SARIATOOLLA MOLLA Vs. RAJ KUMAR ROY
RAJ KUMAR ROY
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Maclean, C J -
(1.) The question we have to decide is a very short one, whether the application by the decree-holder of the 20 of July 1895 to be put into possession of the property which he had purchased under the execution proceedings is an application made in accordance with law to the proper Court to take some steps in aid of execution within the meaning of Sub-section 4 of Art. 179 of the second schedule to the Limitation Act. If the question be answered in the affirmative the present application, of the 6 of August 1898, is admittedly not out of time, but, if it be answered in the negative, the present application is time barred.
(2.) There is no authority, so far as we know, or so far as our attention has been directed, in the High Court of this province bearing directly upon the question. We have, it is true, been referred to various decisions, which lay down what does, and what does not in certain cases, and under the particular circumstances of those cases, constitute such an application. For my own part, however, inasmuch as each of those decisions depends upon the particular circumstances of the case, and the particular nature of the application which was made, I do not think that they afford a very useful guide to the present case.
(3.) There is a direct decision of the Allahabad High Court in the case of Moti Lal V/s. Makund Singh (1897) I.L.R., 19 All., 477, that an application such as the present is within Clause 4 of Art. 179 of the second schedule of the Limitation Act, as an application to take some steps in aid of execution. That decision, it is true, is not binding upon this Court, but it is a decision which is entitled to every attention and to every respect at our hands, and it is one in which I agree with the conclusion arrived at. It is somewhat difficult to say that such an application, as we are considering, does not fall within the language of the statute read literally. It has not been disputed that the application was made to the proper Court and in the execution proceedings, and that, in those proceedings, the Court had power to make an order for possession.;
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