Patna High Court
Midnapur Zamindary Co. vs The Deputy Commissioner Of Manbhum on 13 August, 1917
Equivalent citations: 44IND. CAS.570, AIR 1917 PATNA 132
JUDGMENT Edward Chamier, C.J.
1. The question for decision in this appeal is whether an application for execution of a decree against the appellant presented by the respondent to the Court below on July 5th, 1916, is barred by limitation. The decree which was dated December 17th, 1909, and was for a large sum on account of arrears of tent, expressly provided that execution should not be taken out until the disposal of an appeal in another suit between the same parties then pending in the Calcutta High Court, the appellant in that case being the present respondent. The appeal to the High Court was dismissed oh April 28th, 1910. The present respondent then applied to the High Court for leave to appeal to the Privy Council and obtained leave in the ordinary course. On being required to give security for the costs of the present appellant who was the defendant in the rent suit, he gave as security the decree for rent which he held against his opponent. The bond by which the decree was made security for the costs of the respondent in the Privy Council recited the Course of the litigation and the fact that the High Court had allowed the rent decree to be given as security, and then it provided that if the present respondent paid to the extent of Rs. 4000 any costs payable by him to the present appellant under the order of His Majesty in Council, then" the document was to be void and the rent decree was to be released from the bond, bat in default of the costs being paid they were to be realised by sale of the rent-decree, the sale-proceeds to be applied in payment of such costs to the extent of Rs. 4,000, and until such costs were paid the decree was to remain charged therefor. The appeal to the Privy Council was dismissed with costs in February 1915, and the present application for execution of the rent decree was presented, as already stated, on July 5th, 1916. It is quite clear that the respondent is entitled to deduct the time which elapsed between the date of the decree and the disposal of the appeal in the other case by the Calcutta High Court. The question is whether he is entitled to deduct the time which elapsed between the disposal of the case by the Calcutta High Court and the date on which his present application for execution was filed.
2. The first contention is that the case is covered by Section 5 of the Limitation Act and that the respondent has established sufficient cause for not making the application within time. But one has only to read Section 5 to see that it has no application whatever to the present case. It applies only to an appeal or application for review of judgment or for leave to appeal or any other application to which the section may be made applicable by any enactment or rule for the time being in force. It is not suggested that there is any enactment or rule which makes this section applicable to the present application for execution. Section 5 has, therefore, no bearing on the case.
3. Next it was contended that the case was covered by Section 15 of the Limitation Act. There was no express injunction or order staying the execution of the decree, but it is suggested that what took place in the High Court, when the decree was made security for the costs in the other case, amounted to an order by the Court that execution should not proceed pending the disposal of the case by their Lordships of the Privy Council. It appears to me impossible to accept this contention. It is probable that neither side contemplated the possibility of the rent-decree becoming barred by limitation and that it never occurred to the Court or the parties that there was any necessity to stay execution of the rent-decree. If by the bond mentioned above the decree was transferred to the Registrar of the High Court, then the Registrar could have taken out execution. If the decree was not effectively transfer red by that document, then it appears that the respondent could have taken out execution himself. He could certainly have made an application to the Court setting out the facts and representing that the execution of the decree was about to become barred by limitation. If he had done so, suitable action would have been taken. Other security could have been substituted or arrangements made for the execution of the decree. In suits for partition of family property where the property to be divided includes bonds or decrees standing in the name of one or other of the parties, it is a common practice to apply to the Court to make arrangements for the bringing of suits on the bonds or for the execution of decrees proceedings on which are likely to be barred by limitation. The truth appears to be that the decree-holder overlooked the fact that his decree was becoming barred by limitation and he now seeks to make out that the Court prevented him from executing it. That, however, is not the case. I am unable to hold that the case is covered by Section 15 of the Limitation Act.
4. Lastly, it was contended that what took place in the Calcutta High Court amounted: to an agreement extending the period of limitation until the disposal of the case by the Privy Council. It was settled many years ago that limitation could not be extended even by express agreement, and it certainly could not be extended by an agreement to be implied from circumstances such as those with which we have to deal in the present case.
5. I am of opinion that this application for execution was barred by limitation and should have been dismissed. I would allow this appeal, set aside the order of the Court below and dismiss the application for execution with costs in both Courts.
Chapman, J.
6. I agree. Raja Ram Kanai Sahe wished to appeal to the Privy Council against a decree of the Calcutta High Court dismissing his suit for a declaration that a lease which had been given to the Midnapur Zamindary Co. was invalid. In order to be able to appeal the Raja had to give security for any costs which might be awarded to the Zamindary Co. by the Privy Council. He offered as security a decree for a considerable sum of rent which the Estate had obtained against the Zaminary Co. The security so offered was accepted by the Calcutta High Court and the Raja was thereby enabled to prosecute his appeal in the Privy Council. His appeal failed and costs were awarded against him. An application was then made by the Deputy Commissioner in his capacity as Manager of the estate for execution of his rent decree against the Zamindary Co. The application was on the face of it barred by limitation. In order to get ever the difficulty of limitation the two contentions which appear to me to have any substance appear to be these. First, that when the security offered by the Raja was accepted by the High Court that acceptance involved an order staying the execution, of the rent-decree and that Section V5 of the Limitation Act became then applicable. It is, however, conceded that there was in fact no order staying execution, nor can it be said that any such order was implied. The other alternative is to consider whether the fact of the acceptance of the rent decree by the High Court as security for costs resulted in such a relationship between the Deputy Commissioner and the Midnapur Zamindary Co. as would estop the Company from now pleading limitation or would extend the period of limitation in favour of the Deputy Commissioner. So far as estoppel is concerned, it is the duty of the Court to look into the question of limitation itself and it is not relieved from the duty of doing so by the fact that the parties or one of them had agreed not to plead limitation. So far as the question whether the period of limitation was extended as the result of such an agreement is concerned, it was decided by the Privy Council so far back as the year 1849 in the case of East India Company v. Oditchurn Paul 5 M.I.A. 43 at p. 70 : 1 Moo.P.C. 85 : 14 Jur. 253 : 1 Sar. P.C.J. 394 : 18 E.R. 810 : 13 E.R. 811 not without reluctance, that if to an action the Statute of Limitation is pleaded and proof is given that the action clearly commenced after the period of limitation had expired, the defendant, notwithstanding the existence of any agreement, is entitled to a verdict. There is a decision to the same effect by the Full Bench of the Calcutta High Court in the case of Kristo Komul Singh v. Huree Sirdar 13 W.R.F.B. 44 : 4 B.L.R.F.B. 101. The case no doubt is one of very considerable hardship to the decree-holder, because no doubt it was not obvious to him that it was his duty to keep the rent-decree alive nor indeed was it easy to say how that decree should be kept alive, whether by application by the decree-holder or by some sort of motion to the High Court, in order that the Registrar might make arrangements for some application to be made in the matter. I agree that the lower Court was wrong in holding that the application for execution was not barred by limitation. I desire to abstain from expressing any opinion as to whether anything could be made of the equities of the case in order to meet an application for execution by the other side of the decree of the Privy Council for costs.