Patna High Court
Chulhai Naik And Ors. vs Bharath Narain Singh And Anr. on 25 March, 1958
Equivalent citations: AIR1958PAT542, 1958(6)BLJR393, AIR 1958 PATNA 542, ILR 37 PAT 891
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT R.K. Choudhary, J.
1. This is an appeal by a decree-holder against the judgment and the order of the Subordinate Judge of Darbhanga passed in money appeal No. 1/9 of 1953 reversing those of the 1st Munsif of Samastipur passed in Miscellaneous case No. 103 of 1952.
2. The short facts are these: One Chulhai Naik obtained a money decree against the respondents in money suit No. 590 of 1939 on 12-4-1940. In execution of that decree in execution case No. 2649 of 1941 a parcel of land belonging to the respondents was sold on 27-10-1941.
The sale having been duly confirmed, the decree-holder Chulhai Naik obtained delivery of possession on 24-12-1942. In 1943 the respondents judgment-debtors filed a title suit, being title suit No. 251 of 1943, for setting aside the decree passed in the above money suit and the sale held in execution thereof. The suit was dismissed by the trial court on 25-5-1946, but, on appeal, the lower appellate court held that though the decree obtained in the money suit was a good decree, the sale held in execution thereof was bad as notice under Order 21, Rule 22 of the Code of Civil Procedure was not served on the judgment-debtors.
The suit was, accordingly, decreed in part on 22-2-1947, and the sale held in execution case No. 2649 of 1941 was set aside. A second appeal was preferred in the High Court, but that was dismissed on 21-7-1949. On 2-4-1952, the decree-holder, Chulhai Naik, filed an application for execution, being execution case No. 100 of 1952, for realising the decretal dues by sale of land belonging to the judgment-debtors.
An objection to the execution was filed by the judgment-debtors who contended that the execution was time barred. The executing court overruled the objection, but on appeal by the judgment-debtors, the lower appellate court accepted their contention & held that the application for execution was barred under article 181 of the Indian Limitation Act. The decree-holder thereupon preferred the present appeal in this Court. He, however died during the pendency of the appeal and his heirs have been substituted in his place.
3. It is contended on behalf of the appellants that the application for execution that was made on 2-4-1952, was an application for revival of the previous application for execution made in execution case No. 2649 of 1941, and, it has not been disputed by the learned Counsel for the respondents that it was not so. Thus, it is conceded in this case that the application which gave rise to this appeal was to revive the previous execution case. It has been faintly argued by the learned Counsel for the appellants that there is no limitation for such an application.
He had, however, to concede that so fat as this Court is concerned, the point is set at rest by various decisions of this Court that even for such an application there is a period of limitation as provided under article 181 of the Indian Limitation Act. If any authority is needed, reference may be made to Saukhi Singh v. Thakur Prasad Sinha, 18 Pat LT 90: (AIR 1937 Pat 43) (A). In that case in execution of a decree obtained in 1921 some property of the judgments-debtor was sold on 30-1-1928.
The sale was, however, set aside on 14-3-1934, and the decree-holder, thereafter, filed an execution petition for the resale of the property. It was held that the effect of the application was a revival of the previous execution and it was governed by article 181 of the Limitation Act.
4. The next point, which is the main question involved in this case, as urged by the Counsel for the appellants, is that the period of limitation prescribed under the above article should be counted from 21-7-1949, when the second appeal was dismissed by the High Court, whereas on behalf of the respondents it has been argued that the above period should be counted from 28-2-1947, when the sale, was set aside by the lower appellate court.
Article 181 provides a period of three years for applications for which no period of limitation is provided elsewhere in the schedule to the Limitation Act or by Section 48 of the Code of Civil Procedure, to be counted from the date when the right to apply accrues. There is no period of limitation prescribed for an application for a revival of a previous execution case elsewhere in the above schedule, and; as already held, the application of this kind is governed by this article of the Limitation Act.
The controversy between the parties is only with respect to the date from which this period is to be counted. On behalf of the appellants the argument advanced is that the period has to be counted from the date when it was finally decided that the sale no longer stood, that is to say, when, in the present case, tile High Court dismissed the appeal preferred against the order of the lower appellate court by virtue of which the sale had been set aside.
