Patna High Court
Badri Narayan Singh And Ors. vs Kalyan Prasad Shroff And Ors. on 24 April, 1956
Equivalent citations: AIR1956PAT522, AIR 1956 PATNA 522
JUDGMENT Misra, J.
1. This appeal by the judgment-debtors arises out of a miscellaneous case started at their instance. The decree-holders respondents levied execution in respect of the balance left unpaid under an instalment decree for a sum of Rs. 17,950/-, passest in their favour in the Court of the learned Sub-ordinate Judge, Deoghar, on foot of a petition of compromise dated 19-8-1937. The amount decreed was to be paid in Six instalments the details where-of were duly set out in the petition of compromise.
It was stated in the petition for execution filed by the decree-holders that the original judgment-debtor, Bara Kumar Bhaiya Jagdish Pd. Singh, paid up the instalments in due course leaving a balance of Rs. 4,758/- only when he died. The decree-holders, accordingly, had to take out execution for realisation of the above amount against his heirs. This gave rise to Execution Case No. 11 of 1944. The judgment-debtors objected to the execution on the ground of limitation, which led to the miscellaneous case out of which this appeal has arisen. The learned Subordinate Judge overruled the objection of the judgment-debtors, who have come up in appeal to this Court.
2. Learned counsel for the appellants contended that the learned Subordinate Judge should have held that the execution of the decree was barred by limitation when the petition for execution was filed. It is not denied that it was filed on 14-4-1944, and it was received by the Second Officer, Deoghar, and his endorsement thereon is marked Ex. A. The proper Court where the petition for execution should, however, have been filed was the Court of the Sub-divisional Officer, Deoghar, who is vested with the powers of a Subordinate Judge, in so far as the district of Santhal Parganas is concerned, under the Santhal Parganas Justice Regulation, 1893 (5 of 1893). He was out on tour and came back to Deoghar at 10-30 A.M. on 16th of April, after the court-hours, so that the petition was put up before him on 17-4-1944, when he endorsed it as duly presented, vide Ex. B. The due date for payment of the sixth instalment being 14-4-1941, the execution would be clearly time-barred as being beyond three years from the due date, if the filing of the petition for execution before the Second Officer, Deoghar, on 14-4-1944, is found in law not to be a valid presentation.
Mr. J.C. Sinha contended that the Second Officer not having been vested with the powers of a Subordinate Judge, the proper course for the decree-holders was to file the petition before the District Judge of Santhal Parganas, if the Sub-divisional Officer-Subordinate Judge was not available at Deoghar. He was the only Court empowered to exercise the jurisdiction of a Subordinate Judge and as such in his absence the decree-holders should have filed the execution petition in the Court of the District Judge in order to save limitation.
The decree-holders having failed to present their petition for execution in proper Court in time, the mere fact that it was put on 17-4-1944, should not have been held to be a proper presentation so as to save the bar of limitation. He referred in this connection to the Bengal, Agra and Assam Civil Courts Act, 1887 (Act 12 of 1887), Sections 10, 11 (4) and 14. Section 10 deals with the temporary charge of District Court by an officer in the event of death, resignation or removal of the District Judge, or of his being incapacitated by illness or otherwise for the performance of his duties, or of his absence from the place at which his Court is held.
The officer whose absence from the station is relevant for the decision of the present case is not a District Judge, and as such it is unnecessary to refer to this section. Section 11 deals with a similar contingency in the matter of a Subordinate Judge, and as such is relevant for the present case. Clause (1) of Section 11 runs thus:
"In the event of the death, resignation or removal of a Subordinate Judge, or of his being incapacitated by illness or otherwise for the performance of his duties, or of his absence from the place at which his Court is held, the District Judge may transfer all or any of the proceedings pending in the Court of the Subordinate Judge either to his own Court or to any Court under his administrative control competent to dispose of them."
Clause (4) of this section is in these terms:
"For the purposes of proceedings which are not pending in the Court of the Subordinate Judge on the occurrence of an event referred to in Sub-section (1), and with respect to which that Court has exclusive jurisdiction, the District Judge may exercise all or any of the jurisdiction of that Court."
It was accordingly contended that the presentation of an application for execution which was not actually pending in the Court of the Subordinate Judge, and yet with respect to which the Court had exclusive jurisdiction, the proper course to adopt was to file the application before the District Judge of Santhal Parganas, as he alone could exercise all or any of the jurisdiction of the Court of the Subordinate Judge on account of his absence from station on tour.
