Umesh Chandra Roy Judgment-Debtor v. Akrur Chandra Sikdar Decree-Holder .

1. This appeal arises out of execution proceedings. It appears that on 23rd December 1908 a decree for a sum of Rs. 6,473 was made ex parte against three brothers, Dadhiram, Umesh and Ganesh. On 2nd July 1912 defendant 3, Ganesh, applied for an order to set aside the ex parte decree. On 8th February 1913 the Court made an order in these terms:

“Application for rehearing being granted, the ex parte decree is set aside against the applicant Ganesh Chandra Roy.”

2. On the rehearing, no notice was given to defendant judgment-debtors 1 and 2, but on 20th September 1913 after taking the evidence adduced by the plaintiff and defendant 3, the Subordinate Judge delivered judgment and made an order as follows:

“The suit is dismissed against defendant 3 and is decreed ex parte against defendants 1 and 2 with costs.”

3. Thereafter a decree in the said terms was drawn up. The present application was made on 1st July 1916 and is one for execution of the decree of 26th September 1913 against judgment-debtors 1 and 2. A prior application for execution against all three defendants had been made in the year 1911, the proceedings taken thereon terminating on 14th June 1912. It follows that notwithstanding that application, the present application, if it is to be regarded as one for the execution of the decree of the 23rd December 1908, is barred by the three years' rule of limitation, unless some other fresh starting point can be obtained.

4. The question for determination then is whether the order and decree of 26th September 1913 are to be regarded as binding on defendants 1 and 2 until set aside by proceedings properly taken for that purpose, or whether they are to be regarded as mere surplusage, or as without jurisdiction and void.

5. In support of the position taken by the decree-holder respondent, we have been referred to the case of Malkarjun v. Narhari (1). It has also been contended that the decree or order of 26th September 1913 in effect amends or reviews the decree of 23rd December 1908 and that limitation should run from the date of the amendment under Article 182, Cls. 3 and 4, of the Schedule to the Lim. Act. In support of this view have been cited the cases in Kali Prosunna Basu Roy v. Lal Mohan Guha Roy (2) and Amar Chandra Kundu v. Asad Ali Khan (3) and also the cases of Gopal Chunder Manna v. Gosain Das Palay (4), Abdul Khadir v. Ajiyur Ahammad (5), Vydianatha Iyer v. Subramania Pattar (6) and Ashfaq Husain v. Gauri Sahai (7). The case last mentioned is perhaps the one most in point, but while in that case the later decree granted against one of the defendants was necessary to the execution of the decree-holder's mortgage decree here, it is to be remembered, as against defendants 1 and 2, the decree of 23rd December 1912 remained untouched throughout and has been from that date enforceable against them. To the proceedings taken on defendant 3's application on 2nd July 1912 and to the subsequent proceedings taken on and after the order of 8th February they were not made parties. On the principles laid down therefore inl the cases of Khiarajmal v. Daim (8), Suresh Chander Wum Chowdhry v. Jagut Chunder Deb (9) and Hanuman Prasad v. Muhammad Ishaq (10), it would seem that the order of 26th September 1913, in so far as it purports to be one made against defendants 1 and 2, is a mere nullity. Further, the decree of 23rd December 1908 against defendants 1 and 2 having continued in forcer throughout, the order of 23rd September 1913, in so far as defendants 1 and 2 are concerned, may be regarded as merely an intimation that the decree of the date first mentioned, in so far as it was one against defendants 1 and 2, was not affected by the order of the later date. The formal decree then drawn up was thus a mere surplusage and a ministerial irregularity.

6. On the whole we are of opinion that the contentions of the appellant should prevail. We therefore decree this appeal but, in the circumstances, without costs.

V.B/R.K

7. Appeal allowed.