Patna High Court
Kali Prasad Bajpayee And Ors. vs Bhagwat Prasad And Anr. on 4 April, 1980
Equivalent citations: AIR1980PAT280, 1981(29)BLJR86, AIR 1980 PATNA 280, (1980) BLJ 303 1980 BLJR 490, 1980 BLJR 490
JUDGMENT Hari Lal Agrawal, J.
1. This miscellaneous second appeal is by the judgment debtors against the order of the lower appellate court overruling their objections to the executability of the decree on the ground of limitation. They had succeeded in the trial court on this ground, but on appeal by the decree holders the court of appeal below has defeated them.
2. The relevant facts arc these. The decree holders obtained a decree on 23-5-1957 against the judgment debtors for a sum of a little over Rs. 3,500/- besides costs. They put the decree in execution for realising its fruits by filing successive applications but unfortunately they failed so far to reap the fruits of the decree. When the decree holders had filed Execution Case No. 194 of 1960 and proceeded against certain properties a claim case under Order 21 Rule 58 of the Code of Civil Procedure was filed by one Bishwanath Prasad. The executing court allowed the claim case by its order dated 12-12- 1960. The decree holders, perhaps, being unable to find out any other mode of execution of the decree, did not take any further step in execution proceeding, which was dismissed for default on 16-1- 1961. They, however, filed a title suit under Rule 63 of Order 21 of the Code, against the aforesaid claimant Bishwanath Prasad, which was ultimately decreed in his (their?) favour on 6-8-1963. Bishwanath Prasad, however, challenged the decree in an appeal which was also ultimately dismissed on 21-3-1970. After the dismissal of the appeal the decree-holders filed a fresh execution application which was numbered as Execution Case No. 158 of 1970. This, however, was dismissed for default on 9-12-1971 and thereafter a fresh Execution Case No. 7 of 1972 was filed on 18-1-1972. The judgment debtors filed an application under Section 47 of the Code objecting to the execution of the decree on the ground of limitation. Their plea was that under Article 136 of the Limitation Act, which provides a period of three years from the date when the right to apply accrues, the limitation would start running from 6-8-1963, i. e., the date of the decision of the title suit in favour of the decree holders, and therefore, the present application was barred by limitation. The stand of the decree holders, on the other hand, was that the decree of the trial court was under appeal and they remained under a bona fide belief that the decree could not be executed. The executing court accepted the plea of the judgment debtors and held that the execution application was barred by limitation. On appeal by the decree holders, the lower appellate court took the view that the decree holders could not have levied any execution pending the decision of the appellate court. Undisputedly no stay order was granted by the appellate court and, therefore, the decree holders would have proceeded with the execution case. Nonetheless the lower appellate court took the view that the title suit filed by the decree holders under Order 21 Rule 63 of the Code would be deemed to be pending until the disposal of the title appeal and the execution proceeding would be deemed to be in abeyance till that time. It accordingly held that the decree holders were prevented from proceeding with the execution case by fraudulent act of the judgment debtors in view of the finding in the title suit that the claim of Bishwanath Prasad was based on a sham transaction with a view to defeat the claim of the decree holders.
3. Learned counsel appearing for the appellants contended that examining the question of limitation from any angle, the execution application filed on 18-1-1972 cannot be saved from the bar of limitation. The decree which is dated 23-5-1957, according to Section 48 of the Code before its repeal in the year 1963, could be executed within 12 years from that date. Apparently, therefore, the execution filed beyond 24-5-1969, would be barred by limitation. Sub-section (2) of Section 48 of the Code, however, provided an exception to the limitation of 12 years and that was where the judgment debtor has by fraud or farce, prevented the execution of the decree at sometime within 12 years immediately before the date of the application. Section 48 was repealed by Section 28 of the new Limitation Act with effect from 1-1-1964 and Article 136 of the Limitation Act of 1963 substantially reproduces the provisions of the repealed Section 48 (1), but Article 136 has not incorporated the analogous provisions contained in Sub-section (2) of Section 48.
It may also be mentioned that in the new Limitation Act there is now no provision analogous to Clause (5) of Article 182 of the old Act which provided a shorter period of limitation for keeping alive the decree by successive applications for execution or to take step in aid of execution made within 3 years from the final order on the immediately previous execution. This provision being responsible for a vast amount of confusion and unnecessary litigation, has been removed and the law has been now considerably simplified under the present Article as compared with the corresponding Article 182 of the old Act.
4. Counsel for the decree holder-respondents, however, has placed reliance upon a Bench decision of this court in Banarsi Prasad Chaudhury v. Kirtyanand Singh Bahadur (AIR 1934 Pat 532) wherein a very much similar circumstance of the success of the claimant in his application under Order 21 Rule 58 of the Code, the decree holder had to file a suit under Rule 63 which ended in favour of the decree holder but the decision was given after the expiry of the period of 12 years from the date of the appeal under execution on a fresh execution application being levied, it was held by this Court that the decree holder must be deemed to have been prevented from proceeding with the execution of the decree and the case was covered by Section 48 (2) (a) noticed earlier.
5. It is, no doubt true that the question whether an application for execution is a fresh application or only for continuation is of great importance under Article 136 also, although it does not provide for any such exemption or extension, notwithstanding the far reaching legislative changes introduced by the Limitation Act as, in that event, the fiction of continuation of a pending application would entitle a decree holder to levy an execution application even beyond 12 years. The argument of learned counsel for the decree holders, no doubt, finds full support from the case of Banarsi Prasad Chaudhury (supra).
In that case it was clearly held that where a decree holder has to institute a suit for a declaration of his right to execute his decree against the property, and after the suit is decreed to file a fresh application for execution, that application must be treated as a continuation of the previous application, because the previous application could not be proceeded with on account of a bar having been created by the allowance of the claim. The learned judges referred to the case of Rudra Narain Guria v. Pachu Maity ((1896) ILR 23 Cal 437). In both the cases the pending execution cases were dismissed as the decree holders were not in a position to lay their hands upon any other property. On the basis of the above authorities, there would have been no difficulty in the way of the decree holders to proceed with the execution case had they applied for the execution after their success in the title suit, because in spite of the change in law I do not find any difficulty in applying the fiction of continuation of the pending application and to import the principles contained in Sub-section (2) of Section 48 in the scheme of Article 136 of the Limitation Act, but in my view, a decree-holder cannot be permitted to sit tight over the matter indefinitely. And once the temporary bar to the execution proceedings had come to an end, the decree holders were obliged to apply for the prosecution of the application. The filing of an appeal by the claimant was of no consequence and did not impose any bar in the way of the decree holders inasmuch as no stay order was passed against them. The provision contained in Rule 5 of Order 41 of the Code of Civil Procedure also in this connection may be noticed. It says that an appeal shall not operate as stay of proceedings under a decree or order appealed from, except so far as the appellate court may order, nor the execution of a decree has to be stayed by reason only of an appeal having been preferred from the decree.
As already said earlier, the spirit of Sub-section (2) of Section 48 only entitled the court to apply the fiction of continuation on the ground of the temporary bar. The decree holders, therefore, although have been harassed by the judgment debtors in a protracted proceeding, cannot overcome the question of limitation.
6. I would accordingly hold that the execution application in question filed by the decree holders was barred by the law of limitation. The judgment and order of the court of appeal below are, therefore, set aside and the order of the executing court is restored. The appeal is allowed, but in the circumstances I shall make no order as to costs.
M.P. Varma, J.
7. I agree.