Patna High Court
Pandey Satdeo Narain vs Radhey Kuar on 7 August, 1919
Equivalent citations: 53IND. CAS.9, AIR 1920 PATNA 354
JUDGMENT Miller, C.J.
1. This is an appeal from an order of the Subordinate Judge of Muzaffarpur, dated the 14th September 1918 passed in execution proceedings, wherein he a lowed the judgment-debtor's objection that the appellant's application for execution of his decree was barred by limitation
2. On the 4th July 1913 the appellant obtained a decree from the High Court a Calcutta declaring his title to possession of certain property together with mesne profits and costs, the latter item amounting to something between four and five thousand rupees. On the 13th December in the same year he instated exertion proceedings and attached certain property belonging to the judgment debtor in order to realise the amount of the costs awarded under the decree. The judgment-debtor, having applied for leave to appeal to His Majesty in council from the decree of the 4th July 1913, filed the petition in Jannary 1914 praying the High Court to stay execution of the decree pending the decision of their Lordships, and on the 27th January 1914 the High Court, on the application made
3. "We will allow the decree appealed from to be executed upon the opposite party giving such security as the lower Court may think fit for the due performance of any order which His Majesty in Council may make."
4. On the 17th February the lower Court fixed the security at Rs. 50,000 to be furnished by the decree-holder in one month from the date. The decree holder, whose financial resources were admittedly insufficient for the purpose, was unable to provide the security which was a condition precedent to his right to proceed in the execution and on the 28th March 1914, as no security had been furnished within the time allowed, the Subordinate Judge dismissed the execution proceeding, the order on that occasion being "No step taken. Dismissed in default." On the 18th October 1916, the judgment-debtor's appeal to His Majesty in Council, which had been admitted by the High Court at Calcutta more than two years previously, was dismissed for want of prosecution. On the 12th April 1918, the decree holder again filed an application for execution of the decree of the 4th July 1913. The judgment-debtor subsequently filed an objection in that execution proceeding contending that it was barred by the expiration of more than three years from the date when the last step was taken, viz., on the 13th December 1913. The decree holder on the other hand contended that under the provisions of Section 15 of the Limitation Act the period between the 27th January 1914, when the High Court made the order allowing execution to proceed subject to the decree holder providing security, and the 18th October 1916 when the judgment debtor's appeal to the Privy Council was dismissed for want of prosecution, should hot be taken into consideration in computing the period of limitation.
5. The objection was heard on the 14th September 1918 and the Subordinate Judge was of opinion that the order of the High Court of the 27th January 1914 was not an order staying execution within the meaning of Section 15 of the Limitation Act, and held that the execution of the decree was barred by limitation.
6. It is from this order that the present appeal is brought. No reported case has been referred to us in which the application of Section 15 of the Limitation Act to an order such as the present has been considered. It is contended on behalf of the respondent-judgment-debtor that the order is not one staying execution, but in fast an order allowing execution to proceed subject to a condition to be performed by the decree-holder, and the latter's inability to execute the decree is not due to any order of the Court staying the execution but to his own default in providing security.
7. The decree-holder-appellant on the other hand contends that whatever be the form of the order, it in substance restricts his right to proceed with the execution and in fact stays the execution by imposing upon him an obligation which it was impossible for him, in the circumstances, to comply with. In support of his contention we have been referred to an unreported case decided by the Calcutta High Court and mentioned in the notes portion of the Calcutta Weekly Notes, Vol. XVII at page eu [Chidam Santya v. Shaik Pachumuddin Naik 17 C.W.N. cm (151).,] in which the material facts are similar to the present case and was a decision in his favour. In my opinion the order of the High Court, whatever be the form of it, did in fact, in the circumstances of this case, stay the execution of the decree. It must be remembered that, admittedly, the decree-holder was not in a position to provide the security demanded. Had he been in a position to do so and had, nevertheless, purposely refrained from providing the security, different considerations might arise in considering whether there was any default on his part which contributed to the non prosecution of the execution proceedings, but such was not the case. In my opinion it is essential to look at the real effect of the order and not merely at the form. The effect in the present case was undoubtedly to stay the execution of the decree unless a condition impossible of performance were complied with by the decree holder, and I do not think that the stay of proceedings can be attributed to his default simply because the condition imposed was beyond his power to comply with. Apart from any order, he already had the right, notwithstanding the appeal from the decree of the High Court to His Majesty in Council, to prossed with the execution and an order in form allowing him to do that which he was otherwise entitled to do unconditionally hut imposing a condition which was impossible of performance and thereby depriving him of his right, is an order depriving him of the right he otherwise would have had to continue the execution proceedings just as much as if the order had been one in form staying execution until the condition was performed and as the condition could not be performed, the effect was to stay execution altogether. This view is to some extent supported by the decision in the case of Gunesh Dutt Singh v. Mungree Bam Chowdhry 19 W.R. 186 in 1873, where an order was made staying execution of a decree unless security was given pending an appeal from the decree to the Privy Council. It was there held that the time which elapsed between the date of the conditional stay order and the date of the decision by the Privy Council should not be counted in computing the period of limitation for taking execution proceedings. In my opinion the effect of the order in question clearly brought about the state of circumstances contemplated by Section 15 of the Limitation Act, and I hold accordingly that the time which elapsed between the 27th January 1914 and the 18th October 1916 should not be reckoned in computing the period of limitation for filing the execution petition. If that period of time be deducted, the application of the 12th April 1918 is not time-barred. A further point was taken by the appellant that the second application for execution should be regarded as a continuation of the previous proceedings, but the view already expressed make it unnecessary to consider this question. In the result the appeal is allowed with costs here and in the lower Court. The order appealed from is set aside and the Subordinate Judge is directed to proceed with the execution proceedings according to law.
