Patna High Court
Ram Anugrah Raut And Ors. vs Mt. Girja Devi And Ors. on 6 May, 1954
Equivalent citations: AIR1954PAT502, AIR 1954 PATNA 502
JUDGMENT Sinha, J.
1. These appeals have been filed by the decree-holders against an order passed in their execution case holding that the execution was barred by limitation. The only question involved in these cases is about the correct interpretation of Article 182 (5), Limitation Act, and whether, upon its correct interpretation, the execution can be said to be barred by time. These appeals are directed against the same order which was passed by the Court below on the respective objections of the judgment-debtors.
2. The material dates in this case, which are not in dispute, are as follows:
7-6-1941. Final decree.
27-4-1943. First execution case No. 51 of 1943 taken out; question of valuation raised, and that objection was registered as Misc. Case No. 82 of 1943.
9-12-1944. Miscellaneous Case No. 82 of 1943 disposed of; Court below accepted the valuation given by the decree-holders in respect of lot Nos. 5 to 8 and 10; valuation of the decree-holders in regard to lot Nos. 1 to 4 and 9 was not accepted. It was further directed that lot Nos. 1 to 3 or 1 to 4 should be sold first to satisfy the decree. Both sides filed appeals to this Court against that order.
5-3-1948. Both the appeals were dismissed by this Court.
13-12-1944. There being no stay of the proceedings in execution, the executing Court ordered the decree-holders to take further steps by 2-1-1945. No steps having been taken by that date, the executing Court extended the time, up to 15-24945.
15-2-1945. Execution case dismissed.
13-5-1948. Present execution case No. 33 of 1948 taken out. The respondents-judgment-debtors filed objections in several Miscellaneous cases which have given rise to these appeals.
3. The contention of the judgment-debtors is that the execution case is barred by time, having been taken out more than three years after the dismissal of the previous execution case on 15-2-1945. The decree-holders, on the other hand, contend that, under Article 182 (5), Limitation Act, the limitation is saved because, under that Article, the time will start to run from 5-3-1948, the date of the final order in regard to the valuation matter made by this Court on appeals by the parties. They submit that, looked at from any point of view, the order of this Court dismissing the miscellaneous appeals, arising out of the previous execution case, is the final order upon the application in execution as also the final order upon the application for taking steps in aid of execution; and further that the objection of the judgment-debtors is barred by constructive 'res judicata' inasmuch as when the present execution was started, notice was served upon the judgment-debtors and when they appeared, not only that they took no objection to the execution but they submitted to the execution by making payment for costs, as ordered by the Court, and they asked for instalments for payment of the decree and also deposited a certain sum of money towards the satisfaction of the decree.
4. The relevant portion of Article 182 (5), Limitation Act, reads as follows:
"For the execution of a decree or order of any Civil Court not provided for by Art. 183 or by S. 48 of the Code of Civil Procedure, 1909 (V of 1908).
Three years; or where a certifiedcopy of the decree or order has been registered, six years.
(Where the ap plication next hereinafter men-tioned has been made) the date of the final order passed on an ap-plication made in accordance with law to the proper Court for execu tion or to take some step in aid of execution of the decree or order, or"
On a plain reading of the provision mentioned above, three years will start running from the date of the final order passed on an application made in accordance with law to the proper Court (1) for execution or (2) to take some step in aid of execution of the decree or order; in other words, the limitation will commence running either from the date of the final order made on an application for execution or from the date of the final order on an application to take some step in aid of execution.
5. The question, therefore, is whether the order of this Court passed in the valuation matter on appeal is the final order within the meaning of the expression used in Sub-clause (5) of Article 182. The question of valuation is a matter vitally connected with the execution of a decree especially In cases where the Bihar Money-Lenders (Regulation of Transactions) Act, 1939 (7 of 1939) applies. Section 13 (1) of that Act enjoins that the Court executing the decree shall hear the parties to the decree and estimate the value of such property and of that portion of such property the proceeds of the sale of which it considers will be sufficient to satisfy the decree; and the importance of this provision can be gathered from the fact that an appeal is provided for in Section 13 (2).
