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Vithalrao Gopalrao and ors. Vs. Ramkishen Waman and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberA.F.O.D. No. 301 of 1957 (with F.A. Nos. 317 and 331 of 1957)
Judge
Reported inAIR1961Bom258; (1961)63BOMLR54; ILR1961Bom203
ActsLimitation Act, 1908 - Sections 20 - Schedule - Article 182 and 182(5); Code of Civil Procedure (CPC), 1908 - Order 3, Rule 4 - Order 21, Rule 30; Hyderabad Limitation Act, 1322-F - Schedule - Article 160
AppellantVithalrao Gopalrao and ors.
RespondentRamkishen Waman and anr.
Appellant AdvocateY.V. Chandrachud and ;U.R. Lalit, Advs.
Respondent AdvocateR.G. Nandapurkar, Adv. for D.R. Nandapurkar, Adv.
Excerpt:
.....to a pleader by the vakalatnama in the suit continues to vest in him even for the purposes of execution proceedings. therefore, where there is an express authorization given to a pleader by the vakalatnama in the suit to make and receive payments, it is not necessary that there should also be any express authorization to him to make and receive payments in execution proceedings.;a pleader or an advocate is 'the duly authorised agent' within the meaning of that expression in section 20 of the indian limitation act, 1908. therefore, payment by him in execution is payment by a duly authorised agent arid as such saves limitation.;if article 182 of the indian limitation act applies to this case, the darkhast of 1944 can be treated as an application to take some step in aid which will..........of advocate vaishnav, who represented the judgment-debtors in the original suit as also in the darkhast proceedings. on 5th june 1944, the decree-holders started execution proceedings in case no. 31/3/53f (f. a no. 331 ot 1957) for the enforcement of two instalments. the question arose as to whether that execution petition was in time. it is not disputed that this petition is beyond three years from the date of disposal of the previous darkhast of 1348f. (1938-39). the trial court held that one of the two instalments was in time and the other was barred by limitation. there was an appeal to the hyderabad high court (995 of 1354f.) it was held by that high court that inasmuch as the decree-holders had exercised their option in 1348f. (1939) for enforcing the default clause, it was not.....
Judgment:

1.These three appeals arise from orders in execution proceedings. As the proceedings were disposed of in the Court below by a common judgment, these appeals can also be decided here by one and the same judgment. The circumstances leading to the execution petitions, which have given rise to these appeals, may be briefly stated as follows; The appellants (who will hereafter be referred to as the decree-holders) obtained an instalment, decree against the respondents (who will hereafter be referred to as the judgment-debtors) for a sum ot Rs. 30,000/- on 22-10-1935. The decretal amount Was payable by annual instalments of Rs. 2,000/-. There was a default clause, which provided that on the failure of the judgment-debtors to pay three instalments the decree-holders were at liberty to en-force the payment of the entire amount due till then. The first instalment became payable on 28thTeer 1346 F. (May, 1937). It appears that three instalments fell into arrears by May 1939. The decree-holders, therefore, started execution proceedings on 8th Shehrewar 1348F. for the recovery or the entire decretal amount in case No. 36/3 of 1348F. On 27th Isfindar 1349F. (30-1-1940), the judgment-debtors paid a sum of Rs. 2400/- in the Court towards part satisfaction of the decretal amount. The pleader for the decree-holders gave up his claim for the recovery of the full amount for the time being. The District Judge passed an order, which, translated into English, reads thus:

'That the execution petition is dismissed for part execution. The file be consigned to records'. Thereafter, in 1942, a sum of Rs. 2,000/- was paid in the Court by one Rajabhaoo, the son of judgment-debtor No. 1. This payment was accompanied by an application, which bore tlie signature of Advocate Vaishnav, who represented the judgment-debtors in the original suit as also in the Darkhast proceedings. On 5th June 1944, the decree-holders started execution proceedings in Case No. 31/3/53F (F. A No. 331 ot 1957) for the enforcement of two instalments. The question arose as to whether that execution petition was in time. It is not disputed that this petition is beyond three years from the date of disposal of the previous Darkhast of 1348F. (1938-39). The trial Court held that one of the two instalments was in time and the other was barred by limitation. There was an appeal to the Hyderabad High Court (995 of 1354F.) It was held by that High Court that inasmuch as the decree-holders had exercised their option in 1348F. (1939) for enforcing the default clause, it was not open to them to ask for the recovery of instalments. It was also held that the Darkhast was not preferred within three years from the date of the final order in the previous Darkhast. Therefore, even assuming that the Darkhast could he treated as a Darkhast lor a part of the amount that had become due, still it was barred by limitation. It was then pointed out on behalf of the decree-holders that the judgment-debtors had paid a sum of Rs. 2,000/- in the year 1942 and that this payment saved the Darkhast irom limitation. It was not clear from the record as to whether this payment was made by any person, who was duly authorised to make the same by the judgment-debtors. The execution petition was, there-fore, remanded to the Court below for deciding the question as to whether the alleged payment of Rs. 2,000/- in 1942 saved the Darkhast from limitation.

