Patna High Court
Darogi Mandal And Ors. vs Kameshwar Singh Bahadur on 31 August, 1956
Equivalent citations: AIR1957PAT299, 1957(5)BLJR140, AIR 1957 PATNA 299, ILR 35 PAT 907
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Raj Kishore Prasad, J.
1. This is a Letters Patent Appeal against the decision of Mr. Justice Rati Kant Choudhary, in an appeal, arising out of an objection, filed by the judgment-debtors appellants under Section 47 of the Code of Civil Procedure, in an execution case.
2. The point for determination in this appeal is a question of limitation, which involves the interpretation of Clause (5) of Article 182 of the Indian Limitation Act.
3. The decree-holder respondent obtained a decree on the 13th December, 1934, against one Lachhman Mandal, father of the present judgment-debtors, appellants Nos. 1 to 4. The decree was executed twice, but the execution proved infructuous. The third execution, therefore, being Execution No. 244 of 1943, was taken out on the 14th May, 1943, against the original judgment-debtor, Lachhman Mandal. This execution was registered, and the executing court issued a notice on this application under Order XXI, Rule 22 of the Code of Civil Procedure against Lachhman Mandal, and, a service report was filed showing service of notice on him, as will appear from the order dated the 21st of June, 1943, of that execution case. Thereafter, the decree-holder was asked to take further steps, but he did not take any step, and, therefore, the execution was dismissed for default on the 8th July 1943. The present execution, out of which the present appeal arises, was filed by the respondent, against the sons and other heirs of the original judgment-debtor, Lachhman Mandal, on the 22nd of July, 1946, as Lachhman Mandal died on the 13th July, 1942.
4. The question for decision, therefore, is whether the last application for execution made on the 14th of May, 1943, against Lachhman Mandal, who had died earlier on the 13th July, 1942, was in accordance with law within the meaning of Clause (5) of Article 182 of the Limitation Act so as to amount to a step-in-aid of an execution sufficient to prevent the present application for execution being time barred.
5. The first court held that the previous execution having been filed against a dead man was no execution in the eye of law, and, as such, the present execution was barred by limitation. On appeal by the decree-holder respondent, the first appellate court held that the intention of the decree-holder "was not only not bona fide, but that it was a mala fide one", in taking out the execution against a dead person, &, therefore, the present execution was barred by limitation.
6. On a second appeal to this Court, Mr. Justice Choudhary held that the present application for execution, having been made within three years from the date of the final order, was within time, and in that view of the matter he reversed the orders of the courts below.
7. In the present appeal, Mr. S.C. Mazumdar, appearing for the appellants, has contended that the application of the 14th May, 1943, being against a dead person was not in accordance with law, and, therefore, it cannot amount even to a step-in-aid of execution within the meaning of Article 182 (5) of the Act.
8. In reply Mr. S.P. Srivastava, appearing for the decree-holder respondent, supported the view taken by Choudhary, J.
9. Article 182 (5) of the First Schedule of the Indian Limitation Act, 1908 (Act IX of 1908), hereinafter referred to as "the Act" is in these terms:
- "182 For the execution of a decree or order of any Civil Court not provided for by Article 183 or by section 48 of the Code of Civil Procedure, 1908 (V of 1908).
* *
5. (where the applicationnext hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order, or * * * Explanation II "ProperCourt" means the Court whose duty it is to execute the decree or order."
10. Article 182 of the present Act corresponds to Article 179 of Act XV of 1877. The words "the date of the final order passed on an application made" in Clause (5) above were substituted by the Indian Limitation (Second Amendment) Act, 1927 (IX of 1927), in place of "the date of applying", which occurred previously in Clause (5) of Article 182 of the Act By this Amendment Act of 1927, the old Clause (6) of Article 182 was also deleted. The old Clause (6) was as follows:
"(Where the notice next hereinafter mentioned has been issued) the date of issue of notice to the person against whom execution is applied for to show cause why the decree should not be executed against him, when the issue of such a notice is required by the Code of Civil Procedure, 1908".
