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Brijmohandas Damodardas Vs. Sadashiv Laxman Naik - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 413 of 1937
Judge
Reported inAIR1940Bom5; (1939)41BOMLR1190
AppellantBrijmohandas Damodardas
RespondentSadashiv Laxman Naik
DispositionAppeal dismissed
Excerpt:
.....order xxi, rules 16 and 6(c) - decree-transfer of decree to another court for purpose of execution-decree-holder dying before filing darkhast-darkhast filed by legal representatives without obtaining order of court passing decree-effect of-procedure-indian limitation act (ix of 1908), sections 2(7) and 14-proceeding contrary to clear provision of law-whether such proceeding can be regarded as being in good faith-'good faith,' meaning of.;when a decree is transferred to another court and the decree-holder dies before starting execution proceedings in that court, his legal representatives cannot institute execution proceedings in that court until they obtain an order under order xxi, rule 16, civil procedure code, 1908, from the court which passed the decree recognising them as the legal..........decree was passed on july 26, 1932, and the certificate of non-satisfaction was handed over to the decree-holder gopaldas on august 8, 1932. before gopaldas presented an application for the execution of his decree in the parner court under order xxi, rule 10, of the code of civil procedure, he died on november 22, 1932. nothing was done for nearly two years, and on august 18, 1934, the brother and sons of gopaldas, claiming to be his legal representatives, presented darkhast no. 423 of 1934 in the parner court to recover the decretal amount in execution of the decree. the respondents were served with notices and they put in their written statement on march 30, 1935, contending that they were agriculturists and as such not liable to be arrested in execution of the decree. before the.....
Judgment:

Lokur, J.

1. One Gopaldas Damodardas obtained a money decree against the respondents in the Court of the First Class Subordinate Judge at Ahmednagar on October 1, 1930. When the decretal amount fell due, he made an application to that Court on July 11, 1932, to have the decree transferred to the Court of the Second Class Subordinate Judge at Parner for execution. The order transferring the decree was passed on July 26, 1932, and the certificate of non-satisfaction was handed over to the decree-holder Gopaldas on August 8, 1932. Before Gopaldas presented an application for the execution of his decree in the Parner Court under Order XXI, Rule 10, of the Code of Civil Procedure, he died on November 22, 1932. Nothing was done for nearly two years, and on August 18, 1934, the brother and sons of Gopaldas, claiming to be his legal representatives, presented darkhast No. 423 of 1934 in the Parner Court to recover the decretal amount in execution of the decree. The respondents were served with notices and they put in their written statement on March 30, 1935, contending that they were agriculturists and as such not liable to be arrested in execution of the decree. Before the question of their status was decided, they put in another application (exhibit 62) on August 24, 1935, contending that as the appellants had not obtained an order from the Court which passed the decree recognising them as the legal representatives of the deceased decree-holder, they had no right to execute the decree in the Parner Court. Before this application was put in by the respondents, the appellants had made an application to the Court of the First Class Subordinate Judge at Ahmednagar on August 8, 1935, requesting that the certified copy of the decree and the certificate of transfer of the decree should be called back from the Parner Court and their names should be substituted as the legal representatives of the deceased decree-holder both in the decree and in the certificate. The Parner Court framed an issue as to whether it had jurisdiction to hear the appellants' application for execution, and holding that as the appellants had obtained no order under Order XXI, Rule 16, from the Court which passed the decree, they had no right to institute the execution proceedings. It dismissed their darkhast with costs. That order was upheld in appeal by the learned District Judge of Ahmednagar on the same ground. The application under Order XXI, Rule 16, was granted by the First Class Subordinate Judge of Ahmednagar, who ordered that the names of the appellants should be shown as the legal representatives of the deceased Gopaldas Damodardas in the decree. Against that order the judgment-debtors appealed and the learned District Judge held that the application made by the appellants was not in the proper form, that they should have made a proper application for execution of the decree and not merely for the substitution of their names as the legal representatives of the deceased, and that that application was incompetent. The appeal was, therefore, allowed and the order passed by the lower Court was set aside. These two second appeals are presented by the legal representatives of the decree-holder Gopaldas, one from the order passed by the learned District Judge confirming the order of the Second Class Subordinate Judge of Parner, and the other from the order of the learned District Judge setting aside the order passed by the First Class Subordinate Judge of Ahmednagar.