On the other hand, the contention put forward on behalf of the respondents is that the period has to be counted from the date on which the right to apply accrued first, that is to say, in the present case, on the date when the sale was set aside by the lower appellate court.
5. The principle involved in the case has been decided by a Bench of the Calcutta High Court in Raghunandun Pershad v. Bhugoo Lall, ILR 17 Cal 268 (B). In that case certain decree-holders attached certain property in execution of the decree passed on 7-3-1891, whereupon a claim was made on behalf of some strangers to that property and this court allowed the claim in respect of a two-thirds share of the same.
The decree-holders, thereafter, filed a title suit for a declaration that the entire sixteen annas of the property was liable to be sold in execution of that decree. That suit was decreed on 29-3-1886, but the decree was reversed on appeal by the lower appellate court upholding the order releasing two-thirds share of the property. A second appeal preferred in the High Court proved unsuccessful.
Thereafter, on 15-8-1888, the decree-holders applied for execution of the decree against the remaining one-third share in the property. An objection was raised by the judgment-debtor on the ground of limitation. In support of the execution petition reliance was placed on various cases with respect to which their Lordships observed as follows:
"The cases cited are all distinguishable from the present in this respect, namely, that in those cases the execution proceedings were either interrupted by an intermediate order, which was afterwards set aside, or were rendered infructuous so as to make a fresh application necessary, .........and in these cases, the 2nd application could not have made for a time by reason of the state of things that intervened, though in not making the second application earlier, no blame attached to the decree-holder".
And then with respect to the case under consideration their Lordships observed:
"Now, it is clear that in the present case those considerations have no application. It is clear that the decree-holders could notwithstanding the order in the claim case, have prosecuted their application for execution against the one-third share which was not released then quite as well as they can do so now. Their present application is for the sale of that third share of the property; there was no bar then to their enforcing the execution of the decree, and there has been no subsequent removal of that bar".
The objection raised by the judgment-debtor was, therefore, accepted and the execution was held to be barred. The same principle was accepted in a Bench decision of this Court in Ibrahim Hussain Khan v. Sheopratap Narain, AIR 1926 Pat 129 (C). In that case also it was held that the filing of the appeal by the objector against the order dismissing his objection against the execution of the decree does not operate as a bar to the decree-holder taking out fresh execution and, therefore, limitation for fresh application begins from the date of dismissal of the objection.
Applying the above principle to the facts of the present case it is manifest that the application made on 2-4-1952, for the execution of the decree was barred by limitation as the period of three years is to be counted from 22-2-1947, when the sale was set aside by the lower appellate Court. After the sale was set aside, the decree-holder was not prevented from mating a fresh application for execution and his right to make the application accrued as soon as the sale was set aside.
6. The correctness of the above proposition may be tested in this way: Suppose after the sale was set aside by the lower appellate court and during the pendency of the appeal in the High Court the decree-holder made an application for execution of the decree: could the execution be objected to on the ground that the application was premature as the right to apply has not yet accrued?
In my opinion, the answer must be in the negative and it is conceded by learned Counsel for the appellants that in a case like that the above objection could not be maintained. It is, therefore, clear that the right to apply for a fresh application did accrue to the decree-holder on 22-2-1947, when the sale was set aside by the lower appellate court, and in that view of the matter, the application was barred by time. It has, however, been contended that the decree-holder had to wait till the result of the second appeal in the High Court inasmuch as if he had succeeded in that appeal, there could have been no question of making a fresh application.
That may have been prudent on the part of the decree-holder to do so. But we are here concerned not with the exercise of prudence but with the date on which the right accrues. The right having been already accrued, the limitation could not stop to run because it was prudent on the part of the decree-holder to have waited for the result of the appeal in the High Court.
