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Sadaksharappa Kabbur Vs. Karlingawa Karadi - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 664 and 665 of 1942
Judge
Reported inAIR1946Bom187; (1945)47BOMLR848
AppellantSadaksharappa Kabbur
RespondentKarlingawa Karadi
DispositionAppeal dismissed
Excerpt:
.....independently of the word ' application.;the word 'application' in the article does not include a suit filed under order xxi, rule 63. a suit filed by a decree-holder, under order xxi, rule 63, civil procedure code, 1908, to obtain a declaration that property attached in execution of his decree is liable to be so attached is not a step-in-aid of execution within the meaning of article 183(5) of the indian limitation act, 1908.;semble, such a suit cannot be regarded as a suit filed in a 'proper court' for the purposes of the article.;raghunandun pershad v. bhugoo lall (1889) i.l.r. 17 cal. 268, ramasubbayya v. thimmiah [1942] a.i.r. mad. 5, and rajaram v. paiku [1940] nag. 334, followed.;hasan shah v. md. amir [1930] a.i.r. oudh 468 and rudra narain v. maharaja of kapurthala [1936]..........so that it is not possible to hold that the word 'application' in article 182, includes a suit filed under order xxi, rule 63. it was pointed out in ramasubbayya v. thimmiah that this definition was apparently overlooked by the learned judges of the oudh court in the decisions relied on by the appellants. the said provision in section 2(10) is very clear and it is a provision in the indian limitation act itself. it is, therefore, difficult to hold that the expression 'application' can be held to include a suit, though the decree-holder may no doubt, in conceivable circumstances, have first to file a suit in order to be able to proceed further with the execution of the decree. in our opinion the decision of the madras, calcutta and nagpur high courts that a plaint or suit filed.....
Judgment:

Sen, J.

1. The appellants in both these appeals are assignees of the decree-holder of two decrees obtained against two judgment-debtors, the dates of the decrees being August 14, 1930, and August 4, 1928. The questions involved in both the appeals are the same. I shall take the facts in second appeal No. 665 of 1942. In that case the decree was passed on August 14, 1930. Darkhast No. 323 of 1933 was the first darkhast filed on April 11, 1933, to: execute it. On a third party objecting and claiming interest in the property sought to be proceeded against the darkhast was dismissed on February 20, 1936. The present darkhast, being the second darkhast, was filed on June 9, 1939, that is, more than three years after the last darkhast was disposed of. The appellants sought to bring it within time relying on a suit, namely suit No. 75 of 1936, which was filed by them under the provisions of Order XXI, Rule 63, Civil Procedure Code, for a declaration that the property was liable to be sold as belonging to the judgment-debtor, although it had been alienated to the person who objected in the earlier darkhast, the alienation being bad under Section 53 of the Transfer of Property Act, 1882. The decree-holder succeeded in this suit and thereafter filed the present darkhast. The only question arising in this appeal is whether the present darkhast is in time. The answer to that question depends upon the construction to be placed on Clause 5 of Article 182 of the first schedule to the Indian Limitation Act, which gives a period of three years from 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.

2. Both the Courts below have held against the appellants, holding that the suit of 1936 cannot be regarded as an application to take some step in aid of execution within the meaning of Article 182, Clause 5. The lower appellate Court has further held that the Court in which the suit was filed cannot be regarded as the proper Court within the meaning of the said article. The appellants relied on two Oudh cases, Hasan Shah v. Md. Amir A.I.R [1930] Oudh 468 and Rudra Narain v. Maharaja of Kapurthala A.I.R [1936] Oudh 248, as well as on Vishvanath v. Narsu (1920) 23 Bom. L.R. 107. The lower appellate Court has held that the Bombay decision is inapplicable and preferred to follow the rulings of the High Courts of Madras, Calcutta and Nagpur in Ramasubbayya v. Thimmiah A.I.R [1942] Mad. 5, Raghunmdun Pershad v. Bhugoo Lall I.L.R (1889) Cal. 268 and Rajaram v. Paiku [1940] Nag. 334 which decided/first, that the plaint in a declaratory suit like the one which is relied on in this appeal cannot be regarded as a step in aid of execution within Article 182(5) of the Indian Limitation Act, and, secondly, that the Court in which the suit under Order XXI, Rule 63, is filed cannot be regarded as the proper Court within the meaning of the said article. The decision in the two Oudh cases is to the effect that in such a case the suit can be regarded as an application to take a step in aid of execution.