2. When the above Darkhast was remanded to the Court below the latter appears to have passed an order on the Darkhast of 1348 F. (1939), on 17th April 1950 as follows:

'File be restored as previously. Parties be informed and put up on 9th June 1950'. In pursuance of this order, the Darkhast of 1939 was revived and considered along with the Darkhast that was remanded. In the meantime, on l8th October 1950 the decree-holders started fresh execution proceedings in Case No. 14/3/1950 for the recovery of the entire amount including the amount claimed in the Darkhast of 1944. All these three Darkhast were tried together. Common evidence was recorded and they were disposed of byone judgment by the court below. The executing Court came to the conclusion that the payment made by the said Rajabhaoo was not a payment moue by a duly authorised agent within the meaning ot the expression in Section 20 of the Indian Limitation Act. Consequently, it dismissed all the three Darkbasts. The decree-holders have preferred appeals in all the three Darkhasts. As stated above, these appeals can be disposed ot by a common judgment.

3. The first question for our consideration is, whether the payment made by Rajabhaoo, the sou of judgment-debtor No. 1, through advocate Varsnnav in 1942 can be regarded as payment made by the person duly authorised by the judgment-debtors within the meaning of Section 20 of the Limitation Act-On behalf of the decree-holders, judgment-debtor No. 2 Haribhaoo and advocate Vaishnav were examined. Haribhaoo admitted that he and judgment-debtor No, 1 were members of a joint Hindu family; that both of them had engaged Mr. Vaishnav as their pleader; that the two together had made certain payments towards the satisfaction of the decree and that both of them were managers of the joint family. Of course, Haribhaoo stated that advocate Vislmav was authorised to make payments only on express instructions from them. He also stated that the application that was signed by advocate Vaishnav was not put in by him within his consent or knowledge. Advocate Vaishnav stated in his deposition that the Vakalatnama put in by him in the course of the suit expressly authorised him to make payments and also to receive payments. He also stated that as he was representing both the judgment debtors, whatever applications were made in the Court were to be treated as having been made on behalf oi both ot them. In view of this evidence, whether Rajabhaoo is regarded as an authorised agent oi the judgment-debtors or not, it is clear that, at any rate, advocate Vaishnav must be treated as the duly authorised agent on behalf of the judgment-debtors. Mr. Nandapurkar, for respondent No. 2, pointed out that the Vakalatnama expressly authorised advocate Vaishnav to make as also to receive payments in the suit. Although the Vakalatnama proceeded to say that Mr. Vaishnav should also appear in the execution petition, it merely stated that Mr. Vaishnav should receive the payment in Court. There is no express authorisation so far as execution proceedings are concerned that he should also make payments. In my opinion, the omission to make a specific mention that even in execution proceeding, Mr. Vaishnav should also pay the moneys, does not assist Mr. Nandapurkar in his argument that advocate Vaishnav was not the duly authorised agent of the judgment-debtors. There was an express authorisation so far as the suit was concerned. It is not necessary that there should be any express authorisation to appear in execution proceedings. The Vakalatnama in the course of the suit enures also for execution proceedings and whatever authority has been given to the pleader by the Vakalatnama in the suit, that authority will continue to vest in him even for the purposes of execution proceedings. It is significant to note that Mr. Vaishnav appeared in that suit and the execution proceedings on behalf of the judgment-debtors. There was, therefore, no question of his receiving any payments in execution proceedings. The omission, therefore, to specifical-ly mention that Mr. Vaishnav was also authorised to make payments in execution proceedings is obviously accidental. I must, therefore, hold that Mr. Vaishnav was authorised, under the terms of the Vakalatnarna, to make payments in execution proceedings on behalf of the judgment-debtors. If that is so, then it is clear that that was a payment, which gave a fresh period of limitation under Section 20 of the Limitation Act.

4. This finding will obviously save the Darkhast that was preferred on 5th June 1944. But, as stated above, this Darkhast was made in respect of two Instalments only. Mr. Nandapurkar contended that although the payment made in 1942 would save the Darkhast filed in 1944 from being barred by limitation, still it would not save the Darkhast that was presented in 1950, which was in respect of the entire amount due under the decree. As stated above, the Darkhast of 1950 was filed on 18th October 1950. Mr. Nandapurkar contended that this Darkhast is clearly beyond three years from the date of the dismissal of the Darkhast o[ 1939 and the payment made in 1942 would not save this Darkhast from being barred by limitation. Before considering this aspect of the matter, I would dispose of another question, which was incidentally raised before me regarding the effect of the Darkhast of 1939 having been revived on 17th April 1950. It was suggested by Mr. Chandrachud, for the appellants, that the Darkhast of 1939 was not finally disposed of and that the order passed thereon viz.,'the file be consigned to records,' does not amount to a final order within the meaning of that expression in Article 182 clause (5) of the Limitation Act. He argued that the Darkhast of 1939 has never come to an end and, therefore, the question as to whether the subsequent Darkhast either of 1944 or of 1950, are in time docs not fall to be considered. I am unable to accept this line of reasoning. The order that was passed in the Darkhast of 1939 was'the execution petition was dismissed for part satisfaction'.

