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Thakarshi Jaichand Shah and ors. Vs. Woman Pralhad Kulkarni - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 20 of 1947
Judge
Reported inAIR1950Bom184; (1950)52BOMLR205
ActsLimitation Act, 1908 - Schedule - Article 182 and 182(5); Code of Civil Procedure (CPC) , 1908 - Order 21, Rule 11 - Order 30, Rule 9
AppellantThakarshi Jaichand Shah and ors.
RespondentWoman Pralhad Kulkarni
Appellant AdvocateR.J. Thakor and ;N. C. Shah, Advs.
Respondent AdvocateG.R. Madbhavi and ;A.G. Kotwal, Advs.
Excerpt:
.....rule 9, civil procedure code (act v of 1908), whether necessary to be followed.;an application for execution of a decree against a firm is deemed to be made 'in accordance with law' within the meaning of article 182(5) of the indian limitation act, 1908, even though the leave of the executing court, referred to in order xxx, rule 9, of the civil procedure code, 1908, has not been obtained.;sadashiv v. narsingrao (1914) 17 bom. l.r. 203 and shankar hari v. damodar vyankaji (1944) 47 bom. l.r. 104, referred to.;gopal parsharam v. damodar janardan (1942) 45 bom. l.r. 707, considered.;on the question whether a particular application is or is not ' in accordance with law ' within the meaning of article 182(5) of the indian limitation act, it is unsafe to lay down general tests irrespective of..........a sum of rs. 2,650 to be paid by the defendant ginning company.3. on 6th april 1938, the receiver filed an execution application no. 565 of 1938 to execute the decree and on 16th august 1939, the executing court made an order in favour of the plaintiff directing sale of certain property. from that decree an appeal was filed in this court by the defendant and this court by its judgment dated 28th july 1941, allowed the defendant's appeal and dismissed the darkhast. the decision went principally upon the question whether leave of the court was necessary under order 30, rule 9, civil p. c., and wassoodew j. held that absence of leave struck at the root of the matter, and that is how the court ordered the darkhast to be dismissed.4. on 9th december 1941, the plaintiff decree-holder filed.....
Judgment:
ORDER

J. Dixit, J.

1. This is an appeal under the Letter Patent from a decision of Gajendragadkar J.

2. There was at Nandurbar a firm of the name of Maganlal Natbabhai Oil Mill. The firm was composed of two partners, namely, Jayachand Somchand and Maganlal Nathabhai. In 1934 Jayachand Somchand filed against Maganlal Natbabhai a Suit No. 460 of 1934 for dissolution of the partnership and in the course of that suit a receiver was appointed. In 1935, the receiver appointed in Suit No. 460 of 1934 filed against a company called Jayachand Somchand Ginning Company a Suit No. 199 of 1985 to recover a sum of Rs. 6,600. The suit was filed against two persons, i.e., against Jayachand Somchand Vani as defendant 1 and Padamsi Jasraj Vani as defendant 2. On 23rd September 1937, a consent decree was passed in favour of the plaintiff for a sum of Rs. 6,475 and it was made payable in two sums of money, i.e., a sum of Rs. 3,825 to be paid by defendant 1 and a sum of Rs. 2,650 to be paid by the defendant Ginning Company.

3. On 6th April 1938, the receiver filed an execution application no. 565 of 1938 to execute the decree and on 16th August 1939, the executing Court made an order in favour of the plaintiff directing sale of certain property. From that decree an appeal was filed in this Court by the defendant and this Court by its judgment dated 28th July 1941, allowed the defendant's appeal and dismissed the darkhast. The decision went principally upon the question whether leave of the Court was necessary under Order 30, Rule 9, Civil P. C., and Wassoodew J. held that absence of leave struck at the root of the matter, and that is how the Court ordered the darkhast to be dismissed.

4. On 9th December 1941, the plaintiff decree-holder filed the present application for execution, namely No. 1306 of 1941, and in these execution proceedings, the plaintiff obtained leave as required by Order 30, Rule 9, Civil P. C. The judgment-debtor contended that the application for execution was barred by the law of limitation and the executing Court having accepted that contention dismissed the darkhast, From that order the plaintiff preferred an appeal in this Court and Gajendragadkar J. by his judgment dated 13th November 1946, allowed the plaintiff's appeal holding that the darkhast was in time. He, therefore directed the darkhast to be dealt with according to law. From that order the heirs of judgment-debtor 1 have preferred this letters patent appeal.

