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Govind Sadashiv Pathak Vs. Sadashiv Shivrao Nisal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 20 of 1951
Judge
Reported inAIR1955Bom93; (1954)56BOMLR597; ILR1954Bom1173
ActsLimitation Act, 1908 - Sections 2(7), 14 and 14(2) - Schedule - Article 182(5); Code of Civil Procedure (CPC), 1908 - Sections 11 and 39 - Order 21, Rules 6, 10 and 11; Bombay General Clauses Act, 1904 - Sections 3(20); General Clauses Act, 1897 - Sections 3 and 3(20)
AppellantGovind Sadashiv Pathak
RespondentSadashiv Shivrao Nisal
Appellant AdvocateM.M. Jape, Adv.
Respondent AdvocateV.S. Desai, Adv.
Excerpt:
.....to p court for execution--decree set at aside by a court, suit restored to file and another decree passed in 1936--darkhast filed in execution of decree of 1936 in 1939, 1941 and 1943--decree-holder transferring decree of 1936 to p. court and applying for execution in 1947--whether application barred--darkhast for 1939 to 1943 whether in accordance with law under article 182(5)--order made by court transferring decree under section 39 of code but certificate under order xxi, rule 6, not issued to transferee court--whether transferee court has jurisdiction to execute decree--'good faith', distinction between the definitions contained in indian limitation act and bombay general clauses act. ; an ex parte money decree was passed against the defendant by the ahmednagar court on..........patent appeal which raises the question of the maintainability of a certain darkhast filed by the decree-holder. in our opinion, if the decree-holder finds himself in a position where he cannot execute the decree which he has obtained against the judgment-debtor, he has largely to thank himself. this case is a glaring instance of a litigant obtaining a decree and then doing nothing more than keep it alive by filing darkhast after darkhast.2. the facts briefly are that the appellant, who is the decree-holder, filed a suit in the ahmednagar court, being suit no. 5 of 1934, and obtained a money decree against the judgment-debtor, the respondent, on 12-2-1935. the decree was ex parte, and the respondent applied to set aside the ex parte decree, and the court set aside the ex. parte decree.....
Judgment:

Chagla, C.J.

1. This is a Letters Patent appeal which raises the question of the maintainability of a certain darkhast filed by the decree-holder. In our opinion, if the decree-holder finds himself in a position where he cannot execute the decree which he has obtained against the judgment-debtor, he has largely to thank himself. This case is a glaring instance of a litigant obtaining a decree and then doing nothing more than keep it alive by filing darkhast after darkhast.

2. The facts briefly are that the appellant, who is the decree-holder, filed a suit in the Ahmednagar Court, being suit No. 5 of 1934, and obtained a money decree against the judgment-debtor, the respondent, on 12-2-1935. The decree was ex parte, and the respondent applied to set aside the ex parte decree, and the Court set aside the ex. parte decree on 5-11-1936. The respondent was again absent and an ex parte decree was again passed on 26-11-1936.

On 25-2-1935, the appellant applied to the Ahmednagar Court for the transfer of the decree which had been passed on 12-2-1935, to the Poona Court where the respondent had some property, and the Court made an order transferring the decree and issued the necessary certificate under Order 21, Rule 6. Having obtained the certificate, the appellant filed a darkhast in the Poona Court for execution of the decree of 12-2 1935. This was darkhast No. 547 of 1935. This darkhast was disposed of on 15-1-1936. The appellant filed another darkhast on 11-1-1939, being darkhast No. 52 of 1939. This darkhast was also for the execution of the decree of 12-2-1935.

The appellant presented a third darkhast on 31-10-1941, being darkhast No. 20 of 1941. Again this was for the execution of the decree of 12-2-1935. In answer to this darkhast the respondent appeared and filed a written statement. This darkhast was disposed of on 29-9-1942, for non-prosecution.

A fourth darkhast was filed again for the execution of the earlier decree on 10-6-1943, beingdarkhast No. 887 of 1943, and this was disposed of on 1-2-1946, the respondent having paid Rs. 50 in part satisfaction of the decree. The final darkhast was filed on 12-9-1946, being darkhast No. 63 of 1946, which is the darkhast under appeal, and as before the darkhast was for the execution of the earlier decree.