It was further contended that in terms of Section 14 of the Act it was only the State Government which by notification in the official gazette could fix or alter the place or places at which any Civil Court under the Act could be held. In the circumstances, the application of the decree-holders could not be entertained by the Subordinate Judge at any place other than Deoghar, and due to his absence from the station the District Judge alone was competent to receive such applications. He referred also to the General Rules and Circular Orders (Civil) Vol. I, issued by this Court, at page 6, Rule 10, which runs thus:
"An order appointing an officer to receive plaints under Order 4, Rule 1, Civil P. C. must be in writing."
He also referred to Order 4, Rule 1 and Order 21, Rule 10, Civil P. C. Order 4, Rule 1 (1) deals with the presentation of a plaint and provides that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. Order 21, Rule 10 provides:
"Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof."
The point made with reference to the above provisions of the Code of Civil Procedure, General Rules and Circular Orders (Civil) Vol. I, and Act 12 of 1887 was that the Second Officer who received the execution petition on 14-4-1944, was not the proper officer, as he was not authorised to receive the petition; such authorisation, if any, must be in writing in terms of Rule 10 of the General Rules and Circular Orders (Civil) Vol. 1, referred to above, as that rule makes it imperative that an officer appointed to receive plaints under Order 4, Rule 1, Civil P. C., must be empowered in writing to receive plaints.
The same analogy should apply to the case of an execution petition as well. In view of this contention, it must be held that the argument of Mr. J.C. Sinha, as he originally advanced it that the application must be filed before the Subordinate Judge himself or before the District Judge, is apparently without substance.
3. The only point for consideration is whether the Second Officer of Deoghar could be said to be the proper officer to receive the execution petition in the absence of the Sub-divisional Officer who exercised the powers of a Subordinate Judge, and in that capacity alone would receive the applications for execution on account of the peculiar provisions of the Santhal Parganas Justice Regulation.
Mr. J.C. Sinha contended that either it should have been established that the Second Officer was a proper officer to receive the execution petition in the absence of the Sub-divisional Officer or, in the alternative, the application should have been filed in the Court of the District Judge.
It is clear that Deoghar is at a considerable distance from Dumka where the District Judge has his Court located, and accordingly the decree-holders would have to run a long distance to file their application in that Court. In my opinion, however, it is unnecessary to consider the effect of not filing of the present execution petition in the Court of the District Judge, because the matter can be disposed of on the shorter ground of the authority of the Second Officer to entertain the application for execution.
The learned Subordinate Judge held that he had such authority on the evidence of opposite party witness 2, Bijoy Kumar Bangia, who said that he was a clerk in Deoghar S.D.O.'s Court since October, 1939. He said further:
"The practice is that Second Officer receives plaints and execution petition in absence of S.D.O: on tour and sends them to the S.D.O. on his return."
Further, in cross-examination, he said:
"On every occasion the S.D.O. goes on tour he leaves behind an order that in his absence the Second Officer will do all his work.
"I cannot say if the S.D.O. left such order on 14-4-1944. There was only one Sub Judge in 1944. He was the S.D.O."
The learned Subordinate Judge considered the effect of his statement relating to the practice prevailing in that Court as also the fact that Mr. L.L. Sinha, the Second Officer, having signed for the S.D.O. Sub-Judge indicated that he was authorised to do so.
Mr. J.C. Sinha contended that in terms of Rule 10 of the General Rules and Circular Orders, it was not enough for the learned Subordinate Judge to hold that there was such a practice, but authority in writing should have been produced on behalf of the decree-holders to show that the Second Officer was authorised to receive plaints and petitions for execution in the absence of the S.D.O. Sub-Judge at Deoghar. It appears, however, that no cross-examination was directed along the line urged by Mr. J. C. Sinha in this Court. When Bijoy Kumar Bangia deposed that there was standing practice that the Second Officer received plaints and execution petitions in the absence of the S.D.O. Sub-Judge on tour, evidently, it followed that it was done in due course.
