GOBINDA NATH SAHA CHOUDHURY Vs. DURGA NARAIN SAHA

JUDGEMENT

(1.) This is an application by a decree-holder for recording the deaths of certain judgment- debtors and for leave to execute the decree against their legal representatives. Notice of this application has been served on all these legal representatives. One of them has appeared and opposed the application. His name is Samarendra Narain Saha. In his affidavit in opposition he takes up the position that the decree is over 12 years old and that its execution is barred by limitation inasmuch as there has been no revivor of the decree within the meaning of Article 183, Lim. Act, within 12 years of this application. At the hearing, counsel on behalf of Samarendra Narain Saha took up a different position. He admitted that there had been revivors of the decree within the meaning of Art. 183, Lim. Act, the last one being on 29th September 1926, when the decree-holder received a part payment of the decretal amount pursuant to an order dated 11 August 1926 passed by this Court, directing that the part payment should be made. He took up the position, however, that the present application was not an application to enforce a judgment and that, therefore, the limitation of 12 years provided by Art. 183, Lim. Act, would not govern this application. He contended that this application is one to which the residuary Art. 181, Lim. Act, which prescribes a period of three years limitation applies inasmuch as no period of limitation has been fixed for such an application by any other Art. of the Limitation Act or by Section 48, Civil P.C. He next points out that this application has been brought more than three years after the death of the persons whose heirs are sought to be substituted and argues that it is barred by limitation. It will be convenient for a proper understanding of the contentions of both parties to set out certain facts.

(2.) The decree was passed on 19 May 1913 against Durga Narain Saha, Ram Narain Saha, Hriday Narain Saha and Kristodhone Saha. The plaintiff was Gobinda Nath Saha Chowdhury. Gobinda Nath Saha Chowdhury died leaving certain heirs. These heirs by two deeds of assignment transferred their interest in the decree to the petitioner Jnanada Sundari Dassi. On 11 September 1919 the petitioner obtained an order from this Court in execution of this decree whereby the sum of Rs. 20,000 lying to the credit of suit No. 766 of 1913 was attached. In 1921 another attachment was levied with respect to a sum of money lying to the credit of an execution case in the Court of the Subordinate Judge, Fourth Court, of Mymensingh, and a sum of Rupees 2200 was received in part satisfaction of the decree. On 29 September 1926, Jnanada Sundari received a sum of Rs. 3783-11-11 out of the sum lying to the credit of suit No. 766 of 1913, pursuant to an order of this Court. It is admitted that the decree has been kept alive and that the period of limitation of twelve years prescribed for the execution of the decree will commence to run from 29 September 1926. On 3rd March 1938, that is to say within twelve years of the date when the decree was last revived, the petitioner applied to this Court for transmission of the decree to the Court of the District Judge of Dacca for execution. On 7 March 1938, the decree was transferred to Dacca. On 11 March 1938 the petitioner applied before the Subordinate Judge of Dacca for execution of the decree and the case was marked "Money Execution Case No. 27 of 1938." She also applied there for substitution of the names of the heirs of the deceased judgment-debtors Hriday Narain Saha, Ram Narain Saha and Kali Narain Saha. I might mention here that the original judgment-debtor Durga Narain Saha died leaving him surviving Kali Narain Saha, Surendra Narain Saha and Brojendra Narain Saha as his heirs, and that Kali Narain died on 10th November 1930 leaving him surviving Amarendra Narain Saha and Samarendra Narain Saha as his heirs and legal representatives. Hriday died in 1930 and Ram in 1926.

(3.) When this application was made before the Subordinate Judge of Dacca, the heirs-sought to be substituted objected on the ground that the executing Court had no-jurisdiction to make the substitution and contended that the application should have been made to this Court which had passed the decree. Upon this objection being raised, the learned Subordinate Judge on 10 September 1938 directed the petitioner to obtain orders from this Court and kept the execution case pending. Thereafter the petitioner on 7 November 1938 made the present application. The 7 November was the date on which this Court re-opened after the Puja vacation.