The above view gains support from a Bench decision of the Allahabad High Court in Mt. Bhagwati v. Sant Lal, AIR 1946 All 360 (D). It was held in that case that the expression "when the right to apply accrues" in article 181 of the Limitation Act means ''when the right to apply first accrues". It was further held that it may be that in a particular case the plaintiff may not make an application on the first occasion that he became entitled to make one, but that would not prevent the limitation running against him, which depends upon the time of accrual of the right to make an application and that the limitation does not depend upon the forbearance on the part of the plaintiff to exercise the right but upon the date of the accrual of that right and, therefore, it cannot remain suspended by reason of any omission or forbearance on the part of the plaintiff.
7. In Akshoy Kumar Roy v. Abdul Kader Khan, AIR 1930 Cal 329 (E) an application for execution was made by a decree holder on 9-12-1921 and the properties of the judgment-debtors were sold in execution of the decree on 23-2-1922, when a third person became the auction purchaser. The judgment-debtor having objected, the sale was set on the 5-7-1923. The auction purchaser appealed against the order which was confirmed on appeal on 29-3-1924. The decree-holder filed a fresh execution on 15-12-1926.
It Was held that the time for reviving the execution proceedings accrued on 5-7-1923, when, the execution proceedings were at an end, the sale being set aside and that the application in that case having been made more than three years after the right to apply accrued was barred by time. Counsel for the appellants, however, sought to attack the correctness of this decision on the ground that in coming to the above decision their Lordships relied on a Bench decision of the Allahabad High Court in the case of Madho Ram v. Nihal Singh, ILR 38 All 21: (AIR 1915 All 336) (F) which subsequently was overruled by a Full Bench of that Court in the case of Gajadhar Singh v. Kishan Jiwan Lal, ILR 39 All 041: (AIR 1917 All 163) (FB) (G).
It is true that the case of ILR 38 All 21: (AIR 1915 All 336) (F) was overruled in the above Full Bench case, but it is not correct to say that their Lordships of the Calcutta High Court based their decision on the above decision of the Allahabad High Court in ILR 38 All 21: (AIR 1915 All 336) (F), though they referred to that case by way of an illustration. Their Lordships actually reached the decision on independent consideration of the law on the subject.
8. Reference may be made to another Bench decision of this Court in the case of Sona Debi v. Bhola Prasad, ILR 25 Pat 432: (AIR 1947 Pat 225) (H) which was a case for making the preliminary decree final. The facts of that case are these: One Bhola Prasad Sahi and others executed two mortgage bonds in favour of one Sona Debi, one in 1917, and the other in 1918. The mortgagors subsequently executed two other mortgage bonds in favour of Ramsarisht Singh and others, one in 1921 and the other in 1927 in which some of the properties covered by the bonds of 1917 and 1918 were given in security.
The mortgagees of the bonds of 1921 and 1927 instituted a suit in 1933 to enforce the dues of their mortgages impleading Sona Debi as defendant. These mortgagees made out a case that they were subrogated to the rights of the mortgagees in respect of eight other mortgage bonds of the years 1904 to 1916, that is, prior to the mortgage bonds of Sona Debi.
Sona Debi also instituted a suit on the basis of the mortgages of 1917 and 1918 impleading the mortgagees of the bonds of 1921 and 1927 as parties. The two suits were tried together were decreed and separate preliminary decrees were passed on 6-2-1935, in which it was declared that Sona Debi shall not have any priority for her mortgage dues in respect of the eight mortgage bonds to which priority was declared in favour of the mortgagees of 1921 and 1927. Sona Debi thereafter preferred two appeals against the two preliminary decrees challenging the portions of the decrees which were passed against her.
On 22-1-1936, Sona Debi withdrew the appeal which was against the decree passed in her suit as she was not prepared to pay the deficit court-fee which she was asked to pay on the memorandum of appeal. She only prosecuted the appeal which was against the decree passed in the suit of the mortgagees of 1921 and 1927 and the same was ultimately dismissed on 16-1-1939. Thereafter, she filed on 9-4-1940, an application for making the preliminary decree passed in her suit final.