Section 14 of the Act says that the proclamation of the intended sale of property in execution of a decree shall include only so much of the property of the judgment-debtor the proceeds of the sale of which the Court considers will be sufficient to satisfy the decree and shall state the value of the property or portion of the property to be sold, as determined under Section 13; and that such property or portion of it shall not be sold at a price lower than the price specified in the said proclamation.
It provides further that, if the highest amount bid for the property is less than the price specified for such property in the proclamation, the Court may sell the property for such highest amount if the decree-holder consents in writing to forego so much of the amount decreed as is equal to the difference between the highest amount bid and the price specified for such property in the sale proclamation. It must, therefore, be held that the question of valuation is of prime importance to the decree-holders. It was not disputed that the Money-Lenders Act applies to the present execution and that the valuation matter is a vital one for the decree-holders executing their decree. The order passed upon the objection of the judgment-debtors in the previous execution case on 9-12-1944, not only related to the valuation but it also prescribed the order in which the different properties mentioned in the execution petition were to be sold. That again was of utmost importance to the decree-holders in executing the decree.
The order of the Court below on both these points was against the decree-holders and they had to file appeal against that order of the Court below. As a matter of fact, both sides had filed appeals to this Court. The decree-holders had two courses open to them, either to submit to the order of the Court below and proceed with the execution or go up in appeal. They chose the latter course; and so long as those appeals remained pending in this Court, the decree-holders were unable to proceed with their execution case.
It is said that the value of lot Nos. 5 to 8 and 10, as given by the decree-holders themselves, having been accepted, they were free to go on with the execution and sale of those properties in spite of appeals having been filed against the order in the valuation matter. There are two answers to this contention of the judgment-debtors. In the execution petition, the decree-holders had prayed that "by putting to auction the property entered in the inventory given below, the decretal money together with the present execution cost may be realised."
It is true that the decree-holders had divided the property into ten lots, but they treated all these ten lots as one unit and wanted their decree to be realised by the sale of the property, that is, by sale of all the lots. The subdivision of the property into lots was merely for the sake of convenience; the Court had accepted the valuation given by the decree-holders in respect of some property and it did not accept their valuation in respect of others. The order of the Court further was in regard to the order in which the several lots were to be sold. The decree-holders were, therefore, not in a position to proceed with the sale of lots 5 to 8 and 19, firstly, because the Court had directed that lots 1 to 3 or lots 1 to 4 should be sold first, and secondly, because the valuation in regard to lots 5 to 8 and 10 even, as given by the decree-holders though accepted by the Court below, was challenged in appeal by the judgment-debtors.
In that view of the matter, in my opinion, the decree-holders were not in a position to proceed further in the execution case without the orders having been passed by this Court in the appeals filed by the respective parties. The order of the Court below in regard to valuation and also as to the selling of lots 1 to 3 or 1 to 4 first was, therefore, an order which placed impediment in the furtherance of the execution, and, unless that impediment had been removed, the execution case could not have gone on. In that view of the matter, the order by this Court cannot but be the final order upon the application in execution In my opinion, the order passed by this Court is also a final order on an application made to take some step in aid of execution, and is covered by the second part of Article 182 (5). By raising objections in regard to valuation, the judgment-debtors had put impediments in the way of execution levied by the decree-holders. The objections were partly allowed and, therefore, the impediment in the execution to that extent had to be removed, and the filing of the memorandum of appeal in this Court against the order is, in my opinion, an application for taking step in aid of execution within the meaning of the Article.
6. The view which I take of Article 182 (5) of the Act is amply supported by authorities both of the Privy Council, of this Court and of the Madras High Court. I will first refer in this connection to the case of -- 'Rajindra Prasad v. Indrasan Prasad', AIR 1954 Pat 46 (A), a decision of a Division Bench of this Court. The facts of that case are indistinguishable from the facts of the present, case. The order of the executing Court in that case was to sell lot Nos. 2 and 3 first and if the price fetched by their sale be not sufficient to liquidate the decree, lot No. 1 should be sold. On 26-10-1942, there was an appeal by the decree-holders against the order of the Court below to this Court. On 3-3-1943; while the appeal was pending in this Court, the execution case was dismissed for default. The appeal was ultimately heard and dismissed on 17-11-1944. The execution, which was challenged to be barred by time, was taken on 17-11-1947, much more than three years from the date of the dismissal of the execution petition but within three years from the date of the dismissal of the appeal by this Court. This Court held that the application for execution was in time, and it was observed that "it is clear that the present case falls within the ambit of Article 102 (5), Limitation Act, and the 'terminus a quo' for calculating the period of limitation would be 17-11-1944, when the High Court dismissed the appeal preferred by the decree-holders."