If the judgment-debtors felt that there was no proper authority granted to the Second Officer, this witness should have been cross-examined specifically along the line as to whether there was any such authority granted in writing. If that were so, the decree-holders might be in a better position to adduce clear evidence on the point. This was not done. No doubt, the witness deposed that on every occasion when the Sub-divisional Officer went on tour, he left behind an order that in his absence the Second Officer would do all his work, but he was not asked a further question as to whether the order used to be in writing or not.
In the result, the specific point made by Mr. J.C. Sinha on this ground cannot be accepted as a valid ground for holding that the Second Officer had no authority to receive execution applications in the absence of the Sub-divisional Officer. It is also noticeable that although Rule 10 of the General Rules and Circular Orders provides for an order in writing appointing an officer to receive plaints under Order 4, Rule 1, Civil P. C., nothing has been brought to our notice to show that there is any such provision with regard to the execution petitions as well. The argument raised was that execution petitions must be treated on the same footing as the plaint.
It is true that normally it should be so but, on the technical point, it must be held that there is no such clear provision with regard to the authority in writing in respect of entertaining an application in execution. In the result, the contention of Mr. J.O. Sinha must fail, and the view of the learned Subordinate Judge overruling the objection on the ground that the Second Officer had no authority must be upheld as correct. In that view of the matter, the decision relied upon by Mr. J.O. Sinha in the case of 'Bhubaneshwari Dasi v. Pulin Krista Rai', 14 Pat 342 : (AIR 1935 Pat 39) (A) is not relevant, as it deals with a different point altogether, namely, the disposal of a suit valued at more than Rs. 1,000/- at a place different from the headquarters.
4. Mr. R.S. Chatterjij for the respondents, urged a further contention on the authority of the cases noted below that if the learned S.D.O. Sub-Judge of Deoghar was absent on 14-4-1944, when the application was presented, the application should have been held to be filed in time on 17-4-1944, when he received it and made the endorsement because on these days the Court must be held to be as closed.
The cases relied upon are 'Nur Muhammad v. Ghulaman', AIR 1934 Lah 622 (B); 'Mt. Hirania v. Sm. Ram Piari', AIR 1950 All 367 (C); 'Khirode" Chandra Das v. Ramani Mohan', AIR 1937 Cal 454 (D) and 'K. P. Sinha v. Jatindra Nath Biswas', 41 Cal WN 492 (E). In view of my conclusion stated above, it is not necessary for me to go into this question more elaborately, although I must say that I am inclined to accept the principle of law laid down in the above cases. Mr. Chatterji' next case Mahomed Akbar Zaman Khan v. Sukh deo Pande', 13 Cal LJ 467 (P) also does not cal for any particular notice. It was held there that no party should suffer for any act of the Court.
5. The next point urged by Mr. J.C. Sinha was that assuming that there was proper presentation of the application for execution before the Second Officer, the amount under execution must still be held to be barred as it was under an instalment decree and the account attached to the petition for execution did not show proper appropriation, nor was the payment of the amount certified to the Court.
A payment made out of Court could not be held to be valid to save limitation under Order 21, Rule 2, Civil P. C., unless the amount was duly certified. He referred in this connection to the case of -- 'Chhattar Singh v. Amir Singh', 38 All 204: (AIR 1916 All 239) (G). It is, however, unnecessary to deal with that case as Mr. R.S. Chatterji, for the respondents, contended that Order 21, Rule 2 is provided for the avoidance of fraud in respect of a payment out of Court. The judgment-debtor, no doubt, cannot take advantage of any payment which is not certified duty by the decree-holder or which has not been brought to the notice of the Court by the judgment-debtor.
The bar, therefore, of non-certification would operate against the judgment-debtor, but the decree-holder has no disability in the matter. He can always tell the Court what amount he has received and the Court will not compel him thereafter to claim a large amount. Mr. Chatterji referred in this connection to the case of -- 'Lakhi Narain Ganguli v. Felamani Dasi', 20 Cal LJ 131-(AIR 1915 Cal 235) (H), for the proposition that a decree-holder can certify at any time.
In my opinion, the argument is well-founded and the bar of Order 21, Rule 2, Civil P. C., to which reference was made by Mr. J. C. Sinha, is in fact no bar against the decree-holder, if in fact he has received a certain amount towards the decretal dues and scales down his claim under the decree accordingly.