On 21-3-1947, the appellant applied for an amendment of the darkhast and the amendment sought was to insert in the application for execution the following sentence that the said decree, viz. the decree of 12-2-1935, had been revived on 26-11-1936. This amendment was allowed. Then the appellant applied to the Ahmednagar Court for the transfer of the decree of 26-11-1936, and the decree was transferred on 6-6-1947.

On 16-6-1947, the appellant applied for another amendment of his darkhast and the amendment he sought was the insertion in column 6 of the darkhast the following:

'This Court has received from the Ahmednagar Court on 6-6-1947, the certificate of the decree revived on 26-11-1936.'

3. This amendment was also granted and the executing Court ordered the execution to proceed. An appeal was preferred from that order which came up before Mr. Justice Bavdekar, and Mr. Justice Bavdekar allowed the appeal and held that the darkhast was not maintainable.

The decree-holder has now come to us in this Letters Patent appeal.

4. Now, it is clear that there was no application for execution of the decree of 26-11-1936, till the darkhast of 12-9-1946, was amended on 16-6-1947. It was only after that decree was transferred to the Poona Court that the decree-holder made the necessary application to treat the darkhast as a darkhast to execute the subsequent decree. Prima facie, therefore, inasmuch as the first application for execution of the decree of 26-11-1936, was made on 16-6-1947, the application is barred by limitation, unless the decree-holder is in a position to satisfy us that he has taken any step under Article 182(5) of the Indian Limitation Act for execution of the decree in a proper Court and the application for execution was in accordance with law.

5. Mr. Jape has advanced many ingenious arguments in order to save his darkhast. His first contention is that inasmuch as the decree that was passed on 26-11-1936, stated that the decree should be the same as passed on 12-2-1935, it was competent to the decree-holder to execute the decree of 12-2-1935, and he was within his rights !n filing the various darkhasts that he did for the execution of the decree of 12-2-1935.

In our opinion that contention is entirely untenable. The decree of 12-2-1935, was set aside by the Court on 5-11-1936, and once that decree was set aside, it ceased to be a subsisting decree which was capable of execution. It is not correct to say that that decree became unexecutable. It is truer to say that that decree ceased to exist, and if the decree ceased to exist, naturally no possible question about its executability can arise.

It is then urged by Mr. Jape that it was open to the Judgment-debtor to raise the contention that the darkhasts presented by the decree-holder were not maintainable inasmuch as he was seeking to execute a decree which was not existing, and Inasmuch as he did not raise this contention, it is not open to him now to take that contention and He should be debarred from doing so on the principle of res jucdicata. What is relied upon is the principle of constructive res judicata.

In our opinion the principle of res judicata does not come into play at all in this case. What is now being urged by the judgment-debtor is that the application for execution which is presented on 12-9-1946, is barred by limitation. That question has never been decided by any Court before. Even assuming that the Court held constructively that the old decree was executable, we are not concerned now with any darkhast which is seeking to execute the old decree; we are now concerned with a darkhast which is seeking to execute the decree which was passed on November 26, 1936.

It is also difficult to understand why the Judgment-debtor should have taken up the contention that the old decree was not executable. If the decree was not subsisting even without the judg-ment-debtor taking up that contention, the Court had no jurisdiction to entertain a darkhast to execute a decree which as it were had been wiped off from the record of the Court.

6. it is then urged by Mr. Jape that we should treat the darkhasts filed by the judgment-creditor prior to 12-9-1946, as darkhasts for the execution of the decree dated 26-11-1036, and Mr. Jape says that we must look upon those darkhasts as containing a misdescription of the decree. Mr. Jape says that the amount of the decree is the same, the liability subsisting against the judgment-debtor is the same, and the only mistake in the darkhast is that Instead of stating the date of the decree to be 12-2-1935, what is stated is 26-11-1936.

Now, we can understand a case of misdescription if the decree-holder purports to execute a particular decree and in attempting to execute it he wrongly describes the decree either as to its date or as to its contents. But the true position here is that the judgment-creditor clearly Intended to execute the decree of 12-2-1935, and not the decree of 26-11-1936. He got the first decree transferred and he never got the second decree transferred, and right up to 6-6-1947, when the second decree was transferred, his whole attempt was to execute the decree which had been set aside. On these facts it is impossible in our opinion to contend that the darkhast contained any misdescription and the Court must look upon the earlier darkhasts as really darkhasts for the execution of the subsequent decree.

