Calcutta High Court
Rajani Bandhu Chatterjee And Anr. vs Kali Prasanna Chatterjee on 22 December, 1922
Equivalent citations: 74IND. CAS.279, AIR 1924 CALCUTTA 419
JUDGMENT
1. This is an appeal by the judgment-debtors against an order in execution of a decree. The decree was made by the Trial Court on the 3rd July 1906 and was successively confirmed by the lower Appellate Court and by this Court on the 10th September 1907 and 9th March 1910. In 1912 the decree-holder, made the first application for execution of the decree which directed the judgment-debtors to carry out certain works and to restore the disputed property to its original condition. The application was dismissed by the Trial Court on the 17th Tanuarv 1913. On appeal the District Judge directed that a Commissioner should be appointed with a view to carry out the terms of the decree, and a Commissioner was accordingly appointed. He submitted a report to which exceptions were taken. These were overruled on the 9th July 1913 by the District Judge who accepted the report of the Commissioner and directed that the execution should take place on its basis. The decree-holder, however did not proceed with the execution and the proceedings were apparently discontinued. On the 16th September 1914 the decree-holder made the second application for execution. This application was based on the assumption that the decree-holder was not bound by the determination of the District Judge on the previous application that execution should proceed on the basis of the report of the Commissioner. The result was that the judgment-debtors objected. On the 15th March 1916 the Trial Court directed that execution shot Id take place on the basis of the order of the 9th July 1913. The decree-holder was dissatisfied and appealed. The appeal, as might have been expected, was dismissed on the 3rd July 1916. A second appeal was preferred to this Court with the result that it was dismissed on the 9th February 1917. The obvious course of the decree-holder would have been, after the dismissal of the appeal by this Court to proceed with the execution as was directed by the Court of first instance. No steps however, were taken till the 23rd January 1920 when he presented the third application for execution. He was forthwith me with the plea of limitation on the part of the judgment-debtors. The Courts below have held that the application was not barred by limitation. We are of opinion that the view taken by the lower Courts cannot be supported.
2. In the first place, it is plain that Art 182 of the Schedule to the Limitation Act is of no assistance to the decree-holder, He is not able to show that within three years of the date of the present application that is, subsequent to the 23rd January 1917, he applied to the proper Court to take a step-in-aid of execution. The fact that he brought an appeal to this Court on the 9th February 1917 against the decision of the District Judge could not clearly be treated as an application to the propel Court to, take a step-in-aid of execution The expression "proper Court" as defined in Explanation II to Article 182 does not apply to a case such as this.
3. In the next place, it is clear that Section 14 of the limitation Act is of no avail, Sub-section (2) to Section 14 which has been invoked on behalf of the respondents, provides that "in computing the period of limitation prescribed for any application the time during which the applicant had been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of Appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it." It cannot seriously be maintained that the previous application for execution could not be entertained by the Court from defect of jurisdiction or other cause of a like nature. The Court dealt with it on the merits and came to the conclusion that the judgment-debtors and the decree-holder were alike bound by the order made in the course of the first execution proceedings. In these circumstances, it is difficult to appreciate how the decree-holder can possibly escape the bar of limitation.
4. It has been finally suggested, however, that the present application for execution may be treated, not as a fresh application but as one in continvation of the second application for execution. This view is clearly unsupportable on the authorities. It was pointed out by the Judicial Committee in the case of Qamar-ud-uin Ahmad v. Jawahir Lal 27 A. 334 : 2 A.L.J. 397 : 1 C.L.J. 381 : 9 C.W.N. 601 : 15 M.L.J. 258 : 32 I.A. 102 : 7 Bom. L.R. 433 : 8 Sar. P.C.J. 810 (P.C.) that an application for execution may in certain contingencies be treated as one to revive and carry through a pending execution this, the second application might be treated as one not to initiate a new proceeding, but to revive the previous proceeding when the latter was arrested by reason of circumstances over which the decree-holder had no control. This principle clearly does not apply to the present case. Here the difficulty has been created entirely by the decree-holder himself, as he ignored the order made by the Execution Court in the first proceeding. In these circumstances, the principle has clearly no application see Kristo Coomar Nag v. Mahabat Khan 5 C. 595 : 2 Ind. Dec. (N.S.) 986 and Baroda Kanta Basu v. Chandra Kanta Ghose 6 C.W.N. 706 : 29 C. 682. The decision of the Allahabad High Court in Hulasi v. Maiku 5 A. 236 : A.W.N. (1883) 5 : 3 Ind. Dec. (N.S.) 214 was pronounced under very special Circumstances. If the principle recognised in that case could be applied, the result would be Act the order made by the District Judge on the 9th July 1913 would have to be treated as an order capable by itself of execution, even that conclusion, however, would be of no assistance to the respondent, for he never sought to execute the decree till the 23rd January 1920 after the lapse of the period of limitation.
5. The result is that the order of the District Judge is set aside and the application for execution of the decree dismissed with costs in all Courts. The hearing fee is assessed at one gold mohur in this Court.