KALI PRASAD SAHU Vs. MUSAMMAT BIBI AZIZ FATMA

JUDGEMENT

(1.) THIS is an application against an order dismissing the decree-holders application for execution on the ground that it was time-barred. The decree sought to be executed was a decree of a Small Cause Court. The judgment in the suit was passed on May 22, 1933. The decree was drawn upon May 24, 1933. The application for execution was made on May 25, 1936, 24 being a Sunday. It has been dismissed on the ground that the application should have been made within three years of May 22, 1933.

(2.) IT has been contended by the learned Advocate for the petitioner that the executing Court could not go behind the decree and as the only date which the decree bears is the date on which it was signed, namely May 24, 1933, limitation must be computed from that date. Alternatively it was argued that in the case of a Small Cause Court's decree in view of the Form prescribed in the General Rules and Circular Orders of this Court, Appellate Civil Vol. 2, p. 122, either the date of the decree is the date on which it was drawn up and not the date of the judgment or that if the decree should bear the date of the judgment in accordance with the provisions of Order XX, Rule 7, then the decree-holder was misled by the copy of the decree which was furnished to him, and in that case he should not be prejudiced by the Court's mistake. The case is, in many respects, similar to the one decided in the Calcutta High Court by Jack, J. in Nalini Kanta Roy v. Kamaraddi A.I.R. 1933 Cal. 239 : 141 Ind. Cas. 114 : 56 C.L.J. 185 : Ind. Rul. (1933) Cal. 82. There a decree which should have borne the date February 11, 1929, was actually dated February 16, 1929. The decree-holder had obtained a copy of only that portion of the summons-book which contained the formal decree and was thereby led to believe that the suit had been decreed on February 16, 1929. His application for execution was made on February 15, 1932, and was, therefore, out of time from the date of the actual decision which was February 11, 1929. Jack, J. held, following other decisions of the Calcutta High Court, that in the circumstances of the case, the decree ought to be regarded as having been passed on February 26, 1929, on the principle actus curice, neminem gravabit. Here if the date of the decree was May 24, 1933, the application was within time. If the date of the decree should have been May 22, 1933, then it is impossible to resist the conclusion that the decree-holder was misled by the copy supplied to him. I would, therefore, set aside the order of the Court below and direct the execution to proceed. There will be no order for costs in this Court.