This was the Operative part of the order. As a matter of fact, this question was considered by the Hyderabad High Court and it was repeatedly pointed out that the order of dismissal of the Darkhast was a final order. That being the case, the trial Court had no authority to revive the Darkhast of 1939 and the order reviving that Darkhasts would have no effect so far as the question of limitation is concerned.

5. We have, therefore, to Consider the question as to whether the Darkhast that was filed on 18th October 1950 can be said to be in time. Mr. Nandapurkar contended that we are not governed by Article 182(5) of the Indian Limitation Act. The article applicable to this case is Article 160 of the Hyderabad Limitation Act and the starting point of limitation under that article is the date of the dismissal when an application for execution has been made. Mr. Nandapurkar pointed out that the Darkhast of 1944 was for the recovery of only two instalments. The words 'step in aid of execution' contained in Article 182(5) of the Indian Limitation Act have not been employed in Article 160 of the Hyderabad Limitation Act. That being the case, theDarkhast of 1944 does not amount to step in aid. Either it is a Darkhast application or else it is nothing. As a Darkhast it will have to be confined to the claim made therein. Inasmuch as that Darkhast was itself restricted to two instalments, the Darkhast for the recovery of two instalments made subsequently would be saved as a result of the final order that may be passed 011 this execution petition, I cannot persuade myself to accept this line ot reasoning. It is significant to note that the words 'in accordance with law' which appear in Clause (5) of Art. 182 of the Indian Limitation Act, do not appear in Art. 1GO of the Hyderabad Limitation Act. All that is necessary under the latter Act is that there should be an application for execution. Now, that application may be in respect of the entire amount due or it may he in respect of a part of the amount due under the decree. In my opinion, therefore, it is sufficient if an application is made for the enforcement of part of the decretal claim to satisfy the requirement of Art. 160 of the Hyderabad Limitation Act. On the other hand, if article 182(5) of the Indian Limitation Act applies to this case, then the Darkhast of 1944 can be treated as an application to take some step in aid which again will give a fresh starting point for limitation,

6. Then Mr. Nandapurkar somewhat inconsistently argued that although it may be open to the decree-holders to Start fresh execution proceedings within three years from the date of the final order in the Darkhast of 1944 (no final order has yet been passed on that Darkhast and it is being passed today) no subsequent application or Darkhast can be made pending the earlier Darkhast of 1944. In other words, Mr. Nandapurkar's contention is that there cannot be two simultaneous execution petitions. Assuming this is to be so, that does not affect the question of limitation. What is necessary under Article 160 of the Hyderabad Limitation Act is that an application has been made for execution. It is the making of that application that will save the subsequent Darkhasts from being barred by limitation. The date of the final order of that application would be the terminus a quo for the starting of the period of limitation. In other words, passing of the final order is the last date, on which the period of limitation starts to run. If the Dark-hast of 1944 is held to be in time, then obviously any application made subsequent to that date, within three years from the date of the final order thereon, will have to be treated as being in time.

7. Coming to the second aspect of Mr. Nandapurkar's argument viz., that the second Darkhast cannot he made pending the first execution petition, it is sufficient to refer to the observations contained in the comments on the Code of Civil Procedure by D. F. Mulla, 12th Edition, p. 800, under Order 21, R. 30 under the heading 'simultaneous execution'. They are as follows:

'There is no statutory prohibition against a number of execution proceedings continuing concurrently'.

Again, at p. 218 of the above Code, the author observed :

'Simultaneous execution both against the property and person of the judgment-debtor is allowed under Order 21, R. 30. But the Court has discretionunder Order 21, R. 21 to refuse simultaneous execution and to allow the decree-holder to avail himself of only one mode of execution at a time'. It is true that the question with which the learned authority was dealing was a question regarding simultaneous execution, in which recourse has been had to different modes of execution. For instance, in one Darkhast the prayer is for the attachment of movable property and in the other Darkhast, it relates to attachment and sale of the immovable property. But, the principle underlying simultaneous executions seeking enforcement by different modes, will also apply to two execution petitions started one after the other. Now, the Darkhast of 1944 related to the enforcement of two instalments, whereas the Darkhast of 1950 was comprehensive and included all the amounts then due. I am unable to understand how the second Darkhast would be barred by reason of the first Darkhast. At best, the Court might say that in view of the second Darkhast, which is comprehensive, it is not necessary to prosecute the first one. But, so long as the Darkhast of 1944 is be held to be in time, obviously, the Darkhast of 1950, which was lilted before the passing of the final order, must also be held to be in time.

8.The result is that Appeals Nos. 317 and 331 of 1957 are allowed. The executing Court to proceed with the Darkhasts filed in 1944 and 1950 according to law. It is, however, open to the executing Court to merge the claim under the Darkhast of 1944 in that made under 1950. Appeal No. 301 of 1957 does not survive. In view of the fact that the appellants are succeeding on a new point raised for the first time in this Court, the proper ' order ns regards costs is that parties should bear their respective costs in appeals.

9. Appeals allowed.


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