CORPORATION OF CALCUTTA Vs. MONJOOR AHMED

JUDGEMENT

(1.) The Calcutta Corporation on 1 February 1934 got a preliminary decree in respect of the charge they had on a certain property of the respondent. The final decree in that matter was passed on 3 March 1934. Thereafter there were certain petitions for adjournment in the proceedings for rehearing under Order 9, Rule 13, Civil P.C. Those prayers were granted from time to time and, eventually, there was an application by the plaintiffs for the passing of a final decree under Order 34, Rules 4 and 5, on 10 September 1936. That application was rejected on 10 October 1936. The application for execution was filed on 4 September 1937. Both the Courts below have held that it was time-barred, being made three years after the date of the final decree. It transpires that the property in respect of which the-charge for rates was given is wakf property and that from time to time, after the finals decree had been passed on 3 March 1934 there were attempts to get the matter adjusted. Those attempts came to nothing.

(2.) In my view the learned Judge has come to a correct conclusion in dismissing the application for execution. The final decree was passed on 3 March 1934. Through some blunder in the office of the Corporation another application for a final decree was made on 10 September 1936 and an order was made on it. It is said that that was a step-in-aid of execution. In my view it was not. A step-in-aid of execution means an aid in execution of the decree. What the appellants did here was to forget the decree completely and asked for another decree to be made. They never thought about the decree when they took those proceedings of 10 September 1936. Whatever step they took was not in aid of that decree it was, something else quite independent of it. As regards the various applications for adjournment which were said to be acknowledgments of the debt, one has to remember in the first instance that this debt, although a decree had been passed for it, was being disputed by the respondent as not being payable at all. The prayer for adjournment to compromise it by no means admits the debt itself when proceedings to set it aside had been taken. It seems to me that; to bring a case within Section 19, Limitation Act, there must be a clear acknowledgment of liability. Adjournments are often obtained for the purpose of delay and often for the purpose of convenience. I am unable; to see that the requests by the defendant j here for adjournment on various dates constitute any acknowledgment of liability within Section 19, Limitation Act. The truth of the matter is that the plaintiffs have slept on their rights and the statute of limitation has deprived them of those rights. For these reasons I am of the opinion that this appeal must be dismissed. No order is made as to costs. Nasim All, J.M

(3.) I agree with my lord, the Chief Justice, that this appeal should? be dismissed. In the present application for execution the appellants stated that the period of limitation under Art. 182, Limitation Act, is to run from 1 December 1934, when the application for setting aside the ex parte decree under Order 9, Rule 13 of the Code was dismissed. In order to save the present execution from the bar of limitation the appellants relied on Art. 182(3), Limitation Act, before the trial Judge. The trial Judge held that the dismissal of an application for rehearing under Order 9, Rule 13 does not come under Art. 182 (3), Limitation Act.