Limitation-Execution-Act IX of 1871, Sch. II, Art. 167.

Act IX of 1871, Sch. II, Art. 167, allows three years from the date of a previous application for execution, whether that previous application has been bond fide or merely colourable, provided it was made whilst the decree was in force. A Judge is not, therefore, competent to go into the question whether a previous application is colourable or not; but he is competent to decide whether or not any decree was alive at the time such previous application was made.

Eshan Chunder Bose vs. Prannath Roy, 22 W. R., 512; 14 B. L. R., 143; Rohinee Nundun Mitter vs. Bhugwan Chunder Roy, 22 W. R., 154, explained.

Bemul Dass vs. Ikbal Narain, 25 W. R., 249; and Bisseshur Mullick vs. Mahatab Chunder, 10 W. R., 9 F. B., cited.

SPECIAL APPEAL from an order passed by the District

Judge of Tipperah, reversing that of the Moonsiff of Brahmanbaria.

This was an application for execution of a decree. An appli cation for execution of the same decree was made on the 18th of June 1869. On the 10th of August 1869, the decree-holder deposited fees for the issue of the sale proclamation, and on the 24th of August he deposited fees for the sale. These deposits were made by the decree-holder with challans, unaccompanied by any written petition. The next application for execution was made on the 5th of August 1872, and the present one on the 19th of June 1875. When this last application was made, the judgment-debtor objected to its being granted, as the decree was barred at the date of the application made in 1872. The Moousiff overruled the objection, on the ground that the deposits on the 10th and 24th of August 1869 were applications to keep the decree in force within the meaning of Act IX of 1871, Sch. II, Art. 167, which was not limited to applications under section 212, Act VIII

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of 1859. The Moonsiff's decree was reversed in the lower Appellate Court, the Judge citing Jibhai Mahipati vs. Parbhu Bapu, I. L. R., 1 Bom., 59. The decree-holder then brought this PROSHAD RAI special appeal.

Baboo Trilokhya Nath Mitra, for Appellant, contended that a previous application for execution having been granted on the 6th of August 1872, no question as to the goodness or badness of that application could be enquired into in the Court below-Eshan Chunder Bose vs. Prannath Nag, 22 W. R., 512; 14 B. L. R., 143; Rohinee Nundun Mitter vs. Bhugwan Chundur Roy, 22 W. R., 154. He also contended that the proceedings before the 1st of July 1871-the date on which Act IX of 1871 came into force-could not be governed by the new law, as that would be giving to it a retrospective operation; and that they were, therefore, governed by Act XIV of 1859, under which the decree was not barred.

Moonshee Serajul Islam, for Respondent, referred to Bemul Doss vs. Ikbal Narain, 25 W. R., 249; and Rughoo Nath Doss vs. Ranee Shiromonee, 24 W. R., 20.

Baboo T. N. Mitra, in reply, stated that the first point urged was neither raised nor decided in the cases referred to.

The judgment of the High Court (1) was delivered by MORRIS, J. :

The decree-holder is the special appellant in this case. The question is, whether the application, which was made on the 19th of June 1875, is within time or not. The Judge of Tipperah has held that it is not. The grounds of special appeal taken are: (1) that the lower Appellate Court is wrong in holding that the last application for execution was barred by limitation; and (2) that the lower Appellate Court is wrong in holding that the proceedings in execution taken before the passing of Act IX of 1871 are to be governed by the said law. The contention of the pleader who appears for the decree-holder, on the first ground raised in special appeal, is that a notice having been issued under the provisions of section 216, Act VIII of 1859, on the 7th of August 1872, and the present application being dated the 19th June 1875, he

(1) KEMP and MORRIS, JJ.

v.

SHEIKH KURPAN ALI.

Statement

MORRIS, J.