2. In the former appeal (S.A. 413 of 1937) it is urged that as the judgment-debtors did not object to the darkhast proceedings started by the appellants in their written statement (exhibit 7), they should be deemed to have waived their right to object to their names being brought on the record by the Parner Court, and also that in any case the Parner Court should have stayed the proceedings in order to enable the appellants to obtain the necessary amended certificate from the Court of the First Class Subordinate Judge at Ahmednagar and should not have dismissed the darkhast.

3. The procedure to be followed by the legal representatives of a deceased decree-holder is now well settled. It is not disputed that a legal representative of a deceased decree-holder is to be deemed as a transferee of the decree by operation of law, and as such is entitled to apply for the execution of the decree to the Court which passed it under Order XXI, Rule 16, Civil Procedure Code. Order XXI, Rule 10, provides-

Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent...to another Court then to such Court or to the proper officer thereof.

As held in Jasoda Deye v. Kirtibash Das I.L.R. (1981) Cal. 639 it is only the person appearing on the face of the decree as the decree-holder who is entitled to execution, unless it be shown by some other person under Order XXI, Rule 16, that he has taken the place of the decree-holder. 'Decree-holder,' as defined in Section 2, Sub-section (3), means any person in whose favour a decree has been passed or an order capable of execution has been made. The definition in the Code of 1882 included a transferee of a decree. But now the transferee of a decree or the heir of a decree-holder cannot present an application for its execution unless he first obtains an order under Order XXI, Rule 16, that he is the person entitled to execute the decree as the legal representative of the original decree-holder. It follows from this that when a decree is transferred to another Court and the decree-holder dies before starting the execution proceedings in that Court, his legal representatives cannot institute the execution proceedings there until they obtain an order from the Court which passed the decree under Order XXI, Rule 16, of the Civil Procedure Code. It was once thought that when a decree-holder dies during the pendency of the execution proceedings his legal representative cannot continue those proceedings, but must start fresh proceedings under Order XXI, Rule 16 : Palaniappa Chettiar v. Valliammai Achi I.L.R. (1926) Mad. 1. But that was overruled by the full bench of the Madras High Court in Venkatachalam Chetti v. Ramaswamy Servai I.L.R. (1931) 55 Mad. 352 and it was held that it was open to the legal representative of a deceased decree-holder to continue the execution proceedings already started by him. The same view was taken by this Court in Kacharabhai v. Kacharabhai, : (1931)33BOMLR818 where it was held that an application to execute a decree filed by the decree-holder can, on his death, be continued by his son and heir, provided the heir first obtained an order of the Court under Order XXI, Rule 16, of the Civil Procedure Code. In that case the legal representative of the deceased decree-holder had made an application to the Court to which the decree had been transferred for execution to be allowed to continue the darkhast proceedings after being brought on the record. The trial Court had rejected the application, but in appeal three months' time was granted to him to obtain an order under Order. XXI, Rule 16, from the Court which passed the decree and then to continue the darkhast which had been already filed by the deceased decree-holder. It is urged that on the same principle in this case also the Parner Court should have stayed the execution proceedings and allowed the appellants time to obtain the necessary order under Order XXI, Rule 16, from the Ahmednagar Court. But in that case the deceased decree-holder had already started the execution proceedings, and it was perfectly within the discretion of the executing Court to stay the proceedings and wait until the legal representative of the deceased came forward to proceed with the darkhast. But here the decree-holder Gopaldas did not take any steps to execute the decree after it was transferred to the Parner Court. It was after his death that the present appellants presented the darkhast in the Parner Court without obtaining any order under Order XXI, Rule 16, from the Ahmednagar Court which had passed the decree. As observed by the learned Chief Justice in Raghunath Govind v. Gangaram Yesu I.L.R. (1923) 47 Bom. 643:-