11. Mr. Justice Choudhary held that the decisions of this Court, namely, Gobardhan Das Dwarka Prasad v. Satish Chandra Rai, ILR 1 Pat 609: (AIR 1922 Pat 597)(A), and, Jogendra Prasad v. Mangal Prasad, 7 Pat LT 330: (AIR 1926 Pat 160) (B), on old Clause (6) of Article 182, were applicable to a case governed by the amended Clause (5) of Article 182, with this difference that the starting point for fresh limitation will be the date of, the final order passed on an application for issue of a notice under Order XXI, Rule 22 of the Code of Civil Procedure, instead of the date on which the order for issue of such notice was passed, and, therefore, his Lordship held that the present application was within time, because the previous application, on which a notice under Order XXI, Rule 22 of the Civil Procedure Code was issued, was an application to take some step-in-aid of execution of the decree under execution. - In my opinion, the view, that the decisions On old Clause (6) are applicable to the present Clause (5) of Article 182 of the Act, is wrong, because it is against the true meaning of the present Clause (5) of Article 182 of the Act, as I shall presently show.
12. It is well settled that the application made to the proper court, either for execution, or to take some step-in-aid of execution of the decree or order must have been made "in accordance with law". The phrase "in accordance with law" is adjectival not only to the words "to the proper court for execution", but also to the words "to take some step-in-aid of execution". The ordinary syntax would treat the phrase as adjectival to both.
13. It is equally well established that under Article 182 (5), it is sufficient to show that an application was made in accordance with law to the proper court for execution, or to take some steps-in-aid of execution; and it is not further necessary to show that such an application had been made with a bona fide intention to execute the decree, or to take some step, and not merely to keep the decree alive. As observed by Sir Lancelot Sanderson, in the Privy Council decision in Khalilur-Rahman v. Collector of Etah, AIR 1934 PC 14: 61 Ind App 62 (C):
"To hold that it was necessary for the Court to be satisfied that the said applications were made bona fide and that the decree-holder had the intention of proceeding to execution in pursuance of said applications would be to import words into the terms of the article which are not to be found therein and would necessitate the Court embarking upon the difficult and in some oases impossible task of finding the motive of the decree-holder in making the applications".
14. This decision of the Privy Council was followed by the Bombay High Court in Awappa Tatoba v. Datto Krishna, AIR 1948 Bom 185 (D). The question of bona fide, therefore, is immaterial for the purpose of Article 182 (5) of the Act.
15. Cases decided on the old Clause (6) of Article 182 of the Act, cannot have any application to, and, cannot afford any guidance in, construing the present Clause (5) of Article 182 of the Act, for the simple reason that in the old Clause (6), the date of issue of notice under Order XXI, Rule 22, Code of Civil Procedure, where the issue of such a notice was required by the Civil Procedure Code, and, where such a notice had been issued, was the starting point of limitation for the purpose of filing a fresh application for execution of a decree or order. Rut, under the present Clause (5) of Article 182 of the Act, the result of the application, that is, the final order passed on an application for execution, or to take some step in aid of execution of the decree or order, made, in accordance with law, to the proper Court, became the material time. Under the present Clause (5) of Article 182, therefore, the final order passed on the application, and not the issue of notice under Order XXI, Rule 22, Code of Civil Procedure, even where such a notice had been issued, was contemplated as being sufficient to save limitation. In the present case, therefore, all that was necessary for the decree-holder to show was that the application of the 14th May, 1943, was made in accordance with law to the proper Court for execution, or to take some step-in-aid in execution of the decree.
16. The first question, therefore, for our determination is, was the application made by the decree-holder on the 14th May, 1953, in accordance with law"? It is not disputed that that application was made to the proper court.