Foster, J.
8. I agree with the view taken by the learned Chief Justice that Section 15 of the Limitation Act is applicable to this particular case and that the appeal should he allowed. At first I was impressed by the argument advanced on the side of the respondent that the High Court order, passed undeniably under Order XLV, Rule 13 19 W.R. 186.(b) of the Civil Procedure Code, was in its express terms not an order of stay or injunction in the technical legal sense, but an order permitting the execution pending the judgment debtor's appeal to His Majesty in Council, the permission being qualified only by an order that the executing Court should fix and require security. On the other side the appellant argues that (as is recognised in the first part of Rule 13) he bad the right then existing to proceed with his execution, and the judgment debtor moved the High Court to restrict that right, giving as his reason the fact that the decree-holder had no property. So, he urges, the parties and the Court were in agreement that the decree-holder, who was directed to furnish security, could not do so, and the order for security would in effect be a stay of execution.
9. These being the arguments, the question is whether Section 15 of the Indian Limitation Act is confined to cases of direct stay or injunction or can be extended to orders which indirectly but very proximately and effectually cause a stay. I do not think an acceptance of the latter proposition will unduly strain the interpretation of the Section. Looking at Rule 14 of Order XLV, I see that the High Court is empowered to increase the security to be required from the decree bolder-respondent in the Privy Council appeal; the object manifestly being to en-pure a full indemnification of the judgment-debtor appealing to His Majesty in Council. It is there provided that if the increased security be not furnished, the Court "shall as far as may be practicable, stay the further execution of the decree" It seems to roe reasonable to gather from this that if the law requires a stay in default of part of the security, a stay must be the inevitable and necessary consequence of a default in respect of the whole security. In the present case the whole security was estimated and required, so the High Court's order necessarily implied a stay of execution in case of failure to furnish it.
10. So the order passed under Order XLV, Rule 13 19 W.R. 186.(b), is in substance a restriction on an existing right to execute a decree; it is an inhibitory order suspending that right by an order nisi. The suspension was made absolute by the Subordinate Judge's order dismissing the execution on the 20th March 1915. In Gunesh Dutt Singh v. Mungree Chowdhry 19 W.R. 186. it was held that where a judgment debtor, who has appealed to the Privy Council, obtains a Rule nisi from the High Court suspending execution until security is given, and this Rule is subsequently made absolute, it does not operate against the decree holder in the matter of time; limitation not running against him until the result of the appeal is known, or the Rule otherwise falls to the ground; and the Court based its decision on the necessary effect of the High Court's order. No doubt that case was governed by Act XIV of 1859 (vide Section 1, Act IX of 1871), but I find so highly esteemed a work as Woodroffe and Ameer Ali's Commentary on the Civil Procedure Code quoting it as still an authority bearing upon Order XLV, Rule 13, of the Code. It may be argued that the Subordinate Judge's order was of no effect, and that the decree-holder could, if he had the will and the means, have come into Court immediately after the order of dismissal of his execution and offered the security and demanded reopening of the execution. I do not accede to this proposition. In my opinion the High Court's order of the 27th January 1914 left the terms of the order for security to the Subordinate Judge, and the terms of such an order in usual practice include a provision as to the time within which security is to be furnished. As examples of this practice, I would take the provisions for security in Order XLV, Rule 1, and in Order XLI, Rule 10, of the Code; in both cases the time fixed by the Court is an essential part of the order. A contrary opinion would involve great hardship and expense to a judgment-debtor; for he would have to remain in uncertainty and on the defensive in the execution case for an indefinite period. So I take it that the Subordinate Judge's dismissal of the execution was a final order passed in due course of law; and that that order constituted in itself an absolute dismissal of the pending execution. My conclusion is that in the circumstances of this particular case the order of the High Court, and what I may call the ancillary orders of the Subordinate Judge, did in fact stay the execution proceedings within the meaning of Section 15 of the Limitation Act.
11. The learned Vakil for the appellants quoted and laid stress upon the rule in the Privy Council ruling Qamar-ud-din Ahmad v. Jawahir Lal 27 A. 334 : 2 A.L.J. 397 : 1 C.L.J. 381 : 9 C.W.N. 601 : 15 M.L.J. 258 : 32 I.A. 102 : 7 Bom. L.R. 433 : 8 Sar. P.C.J. 810 (P.C). The rule appears to me to be that when in an execution case certain proceedings have intervened to interrupt the course of the execution and that execution has not been finally dismissed and there has subsequently been an application to renew the execution proceedings so interrupted, the second application should be taken to effect a revival of the first application; provided that the interruption has not been caused by any act or default of the decree-holder. But here there was, as I have held, a definite final order dismissing the first application, and there was no application for revival; in fact the second application was a new application for execution in the form prescribed in Order XXI, Rule 11, Civil Procedure Code. I am, therefore, doubtful as to the applicability of this particular rule.
12. On the other hand 1 have, as the result of a full consideration of the facts of this particular case, arrived at the conclusion that limitation is, and in fact can only be, saved by the terms of Section 15 of the Limitation Act.