It was held that the application was barred by limitation as the applicant had a right to apply for making the decree final at any time within three years from 22-1-1936, the date on which her appeal was withdrawn as there was no obstacle in her way, no injunction had been issued, no stay order had been given by the High Court and there was no decision arrived at any collateral proceeding preventing her from making the application. In this connection the observation of their Lordships of the Judicial Committee made in the case of Juscurn Boid v. Pirthi Chand Lal, 46 Ind App 52: (AIR 1918 PC 151) (I) is also relevant. It is as follows:
"But by the decision in the first suit, No. 248 of 1904, the sale was reversed in its entirety and for all purposes irrespective of the decrees in the three later suits, so that if the reversal of the sale is the cause of action the only question is whether time began to run as the plaint alleges from 3-8-1906, the date of the appellate decree, or, as the defendant-respondent contends, from 24-8-1905, the date of the original decree in suit No. 248 of 1904.
Both courts have held that the failure of consideration was at the date of the first court's decree. Their Lordships feel no doubt that as between these two decrees this is the correct view, for whatever may be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended by presentation of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal''.
On behalf of the appellants reliance has been placed on the cases of ILR 39 All 641: (AIR 1917 All 163) (FB) (G); S. Jowad Hussain v. Gendan Singh, AIR 1926 PC 93 (J); Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 PC 165 (K); Chandra Mani Saha v. Anarjan Bibi; AIR 1934 PC 134 (L); and Rama Krishna Rao v. K. Chellayamma, AIR 1953 SC 425 (M).
None of these cases, in my opinion, has any application to the facts of the present case. In ILR 39 All 641: (AIR 1917 All 163) (FB) (G), a preliminary decree was obtained under Order 34, rule 4 of the Code of Civil Procedure on 16-5-1911, and six months' time was allowed to the judgment debtor to pay up the decretal amount. There was, however, an appeal against the preliminary decree in the High Court which affirmed the decree of the trial court on 23-2-1915.
Thereafter, the decree holder put in an application on 23-6-1915, for the preparation of the final decree. It was contended on behalf of the judgment debtor that the application was barred by time as having been made more than three years after the expiry of the time allowed to the judgment debtor to pay up the decretal amount. It was held that limitation for such an application ran not from the expiry of the term fixed for payment by the original decree, but from the date of the decree of the final court of appeal.
Thus, in that case, the decree which had to be made final was itself a subject matter of appeal in the High Court and after the High Court's decision the preliminary decree of the trial court merged in the decree of the High Court. To the same effect is the decision of the Privy Council in AIR 1926 PC 93 (J). In AIR 1932 PC 165 (K) there is an observation that, so long as there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage, and, great reliance has been placed on it by the learned Counsel for the appellants, but that observation must be read with the facts of that case.
That was a case covered by article 182 (2) of the Limitation Act which clearly provides that, where, there has been an appeal, the period of limitation has to be counted from the date of the final decree or order of the appellate court or the withdrawal of the appeal. Therefore, under the provisions of the Limitation Act itself the decreeholder was entitled to wait till the result of the appeal.
The case of AIR 1934 PC 134 (L) involved the question of interpretation of article 180 of the Indian Limitation Act which provides for the limitation for making an application by an auction-purchaser of immovable property for delivery of possession to be counted from the date when the sale becomes absolute. In that case an application for setting aside the sale was dismissed by the court of first instance, and there was an appeal against the order of that court refusing to set aside the sale.
It was held that the sale does not become absolute within the meaning of article 180 of the Limitation Act until the disposal of the appeal, even though the court of first instance may have confirmed the sale, as it was bound to do when it decided to disallow the application for setting: aside the sale. The question as to when the right to apply accrues as given in Article 181 of the Limitation Act was not under consideration in that case. To the same effect is the decision of the Supreme court in AIR 1953 SC 425 (M).
9. On consideration of the authorities discussed above, my concluded opinion is that under Article 181 of the Limitation Act the right to make an application for a revival of an execution petition accrues to the decree holder as soon as the sale held in execution of his decree is set aside and the running of limitation is not suspended till the result of the appeal taken against the order setting aside the sale unless the decree holder is prevented by an order of the court or any provision of law from proceeding with the execution of his decree.
In that view of the matter, the application made by the appellants in the present case on 2-4-1952, for the execution of the decree must be held to be barred by, limitation. There is thus no merit in this appeal which is, therefore, dismissed with costs.
V. Ramaswami, C.J.
10. I agree.