Patna High Court
Firm Mohar Lal Sahu And Anr. vs Har Krishna Bhagat And Ors. on 14 September, 1949
Equivalent citations: AIR1951PAT339, AIR 1951 PATNA 339
JUDGMENT Ramaswami, J.
1. The sole question in this appeal is whether the execution of a decree made by the Calcutta High Court on the original side is barred by Article 183, Schedule I, Limitation Act.
2. The decree was granted by the Calcutta High Court on 12-7-1929. The present application for execution was made on 1-3-1946, in the Bhagalpur Court after a lapse of twelve years. But On 3-3-1944, the decree-holder had applied to the Calcutta High Court for leave under Order 21 Rule 50, Civil P. C., to proceed against certain partners of the firm. On 3-3-1944, the High Court granted the leave. On behalf of the appellants the argument is addressed that the order of the Calcutta High Court "revived" the decree within the meaning of Article 183, Limitation Act.
2a. The question, therefore, must be determined on the words of Article 183, as a matter of statutory construction.
3. There is no definition of the term "revivor" in the Limitation Act, but the historical review contained in the judgments in the cases of Ashootosh Datt v. Doorga Churn, 6 cal. 504: (8 C. L. R. 23), Futteh Narain v. Chundrabati Chaudhrain, 20 Cal. 551 and Jogendra Chandra Roy v. Shyam Das, 36 Cal. 543 : (1 I. C. 168) shows beyond doubt that the procedure for revivor of judgment on the original side of the Calcutta High Court was substantially analogous to the writ of scire facias under the common law. That procedure was subsequently embodied in Sections 248 and 243, Civil P. C., 1882, and was reproduced as Order 21, Rules 22 and 23 of the Code of 1908. Under these provisions, where an application for execution is made, a notice is required to be issued to the person against whom execution is applied for, if more than one year has elapsed from the date of the decree. The notice calls upon him to show cause why the decree should not be execrated against him. If he does not appear or dots not show cause to the satisfaction of the Court, the Court orders the decree to be executed, The order for execution thus made operates as a revivor, but the mere issue of the notice does not by itself produce that consequence Monohar Dass v. Futtah Chand, 30 Cal. 979: (7 C. W. N. 793). The true rule has been enunciated in Kamini Debi v. Agore Nath, 11 C. L. J. 91; (4 I. C. 402), namely, that to constitute revivor of a decree there must be, expressly or by implication, a determination that the decree is still capable of execution and the decree holder is entitled to enforce it.
4. In Chutterput Singh v. Sait Sumari Mall, 43 Cal. 903: (A. I. R. (3) 1916 Ca1. 488 F. B.) a Full Bench of the Calcutta High Court decided that an order for transmission of a decree was not an order on an application foe execution; it was a proceeding taken with a view to further action by way of execution elsewhere on which action, unless previously determined, the question of the right to execute the decree is decided. Consequently the Full Bench decided that the order made upon the application did not operate as a reviver within the meaning of Article 183, Limitation Act.
5. This cage was expressly approved by the Judicial Committee in Banku Behari Chatterji v. Naraindas Dutt, 55 Cal. 500, in which the High Court had ordered a decree to be transmitted for execution to a district Court. Before the order was passed, the judgment-debtor appeared in the High Court and upon his petition, the decree had been varied with his consent. Even so, the Judicial Committee held that the order of the High Court did not operate to revive the decree so as to extend the time within which, under the Limitation Act, 1908, an application to enforce it must be made.
6. Reference should be made to Muthiar Chettiar v. Chidambaran Chetti, 55 Cal. 578 : (A. I. R. (15) 1928 Cal. 686) in which there was an adjudication in the execution stage of the question whether one of the judgment-debtors was a partner in the defendant firm and, as such whether the decree was validly passed. An application for execution was made by the appellant as assignee of the decree. The application was served on Subramania who obtained a rule on motion calling upon the appellant to show cause why the decree should not be set aside and execution stayed. On 17-8-1923, it was ordered that an issue be tried as to whether Subramania was a partner in the defendant firm and that all "further proceedings in the execution should be stayed until the trial of the said issue." Apparently the validity of the decree depended upon this issue which was determined against him by an order of Thornhill J. on 20-5-1924, which declared that Subramania was a partner of the said firm and his application to set aside decree was dismissed. Rankin, C. J. and Mitter J. held that even so the adjudication by the High Court could in no sense be regarded as a determination by implication that the decree was capable of execution or that the decree-holder had a right to execute the decree, and that such an order could not revive the decree within the meaning of Article 183, Limitation Act, 1908.
7. In support of appellant the learned Advocate-General relied upon Bhagwan Manaji v. Hiraji Premaji, A. I. R. (19) 1932 Bom. 516: (140 I. C. 519) in which an application under Order 21, Rule 50, was held to be an application for execution of the decree obtained against the partnership. But the case must be distinguished, for the learned Judges were construing not Article 183 but Article 182, Limitation Act.
8. On the contrary, in Harnarain v. Dayabai Hira Chand, 19 Pat. 909: (A.I.R. (27) 1940 pat. 596) a Division Bench of this Court held that the proceedings for obtaining leave to execute the decree against a partner of the firm under Order 21, Rule 50 (2) did not operate as a revivor within the meaning of Act, 183, Limitation Act. In 1924 the decree-holder obtained decree against the judgment-debtor firm in the Bombay High Court. In 1938, the decree was transferred to the Court of the Subordinate Judge at Motihari and leave was obtained under Order 21, Rule 50 (2), Civil P. C., 1908, to execute the decree against Har Narain a partner of the judgment-debtor firm. But the execution case was dismissed for default. In 1937 another application for execution was filed against Harnarain, but the Division Bench held that the proceedings for obtaining leave to execute the decree would not operate as revivor and the execution was time-barred.
9. Upon this review of these authorities, it is manifest that in the present case there has been no revivor of the decree within the meaning of Article 183, Limitation Act.
10. In my opinion, the order of the Subordinate Judge is correct and this appeal must be dismissed with costs.
Meredith, J.
11. I agree.