7. Reliance is placed by Mr. Jape upon Article 182(5), Limitation Act, and Mr. Jape wants us to look upon the earlier darkhasts as applications for execution which fall within the purview of Article 182C5). Now, three conditions are necessary before an application for execution can fall under Article 182(5) and can save the period of limitation for the execution of a decree which is three years. It must be an application for execution in accordance with law, it must be to the proper Court, and it must be an application for the execution of the decree which the decree-holder is seeking to execute by the subsequent darkhast and in respect of which he is attempting to save limitation.

In our opinion none of these three conditions are present in the present case. The earlier darkhasts were not in accordance with law because they were applications for execution of a decree which was not subsisting. As we shall presently point out, they were not to the proper Court because the second decree had not been transferred to the Poona Court for execution and the Poona Court had no jurisdiction to execute the decree. Thirdly, they were not applications for execution of the decree contemplated by Article 182(5); they were applications for the execution of an entirely different decree.

8. With regard to the question as to whether the Poona Court was the proper Court, an interesting argument has been advanced to us by Mr. Jape and Mr. Jape's contention is that even without a certificate being issued by the executing Court, if the property of the judgment-debtor is situated within the Jurisdiction of the Poona Court, then the Poona Court had inherent jurisdiction to execute the decree and failure on the part of the decree-holder to obtain a certificate was a mere irregularity which would not deprive the Poona Court of its jurisdiction.

The question may be looked at from this point of view. Under the Code, a decree can be executed either by the Court that passed the decree or by the transferee Court. When the decree is to be executed by the transferee Court, an application for transfer has got to be made by the decree-holder. It is on that application that the Court passes a Judicial order. That order having been passed, then certain ministerial act has got to be done and that ministerial act is the sending of the certificate under Order 21, Rule 6, by the Court that passed the decree to the Court which has to execute it. We can understand a case where a decree-holder applies for transfer, an order is made by the Court, and then the certificate is not issued and not sent to the transferee Court. Under those circumstances it would be open to the decree-holder to contend that a judicial order having been made the transferee Court was given jurisdiction and the mere fact that a certificate was not sent would not deprive that Court of its jurisdiction. But in this case no application even was made by the decree-holder for the transfer of the decree, much less a judicial order being passed by the Court. Therefore, we have not here a case where there is merely the absence of a certificate contemplated by Order 21, Rule 6. Here we have the absence even of a judicial order passed by the Court which passed the decree, and it is difficult to take the view that the Poona Court would be the proper Court, a Court with jurisdiction, when the condition precedent to its having jurisdiction has not been complied with, viz., a judicial order passed by the Court which passed the decree ordering the transfer of the decree.

9. Reliance was placed by Mr. Jape on a decision of the Madras High court reported In - 'Balakrishnayya v. Linga Rao. AIR. 1943 Mad 449.

Now, the facts there were very different it seems that a preliminary mortgage decree was passed on December 19, 1924, by the Court of the Subordinate Judge at Bapatla. Then there was an appeal against the preliminary decree to the High Court, but while the appeal was pending a final decree was passed by the trial Court on October 3, 1927. That was the Court at Bapatla.

On August 1, 1930, the territorial jurisdiction over the mortgaged properties was transferred from the Court at Bapatla to the Court of the Subordinate Judge at Tenali and the suits pending in the Bapatla Court were transferred to the Court at Tenali. But this particular mortgage suit was not transferred. On May 8, 1934, the High Court disposed of the appeal which was pending against the preliminary decree and made certain modifications in the decree and the decree-holder, without applying for obtaining a final decree in terms of the modification introduced by the High Court, filed in the Court at Tenali on 2-4-1937, a petition for execution of the decree against the judgment-debtor. This application was dismissed on 26-1-1939.

A fresh execution petition was filed in the Court at Tenali in 1940 and the objection was taken that the decree was unexecutable in the absence of a final decree passed in accordance with the decree of the High Court and that the Tenali Court had no jurisdiction to entertain the execution petition, and the Court held that the order passed by the Court at Tenali on the first darkhast was an order directing execution to proceed on the footing that the decree was one capable of execution and of being executed by the Court, and that order operated as res judicata in subsequent execution proceedings, and the Court also held that the Court at Tenali had inherent Jurisdiction over the mortgaged properties which were situated within its territorial limits, and that the absence of an order of transfer of the decree by the Court at Bapatla in accordance with Section 39 of the Civil Procedure Code was only an irregularity in the assumption of jurisdiction by the Court at Tenali.