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is within time; and that the Judge was not competent to look behind the date of the notice, and to take cognizance of any proceeding which had been taken before the date of that notice. SHEIKH Now the Judge finds that on the 5th of August 1872, when the application was made by the decree-holder, upon which applicaJudgment. tion the notice was issued under the provisions of section 216 of MORRIS, J. the Code of Civil Procedure, the decree was no longer alive; that it was barred, inasmuch as the application made prior to the 5th of August 1872, is dated the 18th June 1869, or more than three years before the later application. The pleader contends that the Judge, as we have already stated, is not competent to go behind the notice; and that he ought to have held that the starting point was the 7th of August 1872, irrespective of the fact that the decree had already become barred by not being enforced between the 18th of June 1869, and the 5th of August 1872. In support of this contention he quotes two rulings, one in 22 W. R. 154-Rohinee Mitter vs. Bhugwan Roy; and the other a Full Bench ruling in the same volume, page 512-Eshan Chunder Bose vs. Prannath Nag (also 14 B. L. R., 143). The first ruling, by Mr. Justice MARKBY, sitting with Mr. Justice ROMESH CHUNDER MITTER, decided that under the new Law of Limitation, Act IX of 1871, Sch. II, Art. 167, prescribing three years as the time within which applications should be made for execution of decrees, it was intended that there should be two specific dates from which the three years were to be counted without reference to any inquiry whether the proceedings were taken bonâ fide for the purpose of enforcing the decree, or were merely colourable for the purpose of keeping the decree alive.

Now in the present case the Judge could not have gone into the question whether the application and notice under section 216, Act VIII of 1859, was a bona fide application or a colourable application, but he was competent to decide whether any decree was alive or not at the time that application was made. He has done 80, and has found that at the time that application was made the decree was not alive. With reference to the Full Bench decision, reported in 22 W. R., 512; 14 B. L. R., 143-Eshan Chunder Bose vs. Prannath Nag, the late Chief Justice, Sir RICHARD COUCH, who delivered the judgment of the Full Bench, observes that Act IX of

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v.

SHEIKH KURPAN ALI.

Judgment.

1871 clearly gives to a person who has a decree the power, so far as regards the Law of Limitation, of applying for execution of it within three years from its date, or within three years from the date of the application to the Court to enforce it or keep it in force; and that there is no restriction as to the second or third, or any subsequent application. Now this ruling assumes that the party who applies has a decree which is alive; and MORRIS, J. decides that he can make an application to enforce that decree, either within three years from its date, or from the date of any application made to enforce or keep in force that decree, or from the date of any notice which he may have issued under the provisions of section 216, Act VIII of 1859. We think that the view of the Judge in the present case is a correct view, and we, therefore, overrule the first ground of special appeal.

The second ground taken by the pleader for the appellant, is fully disposed of by the decision to be found in 25 W. R., 249Bemul Doss vs. Ikbal Narain. The principle of this decision is the same as that which has been affirmed by the Full Bench decision in 10 W. R., 9 (F. B.)-Bisseshur Mullick vs. Mahatab Chunder, which has not been in any way interfered with by subsequent rulings of the Full Bench. The appeal is dismissed with

costs.

Attachment-Right to receive Malikana-Act VIII of 1859, sections

235, 237, 240.

An attachment of a right to receive malikana from the Collector, if made under Act VIII of 1859, section 237, is not good, and will not invalidate a mortgage of the right executed while such attachment was pending.

Under that section attachment can be made only of a specific amount which may be set forth in the request as then payable or likely to become payable to the debtor.

SPECIAL APPEAL from an order passed by the Judge of

Midnapore, modifying that of the Sudder Moonsiff of that dis

trict.

This was a suit for the recovery of money due on a mortgage bond which was executed on the 24th of September 1874. The property hypothecated was an eight annas share of malikana payable annually by the Collector to the two mortgagors.

On the 13th of September 1874, in execution of a decree obtained in the Court of the Subordinate Judge, a notice of attachment of the four annas share belonging to one of the mortgagors above mentioned, was given to the Collector. Under this attachment the four annas share of malikana was sold and purchased by the decree-holder, one of the defendants in this suit.

The mortgagee then brought this suit to enforce his mortgage bond against the two mortgagors and the purchaser of the four annas share at the execution sale. The main question was whether the attachment, which had been made under section 237, Act VIII of 1859, was valid and in force on the 24th of September 1874, the date of the mortgage. The Court of First Instance held that it was, but this decision was reversed on appeal. Defendant (the purchaser) then brought this special appeal.