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CALCUTTA HIGH COURT
O Kinealy, J., Banerjee, J.
Hafizuddin Chowdhry & Ors. - Appellant
Versus
Abdool Aziz - Respondent
Decided On : 06-04-1893
Limitation - Execution of Decree - Act Section List: Limitation Act, 1908 - Schedule II, Article 179; Civil Procedure Code, 1908 - Section 158 - The court held that the previous application for execution of the decree, which was dismissed for lack of a succession certificate, did not bar the present application for execution, as the relief sought in the two applications was different. The court also held that the interpretation of the term 'application' in the CPC and Limitation Act was not dependent on the Succession Certificate Act, which was passed later.
Fact of the Case:
The decree-holder, a Mahomedan lady, died, leaving ten persons as her heirs and residuaries. After her death, these ten persons applied for execution of the decree, but the application was dismissed as they were unable to file a succession certificate as required by the Succession Certificate Act. The present application for execution is of a different nature.
Finding of the Court:
The court set aside the decisions of the lower courts and allowed the appeal with costs. The court held that the previous application for execution, which was dismissed, did not bar the present application, as the relief sought in the two applications was different.
Issues: Whether the previous application for execution, which was dismissed, bars the present application for execution.
Ratio Decidendi: The interpretation of the term 'application' in the CPC and Limitation Act is not dependent on the Succession Certificate Act, which was passed later. The previous application for execution, which was dismissed, did not bar the present application, as the relief sought in the two applications was different.
Final Decision: The court set aside the decisions of the lower courts and allowed the appeal with costs.
JUDGMENT
O'Kinealy and Banerjee, JJ. - In this case the decree-holder, a Mahomedan lady, died, leaving as heirs and residuaries ten persons. After her death these ten persons applied for execution of the decree, and the application was registered, but as they were not in a position to file a certificate such as is required by Section 4, Clause (b) of the Succession Certificate Act, the application was dismissed. That was an application to arrest the debtor. The present application is of a different nature, and it is admitted on all hands that if the former application was such as is contemplated by Article 179 of the second schedule of the Limitation Act, the decree-holders are not barred.
2. The point I think is very easy of decision. Both the CPC and the Limitation Act were passed long before the Succession Certificate Act. Therefore, whatever interpretation may be put on the word "application" as used in the CPC and the Limitation Act, it could in no way depend upon the Succession Certificate Act.
3. Then it is said that the persons who made the application were not the proper persons to make it. The answer to that is that, when a decree is transferred, as in the present case, by operation of law, the transferee may apply for execution. Here the application was in proper form and made by the heirs of the decree-holder.
4. It has been further argued that as the previous application to which I have referred was dismissed by the Munsif u/s 158 of the Civil Procedure Code, and that decision was not appealed from, the decree-holder can make no further application. Admitting for the sake of argument, and only for the sake of argument, that the order rejecting the previous application was made u/s 158, still it is quite clear that the relief asked for in that application was different from what is asked for here, and consequently the decree-holders are not debarred from making the present application.
5. The result is that the decisions of the lower Courts must be set aside and the appeal allowed with costs.
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