17. The words "in accordance with law" mean in accordance with law relating to the execution of the decree, (vide Govind Prasad v. Pawankumar, AIR 1943 PC 98: 70 Ind App 83 (E)). An application for execution would be in accordance with law, if it is in accordance with the rules and procedure prescribed therefor, and, it does not cease to be such an application, even though subsequently on an adjudication on the merits of the case, the Court rejects the relief for which it prays. The fact that subsequent enquiry may show that the execution application must fail is no reason for holding that it is not in accordance with law, when on the face of it, it is so.
Where, therefore, an application for execution of a decree is made by a person, who, at the time of making it, was on the face of the decree, the only person entitled to execute it, and, against a person, who, at the time of making the application, was on the face of the decree, the only person against whom it could be executed, the application does not cease to be an application in accordance with law, merely because it is afterwards decided, or discovered, or it turns out, that that person had no title to execute the decree, or, that the judgment-debtor named in the execution and in the decree had died before the execution had been taken out.
18. In the present case, it is not denied that the application was presented by the party entitled to execute the decree in order to obtain the execution, but it is contended that, as the sole judgment-debtor was dead at the time, and still he was named as the party against whom the execution was sought, the application must be treated a nullity, and, consequently, the present application held to be time barred. The rule, that when a suit is filed against the dead person, it is nullity, does not apply to execution proceedings. (See Abdus Sattar v. Mohini Mohan Das, AIR 1933 Cal 684: 37 Cal WN 679 (F), and Balabhadra Sadangi v. Radha Krishna Patnaik, AIR 1956 Orissa 142 (G)).
In this case, the application, made on the 14th May, 1943, was made in accordance with the provisions of the Code of Civil Procedure, and, therefore, in accordance with the law applicable thereto: it was made to the proper court, and it was made within time. Where, therefore, there has been in fact an application for execution made by the party entitled to make it, the mere fact of a mistake having been made in giving the particulars required by Order XXI, Rule 11, Clause (2), Sub-clause (i) of the Code of Civil Procedure cannot have the effect of rendering the application a nullity. Sub-clause (i) of Clause (2) of Rule 11 of Order XXI of the Code of Civil Procedure requires the name of the person against whom execution of the decree is sought to be mentioned.
In the present case, the name of the original judgment-debtor was mentioned obviously in ignorance of his death. Order XXI, Rule 17, Code of Civil Procedure, provides that on receiving an application for the execution of a decree as provided by Rule 11, Sub-rule (2) the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with; and, if they have not been complied with, the Court may reject the application, or, may allow the defect to be remedied then and there, or within a time to be fixed by it.
Sub-rule 4 of Rule 17 of Order XXI, Civil Procedure Code, provides that when the application is admitted, the Court shall enter in the proper register a note of the application, and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application. In the present case, the application made to the executing court on the 14th May, 1943, was admitted, and the Court ordered execution of the decree on the said application.
A notice, accordingly, under Order XXI, Rule 22, Code of Civil Procedure, was issued on the judgment-debtor mentioned in the application. The defect in the form of the execution application in mentioning the name o the deceased judgment-debtor in ignorance of his death, was, not material, in that, it could be easily remedied under Order XXI, Rule 17 (1) of the Code. When, therefore, the application was duly registered under Order XXI, Rule 17 (4) of the Code, and the Court ordered execution of the decree thereon and took steps on it, it must be held to be "in accordance with law''. In these circumstances, it cannot be said that the application made by the decree-holder On the 14th May 1943, was not "in accordance with law".
19. The next question is, if the application was in accordance with law, could it be considered to be an application for execution, or, to take a step-in-aid of the execution.
20. The question, therefore, arises, if the application, which was in accordance with law, could not be considered to be an application for execution, in view of the fact that the judgment-debtor was dead, could this application be considered to be a step-in-aid of the execution.