Mr. Jape relies on both parts of this decision. He says that here also we have a case where a darkhast was presented to execute a decree which was not executable, and inasmuch as no objection was taken by the judgment-debtor, the order was held to operate as res judicata.

Now, the distinction is clear. In this case there was a decree absolute passed by the trial Court. The preliminary decree was modified by the High Court and it is true that the decree-holder should have obtained a proper final decree in terms of the preliminary decree passed by the High Court which decree should have been executed. But on the facts it could not be said that the final decree was set aside and ceased to exist as in the case we have before us. Therefore, on the peculiar facts of that case the Madras High Court held that the doctrine of res judicata came into operation. On the other point also theposition is different from the position we have here. By an administration order the Court at Tenali was given jurisdiction over the mortgaged properties and the Madras High Court was dealing with a mortgage suit. Therefore, when the application for execution was presented to the Tenali Court, the Tenali Court was the Court which could have passed the decree in the suit. As a matter of fact that was the only Court that could have passed the decree, the jurisdiction having been taken away from the Bapatla Court. It was under these circumstances that the Madras High Court held that the Tenali Court had inherent jurisdiction to execute the decree inasmuch as it had jurisdiction over the mortgaged properties and therefore jurisdiction to entertain the mortgage suit.

The facts here are that the decree which has been passed is a money decree and the only Court which could have passed that decree was the Court at Ahmednagar. The Poona Court had no Jurisdiction as far as the suit was concerned, nor had it jurisdiction to pass the decree. Its jurisdiction only arises by reason of a decree being transferred to it and if the decree is not transferred it is difficult to see how the Poona Court can have jurisdiction to execute the decree which it did not pass and which it could not have passed and which was passed by another Court. Mr. Jape draws our attention to a statement of the law in Sir Dinshah Mulla's well known commentary on the Civil Procedure Code under Section 39 and at p. 169 the learned author says, 'Ordinarily an order transferring a decree under the section is merely a ministerial order', and for that purpose the learned author relies on the Madras case to which reference has just been made.

With great respect, it is difficult to accept that statement of the law. When an application for transfer is made, notice is served upon the judgment-debtor, he is entitled to raise objections, the objections are heard, and after the objections are heard the Court makes an order transferring the decree. It is difficult to understand how under these circumstances the order made by a Court under Section 39 is a ministerial order. As already pointed out, what is ministerial is not the making of the order but the issue of the certificate under Order 21, Rule 6.

10. Then reliance is placed by Mr. Jape on another decision of the Madras High Court which is reported in - 'Subramanian v. Muthusami', AIR 1941 Mad 538. That is a judgment Of a single Judge, Mr. Justice King, and there also the facts were very different. The decree-holder obtained an ex parte decree for Rs. 1,600 against three defendants. Defendant No. 1 applied to set aside the decree and an order was passed in his favour that the decree should be set aside if he deposited a sum of Rs. 1,100 by a certain time. Part of this amount was deposited but not the whole by the time stated in the order of the Court, and on a subsequent date the Court passed a revised decree in which decree the amount deposited was given credit to the decree holder and the balance was found due under the decree.

The decree-holder filed a darkhast on the assumption that the amount due under the original decree was still due from the judgment-debtor. At a later stage the decree-holder realised his mistake and corrected it and wanted to execute the revised decree, and the question that arose for Mr. Justice King's consideration was whether the subsequent application was barred by limitation, and the learned Judge took the view that the earlier applications for execution were made in accordance with law within the meaning of Article 182(5); and Mr. Jape wants us to apply the principle of this case to the facts before us.

Now, the decree passed in the Madras case was never set aside, the condition for setting aside the decree was not complied with, and the original decree stood and was subsequently revised. It was on these facts that the learned Judge, with respect to him, went as far as it was possible to go and held that though there might have been two decrees, one superseding the other, and though technically speaking the second decree is the only one that can possibly be executed, there was only one liability and there had never been any doubt that the judgment-debtors in that case were under a liability, as a result of the litigation, to the decree-holder.

Mr. Jape says that in this case, too, there is no doubt as to the liability, that the liability results from the same litigation, and we must take a liberal view of Article 182(5). In our opinion it is impossible to accept Mr. Jape's contention.