5. On this appeal, Mr. Thakore for the appellants contends that the darkhast No. 1306 of 1941 is barred by the law of limitation. The determination of this question depends upon the answer to another question which is whether the previous application for execution, namely darkhast No. 665 of 1938, was an application in accordance with law. Reliance is placed upon the provisions of Order 30, Rule 9, Civil P. C. The rate provides that:

'This order shall apply to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners in common ; bat no execution shall be issued in such suits except by leave of the Court, and, on an application for leave to issue such execution all such accounts and Inquiries may be directed to be taken and made and directions given as ma; be just.'

Mr. Thakore's contention is that the obtaining of leave as required by the rule is a condition precedent to the issuing of execution, and that since no leave of the Court was admittedly obtained in the previous execution proceedings, that application cannot be said to be one in accordance with law. The question whether a particular application is one in accordance with law or not must depend upon the facts of each case and it would seem that that question is not always easy to decide. Their Lordships of the Privy Council in the case reported in Govind Prasad v. Pawankumar, 46 Bom. L. R. 306 : A. I. R. 1948 P. C. 98, have laid down the following test (p. 809): 'It is well settled that the words in accordance with law mean in accordance with the law relating to the execution of the decree.' Gajendragadkar J. relied in support of the view which he took principally upon a decision of this Court reported in Sadashiv v. Narsingrao, 17 Bom. L. R. 203 : A.I.R. 1915 Bom. 46. It was held in that case that the application for execution was ''in accordance with law' within the meaning of Art. 182, Limitation Act, even though it was not accompanied by the conciliator's certificate as required by Section 47, Dekkhan Agriculturists' Relief Act. A reference to Section 47, Dekkhan Agriculturists' Relief Act shows that the bar imposed by Section 47 is absolute, because the section provides that :

'No suit, and no application for execution of a decree passed before the date on which this Act comes into force, to which any agriculturist residing within any local area for which a Conciliator has been appointed is a party, shall be entertained by any civil Court unless the plaintiff produces a certificate in reference thereto obtained by him under Section 46 within the year immediately preceding.'

It follows from this decision that even though an application for execution is filed and the, same is not accompanied by a certificate as required by the section, the application is nevertheless one in accordance with law. The test laid down in a later case of this Court does not seem to be as favourable as is laid down in the case just cited, e. g., the test laid down in Gopal Parsharam v. Damodar Janardan, : AIR1943Bom353 :

'. . . .the main test of an application for execution being in accordance with law would appear to be whether it is possible (or the Court to issue execution upon it i. e., whether it is within the power of the Court to grant the kind of relief asked for, though in the particular case the relief may not, on the merits be granted, e. g., owing to some finding on facts, not to the nature of the application itself.'

It will be observed that this case follows a decision of the Calcutta High Court in Pitambdar Jana v. Damodar Guchait : AIR1926Cal1077 . For the sake of convenience reference may also be made to another decision of this Court reported in Shankar Hari v. Damodar Vyankaji, 47 Bom. L. R. 104: A.I.R. 1946 Bom. 380. The test laid down in that case is, in the words of the headnote, as follows :

'The expression 'in accordance with law' in Art. 182 (5) of the first schedule to the Indian Limitation Act, 1908, does not imply that the application must be successful. It may be in accordance with law for the purpose of that article and yet the applicant may not be entitled to any relief on account of circumstances other than there being any defect in the application itself. Where, therefore notices required by the proviso to Order 21, Rule. 16, Civil P. C., are not given to the decree-holder and the judgment-debtors, the application for execution does not thereby cease to be in accordance with law.'

6. A good deal of case law has centred upon the proper meaning to be given to the expression 'in accordance with law,' and in the present case Mr. Thakor for the appellants has contended that in this case the application for execution, namely, No. 565 of 1938, cannot be said to be one in accordance with law, because leave of the Court as required by Rule 9 of Order 30, Civil P. C., was not obtained, and since the obtaining of the Court's leave is a condition precedent to the issuing of the execution, that application cannot be said to be in accordance with law. If the interpretation placed upon the words 'in accordance with law' in Sadashiv v. Narsingrao 17 Bom. L. R. 203 A. I. R. 1916 Bom 46, is correct, then it is obvious that Mr. Thakor's contention is not well founded. If, on the other hand, the test laid down in Gopal Parsharam v. Damodar Janardan : AIR1943Bom353 , following the Calcutta decision, is correct, there is a good deal to be said in favour of the contention. As there is no direct case deciding this point with reference to Order 30, Rule 9, Civil P C , it is desirable that this question should be determined by a larger bench. We, therefore, frame the question for determination by a Full Bench and that question is this:

'Whether the application for execution, i. e. Darkhast No. 565 of 1939, is an application in accordance With law?'

We also direct that the case papers, may be laid before the learned Chief Justice in-order to enable him to constitute a full bench for the determination of the question above referred to.


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