In so deciding, their Lordships followed the decision in -- 'Annamalai Chettiar v. Valliammai Achi', 72 Ind App 296 also reported in --'AIR 1945 PC 176 (B)', and two decisions of this Court, namely, -- 'Chandrabali Kalar v. Baidya-nath Banerjee', AIR 1946 Pat 471 (C) and --'Rameshwar Prasad v. Rajendra Prasad', AIR 1952 Pat 8 (D).
Mr. Das suggested that that decision was not a correct decision and that the matter should be referred to a larger Bench. In my opinion, there is absolutely no merit in this contention, and I have not the least doubt that the decision in this case, supported as it is by the Privy Council and two Patna cases referred to above, is the correct one and we are bound by that decision. In the case of -- 'AIR 1945 PC 176', also reported in -- '72 Ind App 296 (B)', the decree for money was sought to be realised by attachment of certain money in the hands of garnishees. The suit had been decreed on 23-11-1934, against two widows and the decree directed that it should be executed against the property of the joint family of which the husbands of the two widows had been members and also against the assets of the maker of the promissory note in the hands of defendant. The decree, therefore, was not executable against the private property of the widows. On 14-12-1934, execution was taken out, and attachment of the moneys in the hands of the garnishees was sought. On 11-2-1935, the decree-holder made an application for his appointment as Receiver to realise the moneys in the hands of the garnishees.
On 19-2-1935, defendant 2 filed an application asking the Court to set aside the order of attachment of the moneys in the hands of the garnishees on the ground that she had not been served with notice of the application for attachment, and further that the moneys attached were her personal property. On 10-7-1935,. the Court ordered that there was no necessity to set aside the order of attachment, but, if defendant 2 was so advised, she might file an application under Section 47, Civil P. C., which might be enquired into. On that very date, namely, 10-7-1935, the application of the judgment-creditor for appointment of Receiver was dismissed. On 25-7-1935, defendant 2 made an application under Section 47, Civil P. C., praying that the attachment of the moneys in the hands of the garnishees be raised. On 22-10-1936, by an order of the Court the attachment was raised. Against that order, there was an appeal by the decree-holder on 3-12-1936.
On 27-9-1933, the appeal was dismissed by the High Court. The execution petition in question was filed on 25-11-1939. It was contended by the judgment-debtors that, in view of what took place on 10-7-1935, there was no application outstanding and the present application, having been made more than three years after 10-7-1935, was barred by time, and the High Court of Madras gave effect to that contention. Their Lordships of the Judicial Committee held that the view of the High Court was wrong inasmuch as on "10-7-1935, the application of one of the judgment-debtors to set aisde the attachment was pending and that application was finally disposed of by the order of the High Court in appeal. Upon those facts, their Lordships observed:
"Their Lordships are clearly of opinion that the appellant brings his case within both branches of that paragraph (182(5)). Execution petition No. 418 of 1934 was an application made according to law for execution of the decree, and it was finally disposed of by the order of the Court of appeal made on 27-9-1938, which brings the case within the first branch. Further, the application to the Court of appeal of 3-12-1936, to set aside the order of the Subordinate Court raising the attachment was an application according to law to take a step in aid of execution of the decree."
Their Lordships also overruled the decision arrived at in -- 'Govinddas Rajaramdas v. Gan-patdas Narrottamdas', AIR 1923 Bom 431 (E), where it was held that an appeal to the High Court against an order in a 'dharkast' cannot be an application in accordance with law to the proper Court for execution and that the High Court was not a Court whose duty it was to execute decrees passed by the lower Courts, and it was held that the appellate Court must be deemed to be also the proper Court and in that case the High Court of Madras was the proper Court whose duty it was to execute the decree.
