alleged payment of Rs. 5 had been made nearly three years after the decree was passed, in the circumstances, one would have expected that the judgment- creditor would have made or obtained some record of this payment signed by the debtors or one or more of them in order that he might be in a position to prove this payment for the purpose of saving limitation. It was admitted at the hearing before the learned Munsif that the judgment-debtor could read and write, and yet no record of the payment of this sum of Rs. 5. alleged to have been made by the hostile defendants in favour of the judgment-creditor, is to be found. On the other hand the judgment-debtors - each of them-denied having made the payment and upon that evidence the learned Munsif came to the conclusion that it was not proved that the payment had been made. After considering the evidence in this matter there can be no doubt that the decision at which the learned Munsif arrived was correct.

(3.) As regards the second ground : it is now well-settled law that where an appeal has been preferred from a decree the period of limitation commences from the date of the degree on appeal : Abdul Alim V/s. Abdul Hafez , Gopal Chunder V/s. Gosain Das [1898] 25 Cal. 594. But what is meant by "decree on appeal?" In my opinion, (0 that question there can be but one answer. It means "decree on appeal from the decree to obtain execution of which the application is made." Now, can it reasonably be contended that the decree of the 29 January 1923 was passed on appeal from the decree to execute which the application was made? Clearly not. The appeal which the respondent prays in aid in support of his application for execution was not from the decree passed in the suit, but from an order refusing to set aside that decree under Order 9, Rule 13. In ray opinion, the matter is clear upon principle. But it is also concluded by authority : see Jivaji V/s. Ramchandra [1892] 16 Bom. 123, Baikunta Nath Mittra V/s. Aughore Nath Bose [1894] 21 Cal. 387, Rai Brijraj V/s. Nauratan Lal [1918] 3 Pat. L.J. 119. The learned vakil, on behalf of the respondents, relied upon the decision of this Court in Lutful Huq V/s. Sumbhudin Pattuk [1882] 8 Cal. 248. In that case there was an application by the judgment-debtor to revive a suit which had been decreed ex parte against him. The lower appellate Court determined the case upon the footing that the judgment-creditor had been prevented from executing his decree by reason of a stay order that had been passed by that Court, but the learned Judges who determined the suit in the High Court observed: The application to revive the suit really kept the decree open, and that decree did <JGN>Page</JGN> 3 of 3 not become final until the order of the appellate Court was passed on the 19 December, 1877.