6. Mr. J.C. Sinha, however, contended that the amount paid towards the decree not having been certified, it should be held that the decree was barred by time. The answer to that argument was given by the learned Subordinate Judge with reference to a number of decisions of this Court in the cases of -- 'Manindra Nath Roy v. Kanhai Ram', AIR 1918 Pat 95 (1); .-- 'Braham Kisun Narain Deo v. Harihar Munder', AIR 1932 Pat 253 (J) and -- 'Nirash v. Baldeo', 25 Pat 664-(AIR 1947 Pat 250) (K).
The principle laid down in all these decisions is that unless a decree clearly leaves the decree-holder no option on the happening of the default out to execute the decree once for all for the whole amount due under it, the decree-holder may execute it on the happening of the first, second or any subsequent default; and limitation will run against him only in respect of each instalment separately from the time when such instalment may become due and payable.
The learned Subordinate Judge construed the decree under execution and came to the conclusion that according to the terms of the compromise limitation would run against the decree-holders only in respect of each instalment separately from the time when each such instalment might become due and payable. Mr. J.C. Sinha did not seriously contend against this construction; and, in my opinion, the execution of the decree so far as the sixth instalment was concerned is not affected by execution being levied on 14-4-1944, which is within the period of three years allowed by law, on this ground.
I may state here that out of the sum of Rs. 4,453/- claimed by the decree-holders, & sum of Rs. 4150/- is for the sixth instalment and, apparently, Rs. 303/- is in respect of the dues of the fifth instalment. The fifth instalment having be-come payable on 14-4-1940, execution was clearly barred when it was levied; and Mr. R.S. Chatterji, for the respondents, has fairly conceded as it was conceded in the Court below that he would not press his claim for that amount, so that we are concerned only with the amount under the sixth instalment.
7. Mr. J.C. Sinha urged a further consideration, however, in regard to the point of limitation in terms of the case of -- 'Rama Shah v. Lal Chand', 67 Ind App 160 : (AIR 1940 PC 63) (1). It appears, however, that that is a case where their Lordships of the Judicial Committee had to deal with the effect of payment of interest as such to save limitation according to Section 20, Limitation Act and, therefore, that case is not relevant for our present purpose, as the decree-holders herein do not invoke the provisions of Section 19 or Section 20 to save limitation, because the sixth instalment is clearly within time if the presentation of the application for execution on 14-4-1944, as held above, was a valid presentation.
In the next place, Mr. J.C. Sinha contended that although Ss. 19 and 20, Limitation Act might not be relevant but, in any case, the execution petition did not indicate that the decree-holders had appropriated the payment of the amount to any particular instalment so that the sixth instalment alone was due. The decree-holders, no doubt, have appropriated the" previous payments towards the earlier instalments, but that should have been done in time, and the same not having taken place in the present case and the execution petition being silent on that point, it could not be urged that the sixth instalment alone was saved. He referred in this connection to Sections 59 and 60, Contract Act which deal with appropriation of payments; but in my opinion, these two sections are not relevant.
Section 59 deals with the application of payment where debt to be discharged is indicated, in which event the intention of the debtor Is the paramount factor in determining to which particular debt a certain payment would be appropriated. Section 60 deals with the application of payment where debt to be discharged is not indicated, in which case the creditor has the option to apply the amount at his discretion to any lawful debt actually due to him from the debtor. This is a privilege conferred by the Legislature upon the creditor which may include his right to appropriate payment even towards time-barred debts. Section 61, however, is really relevant for the consideration of the present case which runs thus:
"61. Application of payment where neither party appropriates. Where neither party makes any appropriation the payment shall be applied in discharge of the debts in order of time, whether they are or are not barred by the law in force for the time being as to the limitation of suits. If the debts are of equal standing, the payment shall be applied in discharge of each proportionably."
According to the terms of this section, therefore, law will presume that the payment so made shall be applied in discharge of the debt in order of time. Therefore, the payment made from time to time in the present case by the judgment-debtors must be held to have been made towards the instalments as they fell due, because there is no indication that they ever expressed any intention that they would be appropriated towards a particular instalment. This provision of the Contract Act, therefore, concludes the matter, and it must be held that the amounts paid were appropriated towards the discharge of the previous instalments and the sixth instalments was left outstanding.
8. In the result, all the contentions raised on behalf of the judgment-debtors fall. The applied is accordingly dismissed with caste.
Ahmad, J.
9. I fully agree with my learned brother that the appeal should be dismissed with costs.