The only difference between this case and the present case, as pointed out by Mr. Das, was that in the Privy Council case the execution case was kept pending and had not been dismissed. It is true that from the judgment it does not appear that the previous execution case was dismissed, but the raising of the attachment of the moneys in the hands of the garnishees, the only mode by which the decree was sought to be realized, was the order equivalent to the dismissing of the application for execution.
7. In the case of -- 'AIR 1952 Fat 8 (D)', where the facts were not very different from the facts of the present case, it was held that the order of the appellate Court upon appeal against the order of the Court below raising the attachment in respect of some of the properties was the final order within the meaning of Article 182 (5). In this case, on 29-11-1939, objection was taken by one of the judgment-debtors to the attachment of some of the properties (Misc. Case No. 150 of 1939) and, on 6-1-1940, the objection was allowed. The decree-holder, feeling aggrieved with this order, filed an appeal in the High Court (Misc. Appeal No. 114 of 1940). On 28-1-1941, during the pendency of the appeal in the High Court, an order was passed by the Court below to the effect that the execution case be dismissed on part satisfaction as some of the properties had been sold in the meantime. The Miscellaneous Appeal No. 114 of 1940, however, was allowed on 22-9-1941, and the case remanded for deciding the objection of the judgment-debtor in accordance with law. On remand, on 15-1-1942, the objection to the attachment was rejected, and the decree-holder was asked to take steps.
On 23-4-1942, there was an appeal by the judgment-debtor (Misc. Appeal No. 139 of 1942) in the High Court. Some properties were sold in the meantime and the execution case dismissed on 18-11-1942. On 28-7-1944 Misc. Appeal No. 139 of 1942 was dismissed. When the order of the High Court was received by the Subordinate Judge, the Court asked the decree-holder on 29-8-1944, to take steps by 11-9-1944. No step having been taken, the execution case was disposed of on 9-11-1944, and the present application for execution was made on 18-7-1947. It was contended by the judgment-debtor that, as the execution case had been dismissed on part satisfaction on 28-1-1941, the execution taken out on 18-7-1947, was barred by limitation. It was held by the decision of this Court, to which I was a party, that the question whether the property was liable to attachment and sale was finally decided not by the executing Court but by the appellate Court 'in Misc. Appeal No. 139 of 1942, that is, on 28-7-1944, and, therefore, the application for execution was not barred by time. That case also relied upon the Privy Council case referred to above.
8. In -- 'AIR 1954 Pat 46 (A)', reference was made to another case of this Court reported in -- 'AIR 1946 Pat 471 (C)', and that case also had taken the same view as was taken in the case of -- 'AIR 1952 Pat 8 (D)', and the Privy Council case. To the same effect is decision in --'M.L.R.M. Lakshmanan Chettiar v. P.L.S.P. alias Sm. P.L. Malayandi Chettiar', AIR 1954 Mad 177 (P), where it was held that an appeal is the continuation of the proceedings in the original Court and sets at large the finality attached to the decision of the Subordinate Court and that, therefore, when an application has been made by the decree-holder to the proper Court for execution or for taking some steps in aid of execution and where there is an appeal against the order made on that application, it is the ultimate decision of the appellate Court that is the final order. It will serve no useful purpose to consider other decisions which have taken a similar view. No decision has been brought to our notice which has taken a view different from the one taken in these cases.
9. Mr. Untawalia, appearing for respondent No. 1 in Misc. Appeal No. 163 of 1950, has submitted that there could be only one final order in an application for execution or upon an application for taking steps in aid of execution. Whether there can be only one or several final order or orders must depend upon the facts of each particular case. If a certain objection is taken in the execution case, which is likely to retard the further progress of the, execution, the order disposing of the objection finally can be one of such final orders. Again, there can be a final order if some step is taken in aid of execution and the effect of the order is to put obstacles in the way of the execution and the decree-holder goes up in appeal against that order, that would be a final order. Article 182(5) itself suggests that two final orders are envisaged in that sub-clause one may be a final order upon the application for execution, and the other may be final order upon an application to take some steps in aid of execution.