With respect to Mr. Justice King, what Article 182(5) contemplates is not the question of liability; the question is whether the application for execution contemplated by that article is in accordance with law. Although it may be possible to take the view that there is no difference between executing an original decree and a revised decree, it is impossible further to extend this principle by taking the view that there is no difference in attempting to execute a decree which has been set aside and a decree which has taken its place.

Therefore, in our opinion, even assuming the view taken by Mr. Justice King, with respect, is right, the principle deducible from that case is not applicable to the facts here.

11. Mr. Jape finally urged that we should give him relief under Section 14(2) of the Limitation Act. Mr. Jape says that the earlier darkhasts should be looked upon as applications for the same relief prosecuted in good faith in a Court which from defect of jurisdiction or other cause of like nature was unable to entertain it. Now, there are several difficulties in the way of Mr. Jape persuading us to hold that Section 14(2) has any application.

In the first place, it is extremely doubtful whether the earlier darkhasts were for the same relief. The relief sought in those darkhasts was for the execution of the decree of 12-2-1935. The relief sought In the darkhast under appeal is for the execution of the decree of 26-11-1936. But the more serious difficulty is that Section 14(2) re-Iqulres the prosecution of the earlier proceedingin good faith. Now, 'good faith' as contemplated by this sub-section is not the same good faith as contemplated under the Bombay General Clauses Act. We have a special definition of 'good faith' in the Limitation Act and the definition is

'Nothing shall be deemed to be done in goodfaith which is not done with due care andattention.'

When we turn to the definition of 'good faith' in the General Clauses Act, the definition is

'A thing shall be deemed to be done in goodfaith where it is in fact done honestly, whetherit is done negligently or not.'

Therefore, while the Bombay General Clauses Act emphasises 'honesty' and ignores the factor of negligence, the Limitation Act emphasises not 'honesty' but the fact that due care and attention has been given to the prosecution of the earlier application. I would agree with Mr. Justice Bavdekar that on the facts of this case it is impossible to accept the position that if care and attention had been taken, the party could not have realised that he should have obtained the necessary transfer certificate in respect of the subsequent decree and that he should have attempted to execute the subsequent decree and not the earlier decree which had ceased to exist. Further, B. 14(2) also requires that the earlier application should not be tenable by reason of defect of jurisdiction in the Court to which the earlier application was presented. But in this case, apart from the question of any defect in jurisdiction in the Poona Court, the application was not maintainable at all because the application was to execute a decree which was nonexistent.

Therefore, even if the Poona Court had jurisdiction, the Poona Court could not maintain an application for execution in respect of a decree which could no longer be executed. Therefore, in one sense it is not true to say that the appellant was prosecuting his earlier darkhasts in a Court without jurisdiction. He was in fact prosecuting darkhasts which were not maintainable at all on merits and were not in accordance with law. If the darkhasts were not in accordance with law, then no question of Section 14(2) can possibly arise. Therefore, whichever way one looks at it, the position is clear that the present application to execute the decree of 26-11-1936, inasmuch as it was presented long after the period of limitation which is three years, is barred by limitation. Limitation cannot be saved because in our opinion the earlier darkhasts cannot be looked upon as applications for execution in accordance with law as requires by Article 182(5).

12. We are, therefore, of the opinion that Eavdekar J. was right in the view that he took. The result is that the appeal fails and must be dismissed.

13. Mr. Jape tells us that the judgment-debtor in this case is a pleader. The law of limitation is as much open to a pleader as to 'any other litigant in this country, but we do expect a slightly higher ethical standard from a practitioner in our Courts than from any other litigant, and Mr. Desal very fairly and very rightly told us that he has done his best to persuade his client to satisfythe decree which was passed against him to the extent that he was capable of doing, and although we have delivered this judgment and we have held that the darkhast is barred by limitation, Mr. Desai has assured us that he will still persuade his client to pay some amount in satisfaction of the decree.

Mr. Jape says he is prepared to accept any amount that the pleader would pay. We hope that although he may have scored a triumph in getting the darkhast dismissed, he will think more of his own character and pay some amount to the decree-holder so as to satisfy him that lawyers can rise above questions of limitation. Limitation is after all a technical plea and there is really no defence on merits to this darkhast. As we said before, it is the fault of the decree-holder that he did not pursue his remedy for a long time although the decree was passed as far back as 1936, and we are now in 1954.

14. There Will be no order as to costs of the appeal.

15. Order accordingly.


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