Salimulla Bahadur And Others Decree-Holders v. Sainaddi Sarkar And Others Judgment-Debtors

1. We have before us an appeal against an order of an appellate-Court modifying a decision of the lower Court, dated 21st November 1910, by which execution proceedings in that Court were dismissed. The substantial question before us is whether the proceedings in execution were barred by limitation. Before the period of limitation had arrived the decree-holder applied to the Court to be allowed to file a list of immovable properties which he had not filed till then. The application was one under O. 21, R. 17 of the CPC, on which the Court could make an order under R. 17. It was open to the Court reject the application, or to allow the list to be filed then and there or within a time to befixed by the Court. The Court as a matter of fact, did none of these things. It simply made the order: “Permitted” which we must take as being an order to the effect that the list might be filed at any time. Subsequently however the list was filed; but by that time the period of limitation had already run. The only way in which the effect of limitation can be excluded in this case is under para. (2), R. 17 of the CPC, but in this case the application has not been amended according to the provisions of sub-R. (1), because no time was fixed by the Court within which the list was to be filed.

2. On looking into the facts of the case, it appears that this error was due to the fact that the application was made within a very short time of the expiration of the period of limitation, and it was not brought to the notice of the Court that there was any question of limitation; and had the list been filed before the period of limitation, the present objections, would not have arisen. We must however hold that the law was not complied with and as the necessary formalities were not carried out within the time prescribed by law, we must uphold the judgment of the appellate Court and dismiss this appeal with costs. The hearing fee is two gold mohurs.

V.B/R.K

3. Appeal dismissed.