Mr. Das also contended that the word 'or' occurring in Article 182 (5) between the word 'execution' and the expression 'to take some step' is disjunctive, meaning thereby that only one final order is contemplated. I do not accept that view as that view would be contrary to the view taken in the Privy Council case mentioned above. In the result, I hold that the order of this Court dated 5-3-1948, dismissing both the appeals by the parties was the final order on the application in execution as also the final order upon the application for taking steps in aid of execution.
10. Mr. Untawalia had faintly contended that an appeal to this Court would not amount to an application for taking steps in aid of execution. Mr. Das had, however, conceded that the memorandum of appeal could be taken as an application within the meaning of Article 182 (5). In the Privy Council case itself the order on appeal to the High Court was also taken as a final order upon an application made to take come steps in aid of execution. In my opinion, there is no substance in the submission of Mr. Untwalia.
11. So far as the question of constructive 'res judicata' is concerned, it is concluded by the decision of this Court in -- 'Atul Krishna Ghosh v. Brindaban Naik', AIR 1930 Pat 330 (G). The question of 'res judicata' has been raised by the decree-holders on the ground that, after the notice under Order 21, Rule 22, Civil P. C., was served, they appeared in the case, applied for instalments, paid the costs as ordered by the Court, and also paid a sum of Rs. 2,000/- towards the decree; and, therefore, it is said that they accepted the application for execution as a good execution and, when they accepted the position that it was an application in accordance with law and a competent application, they cannot afterwards object to the execution on the ground that it is barred by limitation. Mr. Das has argued that there is no question of 'res judicata' in this case because that question was not decided by a Court in any former proceeding or even in this very proceedings and, therefore, under Section 3, Limitation Act, the Court is bound to dismiss an application if it is found that that is barred by limitation, although that point was not taken by the judgment-debtors; and there being no estoppel against statute, there is no question of constructive 'res judicata' in the present case.
It was held by this Court jn -- 'AIR 1930 Pat 330 (G)', already referred to, that if is only when the point of limitation is concluded by proceedings in a previous execution that the judgment-debtor is not allowed to raise the question of limitation in a subsequent execution of the decree: that so long as an application for execution is pending, the judgment-debtor can show at any stage that the application is barred and the Court will have to dismiss the application under Section 3, Limitation Act. To the like effect is the decision of this Court in -- 'Kesho Prasad Singh v. Harbans Lal', AIR 1920 Pat 570 (H). There are, however, decisions where it has been held that if the matter in dispute is decided in the course of the same execution proceeding, that matter cannot be re-agitated at a subsequent stage of the same proceeding: -- 'Ram Kirpal v. Mt. Rup Kuari', 11 Ind App 37 (PC) (I); --'Ram Narain Singh v. Basudeo Singh', AIR 1947 Pat 298 (J); -- 'Sham Sunder Singh v. Dhirendra Nath', AIR 1950 Pat 465 (K). So far as the question of limitation is concerned, there is no direct case on the point. If the matter were 'res inte-gra', a view may have been taken that if the principles of 'res judicata' and constructive 'res judicata' apply to execution proceedings, it would be unreasonable to hold that, so far as the question of limitation is concerned, that would not be covered by the principle of constructive 'res judicata'. It is. however, not necessary to pursue that because, on the grounds mentioned above, the appeals succeed.
12. Mr. B.N. Bhagat, appearing on behalf of respondents 4 to 7 in Misc. Appeal No. 163 of 1950, had filed an application on behalf of his clients for their transposition to the category of appellants. Mr. Nawadwip Chandra Ghosh opposed this application on the ground that, as the period of limitation for filing appeal had expired before this application had been made, this application should not be allowed. In view of the provisions of Section 22, Limitation Act, I am not inclined to allow the objection of Mr. Ghosh. The application is allowed and the respondents 4 to 7 in M. A. 163/50 are transposed to the category of appellants.
13. In the result, the appeals are allowed with costs. There will be only one set of hearing fee as all the appeals were heard together.
Banerji, J.
14. I agree.