HARI BADANI DASI Vs. GOBINDA CHANDRA DAS

JUDGEMENT

(1.) ON the facts appearing on the record, it appears to us that the lower Courts were wrong in holding that the present application for execution was barred by limitation. The decree was passed on the 23 May 1898. Applications for execution were made several times and the final application was made on the 16 April 1904. That application was made by the executors of the original decree-holder, though probate had not then been obtained. Either for this defect or for some other defect which is not quite clear from the record, the application was rejected. But it was, in form, a proper application and at all events, it was a step taken in aid of execution. The mere fact that one of the applicants had not obtained probate would not justify a Court in rejecting the application. As an authority for this proposition, we may refer to the case of Hafizuddin Chowdhry V/s. Abdool Aziz 20 G. 755.

(2.) WE are of opinion that the present application which was presented on the 15 April 1907 was not barred by limitation. WE accordingly send the case to the Court of first instance for execution being proceeded with.