21. If the application for execution of a decree is made against a deceased judgment-debtor in ignorance of his death, though that application cannot be acted upon, still it is an application in aid' of execution within, the meaning of Article 182 (5) of the Act, which saves the execution of the decree from being time barred. It would be unreasonable to expect the decree-holder to keep track of every event happening in the family of the judgment-debtor. He is not expected that he would keep himself in touch with the family of the judgment-debtor and know the condition of his health, specially when both do not reside in the same village.
22. In the present case, after the service of notice under Order XXI, Rule 22, Code of Civil Procedure when the decree-holder came to know of the death of the judgment-debtor, he did not take any step in the matter, and, allowed the application to be dismissed for default, obviously because he had to ascertain the names of the legal representatives of the deceased judgment-debtor, and, thereafter to take steps for substitution of those legal representatives, in the same execution case, or, to take out a fresh execution against the legal representatives of the deceased judgment-debtor.
But it is essential that the step contemplated should be in furtherance of the execution of the decree. Unless, therefore, the step asked for advances, or furthers execution o the decree to some extent, it cannot be held to be a step-in-aid of execution. The question whether a particular proceeding is, or is not a step-in-aid of execution, depends largely upon the circumstances of the particular case. If the facts show that the proceeding has the effect of facilitating, or advancing the execution, to any extent, or removing some obstacle, from the way of execution, it may well be regarded as a step-in-aid of execution.
23. In the present case, in the circumstances mentioned above, it cannot be said that the application for execution made by the decree-holder was not in furtherance of the execution of the decree, specially when the execution court admitted the application and ordered execution of the decree, to proceed, and, the first step, which it took, was to issue a notice under Order XXI, Rule 22 of the Code of Civil Procedure. In my opinion, therefore, the application, made by the decree-holder, which was in accordance with law, but against a dead judgment-debtor, must be taken to be a step-in-aid of the execution, and, therefore, it will save the pre-, sent application being barred by limitation.
There are several decisions of the different High Courts in India to the effect that an application for execution presented against a deceased judgment-debtor owing to the ignorance of the death of the judgment-debtor, though it could not be acted upon by the executing court, was, an effective step-in-aid of execution, which has the effect of saving the decree from being barred. (See Samia Pillai v. Chockalinga Chettiar, ILR 17 Mad 76 (H), Bipin Behari Mitter v. Bibi Zohra, ILR 35 Cal 1047 (I); Sri Lal Sri Subramania Desika Ghanasambanda Pandara Sannadhi v. Rangaswami Chettiar, AIR 1935 Mad 161 (J); Maula Baksh v. Mohammad Ikram, AIR 1934 Lah 55 (K); Chinnan Chettiar v. The Estate Manager, Sivaganga Estate, AIR 1949 Mad 348(L); AIR 1956 Orissa 142(G); Sheo Govind Ram v. Mt. Kishunbansi Kuer, AIR 1932 Pat 222: ILR 11 Pat 546 (M) and Puran Mall v. Mt. Dilwa, AIR 1924 Pat 333 (N).
24. The question whether an application for execution made is in accordance with law or not, as I have said earlier, has to be decided on the facts and circumstances of each particular case. No cut and dry formula can be laid down for general application.
25. My concluded opinion, therefore, in the present case, is that the application for execution made by the decree-holder on the 14th May, 1943, filed against the deceased judgment-debtor, in ignorance of his death, having been admitted under Order XXI, Rule 17 (4) of the Code, and, the execution court having ordered execution of the decree and taken steps thereon by issuing a notice under Order XXI, Rule 22, Code of Civil Procedure, although it could not he acted upon was nevertheless an application in accordance with law to take a step in-aid of the execution of the decree within Article 182 (5) of the Act, and, therefore, the present execution was not time barred.
26. For the reasons given above, I hold that the decision of Mr. Justice Choudhary is correct, although the reasons given by me for reaching the same conclusion to which His Lordship has reached are different.
27. In the result, the appeal fails, and is dismissed with costs.
Ramaswami, C.J.
28. I agree.