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D.S. Apte Vs. Tirmal Hanmant Savnur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 357 of 1924
Judge
Reported inAIR1925Bom503; (1925)27BOMLR961
AppellantD.S. Apte
RespondentTirmal Hanmant Savnur
Excerpt:
.....dissented from. - - june 9, 1911. 5. i fail to see on what possible ground we could hold that that was not a subsequent order within the meaning of section 48 (1) (b): i think that the district judge had some excuse for following the decision in jurawan pasi v......of appeal, the question of limitation was raised at the commencement of the argument before the district judge. the respondent argued that as between the date of the decree and the date of the last application more than twelve years had elapsed, under section 48 of the civil procedure code there could be no further application now, on june 9, 1911, the subordinate judge made an order that the amount should be recovered by annual instalments of rs. 125 each, the first instalment to become due on february 1, 1912. in case of default to pay any, the whole to be recovered at once each instalment to carry interest at six per cent, per annum. the district judge, following the decision in jurawan pasi v mahabir dhar dube,(1) held that as that order was made by the subordinate judge sitting.....
Judgment:

Norman Macleod, Kt., C.J.

1. In this case a decree was passed on May 28, 1903, in the Subordinate Judge's Court. The final decree was passed by the High Court on September Section 1908. The plaintiff applied for execution on December 21, 1921. The opponent against whom this proceeding was instituted contended that the property sought to be attached and sold was not liable for the decretal debt on the ground that it was in his possession as the grandson of the surety of the principal debtor, This contention found favour with the Subordinate Judge, and accordingly the application was dismissed.

2. The judgment-creditor appealed, and although no question of limitation was raised in the grounds of appeal, the question of limitation was raised at the commencement of the argument before the District Judge. The respondent argued that as between the date of the decree and the date of the last application more than twelve years had elapsed, under Section 48 of the Civil Procedure Code there could be no further application Now, on June 9, 1911, the Subordinate Judge made an order that the amount should be recovered by annual instalments of Rs. 125 each, the first instalment to become due on February 1, 1912. In case of default to pay any, the whole to be recovered at once Each instalment to carry interest at six per cent, per annum. The District Judge, following the decision in Jurawan Pasi v Mahabir Dhar Dube,(1) held that as that order was made by the Subordinate Judge sitting as a Court of execution, it was not an order within the meaning of that word in Section 48 (1) (b) of the Civil Procedure Code. In that case it was held that the expression 'subsequent order' in Section 48 (1) (b) of the Code of Civil Procedure means a subsequent order made by the Court which made the decree and acting as that Court, and not an order of a Court executing the decree, that an order made by a Court executing a decree, allowing a judgment-debtor time to pay up the balance of the decretal money, would not be a subsequent order within the meaning of Section 48, and would not give a fresh period to the decree-holder to execute his decree, nor was an order merely giving time for payment an order staying execution or an injunction, so that the time so given could be excluded in computing limitation against the decree-holder. With great respect, I cannot see myself why the words 'any subsequent order' must be limited as if the words 'by the Court which passed the decree' were there. The words 'any subsequent order,' to my mind, mean, any order made by a competent Court. As the District Judge points out, any other construction would lead to this absurdity that there might be an order by a competent Court directing that the decree should be paid by instalments, with the result that when twelve years had expired, some of the instalments might still remain to be paid, even if there had been no default on the part of the debtor. It would certainly be an extraordinary interpretation to put on those words which might result in a creditor being deprived of his right to execute for the subsequent instalments if they were not paid.

3. It is not suggested in this case that the order of June 9,1911, was not made by a competent Court.

4. The present darkhast sets out the previous history of the decree. It recites the following order made in Darkhast No. 286 of 1908:-

The defendant No. 3 is examined. Having regard to all the circumstances I order that the amount Should be recovered by annual instalments of Rs. 125 each. First due on February 1, 1912. In case of default to pay any, the whole to be recovered at once. Each instalment to carry interest at six per cent, per annum from this date of recovery to be recovered along with the instalment. June 9, 1911.

5. I fail to see on what possible ground we could hold that that was not a subsequent order within the meaning of Section 48 (1) (b): I think that the District Judge had some excuse for following the decision in Jurawan Pasi v. Mahabir Dhar Dube I.L.R (1918) All. 198 as there was no decision of this Court on the same point. We allow the appeal, set aside the order of the District Judge dismissing the appeal before him, as that appeal was dismissed on a preliminary point, which was raised neither in the trial Court nor in the grounds of first appeal, and remand the appeal for further hearing before the District Judge. The appellant will be entitled to his costs in this Court.

Coyajee J.

5. I am of the same opinion.


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