Amrita Lal Mukherjee vs Hiralal Mukherjee and Moti Lal Mukherjee

The only question in this appeal is, whether the decree-holder''s application for execution, dated 21st July 1916, was barred by limitation. It appears that the decree was passed on 30th May 1910 on a Solenama, the decree being for partition of joint family property. In 1913 there was an application for execution which was dismissed for default on 31st July 1913. The question is--from what date did the time run against the appellant? It is argued for him that it ran from 26th July 1913 because, first, on that day he cross-examined Hiralal Mukherjee with reference to an objection which was then being taken to execution, and, secondly, there was an order in his favour that he should pay talbana for formal possession, if he liked to get it, within three days. It is clear that neither of these things will take the case out of limitation or give him a fresh starting point. The cross-examination of an opponent cannot be said to be an application to the Court to take a step in-aid of execution. As to the second point, if there had been an issue of notice obviously that would have been a starting paint for a fresh period, but there was no such issue of notice. The decree holder was given three days to pay talbana if he chose to do so. He did not put that in and his application was then dismissed for default. We think that the application was clearly barred by time. The appeal is accordingly dismissed with costs, hearing fee--three gold mohurs--to each of the respondents who have appeared.