3. In order that Clause 5 of Article 182 of the first schedule to the Indian Limitation Act may apply there must be three things: first, ah application made in accordance with law, secondly, the application must be made to the proper Court, and, thirdly, it must be either for execution or to take some step in aid of execution. To take the last point first, there can be no doubt, as pointed out in Murgeppa v. Baswantrao : (1913)15BOMLR557 , that the application in accordance with law to the proper Court must be one which asks that Court to do one of two things, namely to execute the decree or to take some step in aid of execution. The words of the clause in question cannot be read, as Mr. Jathar at one stage of his argument attempted to read them, so that the words 'to take some step in aid of execution' should be read independently of the word 'application.' As against the decision of the Oudh Court there is a unanimity in the decisions of the other High Courts which I have mentioned (Madras, Calcutta and Nagpur) that a suit of the description we are concerned with here cannot be regarded as a step in aid of execution. Before dealing with the said decisions I may mention the two Bombay decisions cited before us, Vishvanath v. Narsu (1920) 23 Bom. L.R. 107 and Murgeppa v. Baswantrao : (1913)15BOMLR557 . In the first of those cases an application was made in the execution proceedings for time to enable the decree-holder to ascertain the share of the judgment-debtor in the property put up for sale, and it was held that such an application was within the terms of Clause (5) of Article 182. Mr. Justice Shah remarked. that the expression 'step in aid of execution of the decree' ought to be construed liberally. But in that case the application was made to the proper Court, viz. the executing Court, and it was a proper application made for a purpose necessary for the execution of the decree, for the decree-holder was unable to proceed with his darkhast unless he had ascertained what share the judgment-debtor had In the property sought to be brought to sale. In Murgeppa v. Baswamtraa an application was made by the decree-holder to obtain a succession certificate and it was held that such an application might be regarded as a mere preparation or preliminary to execution but not as a step in aid of execution. The Court also took the view that the Court before which such an-application was made could not be said to be the proper Court within the meaning of the clause in question, though in that case the application was actually made to the Court in which the execution was proceeding. The words 'proper Court' are defined in Explanation II to Article 182 as meaning 'the Court whose duty it is to execute the decree or order.' Batchelor J. remarked, It appears to us that it could not have been the intention of the Legislature that such a question as this should be decided on a mere accident of that sort.

4. The main ground on which the Madras High Court in Rarnasubbayya v. Thimmiah has held that the plaint in the declaratory suit cannot be regarded as a step in aid is the provision in Section 2(10) of the Indian Limitation Act that unless there is anything repugnant to the subject or context 'suit' does not include an appeal or application. As pointed out in Raghunandun Pershad v. Bhugoo hall the Indian Limitation Act draws a clear distinction between suits and applications, so that it is not possible to hold that the word 'application' in Article 182, includes a suit filed under Order XXI, Rule 63. It was pointed out in Ramasubbayya v. Thimmiah that this definition was apparently overlooked by the learned Judges of the Oudh Court in the decisions relied on by the appellants. The said provision in Section 2(10) is very clear and it is a provision in the Indian Limitation Act itself. It is, therefore, difficult to hold that the expression 'application' can be held to include a suit, though the decree-holder may no doubt, in conceivable circumstances, have first to file a suit in order to be able to proceed further with the execution of the decree. In our opinion the decision of the Madras, Calcutta and Nagpur High Courts that a plaint or suit filed under Order XXI, Rule 63, cannot be treated as an application within the meaning of Article 182 is, with respect, to be preferred to the Oudh decisions on which Mr. Jathar has relied. Mr. Jathar has drawn our attention to a Madras case and a Patna case in which for certain purposes it was held that a suit filed under Order XXI, Rule 63, was a continuation of the previous proceedings. But in neither of those cases-Raja of Ramnad v. Subramaniam Chettiar I.L.R (1928) Mad. 465 and Mussammat Bas Kuer v. The Gaya Municipality I.L.R (1938) Pat. 588 was the point with which we are concerned in issue, and the said decision had no connection with any question arising under the Indian Limitation Act. In view of the above conclusion it is not really necessary for us to go to the second point, as to whether the Court in which the suit was filed in this case can be deemed to be the proper Court within the meaning of Article 182. But on that point also the decisions of the High Courts of Calcutta, Madras and Nagpur seem to us to be clearly right, because the circumstance that a suit of this nature happens to be filed in the Court in which the execution proceedings are going on must be purely accidental and cannot, therefore, be held to amount to compliance with the requirement of law.

5. The appeals, therefore, fail and are dismissed.

Divatia, J.

6. I appreciate that the view we have taken will cause hardship to the decree-holder, who has got to file a suit under Order XXI, Rule 63, to set aside an adverse order under Rule 60. If he succeeds in taking a decree in his favour more than three years after the darkhast is dismissed on the ground that the judgment-debtor had no interest in that property, the second darkhast to proceed against the property will be prima facie time-barred as the filing of the suit is not a step in aid of execution. He cannot, properly speaking, file his darkhast until it is decided that the objector has no interest in the property. But for the purpose of limitation he must either keep the first darkhast alive or put his second darkhast on file within three, years from the dismissal of the first darkhast and then wait for what happens to his suit if it is not decided by that time. This is the result of the definition of 'suit' in Section 2(10) of the Indian Limitation Act by which it is not meant to include an appeal or application. It is for the Legislature to consider whether the decree-holder should be driven to file a darkhast at a time when he cannot proceed against the property. However, according to the law as it stands, there can, in my opinion, be no other decision than the one we have arrived at following not only the language of the law but also the authorities on this point. I agree therefore that the appeals should be dismissed.


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