.the assignee or transferee of the decree cannot continue any proceedings previously commenced, nor can he institute any fresh proceedings for the execution of the decree, unless he makes an application under Order XXI, Rule 16 to the Court which passed the decree. That application will be heard by the Court, not as a Court executing the decree, but as a Court which passed the decree, and it seems clear to me that until an order is made by the Court which passed the decree that execution may proceed at the instance of the transferee, it is not open to the transferee to execute the decree, nor is there any Court which is executing the decree.

At p. 651, Crump J. observed:-

It seems to me that where a Court has to deal with an application on the notice under Order XXI, Rule 16, the question which arises is a preliminary question, that is to say, whether the person who comes forward as assignee is or is not entitled to execute the decree, and until that question has been disposed of, no question of execution can arise, and, therefore, there is no Court at that stage which can be termed 'the Court executing the decree'.

The principle laid down in this case was approved of and followed in Ganpaya Narnappa v. Krishnappa : AIR1924Bom394 .

4. The learned advocate for the appellants relied upon Shailendranath Ghosh v. Surendranath De I.L.R. (1929) Cal. 1137 and Manorath Das v. Ambika Kant Bose 13 C.W.N. 533. The ruling in Shailendranath Ghosh's case lays down that the legal representative of a deceased decree-holder must make an application under Order XXI, Rule 16, to the Court which passed the decree before he can proceed with the execution of the decree, and that an order for substitution of the legal representative for the original decree-holder cannot be made by the executing Court to which the decree has been transferred by the Court which passed the decree. But it further says that if the Court to which the decree is transferred for execution makes an order substituting the legal representative for the deceased decree-holder, that is an irregularity which can be waived by acquiescence. In that case, however, the deceased decree-holder himself had presented a darkhast in the Court to which the decree had been transferred for execution. When he died during the pendency of the execution proceedings the legal representatives were brought on the record in spite of the objection of the judgment-debtors. They did not appeal against that order at that time. When subsequently the objection was repeated, it was held that they had waived their right. So in that case the darkhast proceedings were not bad from the inception. As I have said, it is open to the Court to which the decree is transferred to keep the darkhast pending until an order under Order XXI, Rule 16, is obtained by the legal representatives. In the present case, however, the legal representatives themselves instituted the proceedings without obtaining such an order, and hence there is no question of waiver on the part of the judgment-debtors.

5. The ruling in Manorath Das' case is more in point. But that ruling is apparently in conflict with the view taken by a division bench of this Court in Raghunath Govind v. Gangaram Yesu I.L.R. (1923) 47 Bom. 643. In Manorath Das' case the executors under a will of the deceased had obtained a decree on behalf of the legatee. After the legatee attained majority he took over charge of the estate and presented a darkhast in the Court to which the decree had been already transferred at the instance of the executors. It was contended that, as the legal representative of the decree-holder, he should have first obtained an order under Order XXI, Rule 16, from the Court which passed the decree. But he was allowed time to do so, and when he produced such an order when the darkhast was pending, it was held that the order related; back to the date when he became entitled to execute the decree as the legal representative of the decree-holder, and, therefore, the previous proceedings became legal on the production of the order. But the passage already quoted from Raghunath Govind v. Gangaram Yesu shows that unless an order under Order XXI, Rule 16, is obtained by the legal representative he has no right to institute the execution proceedings. I am bound to follow this decision, and therefore the darkhast which was started by the appellants in the Parner Court must be held to be bad from its inception, and cannot be legalised by any waiver on the part of the judgment-debtors or by the production of an order that may be subsequently obtained under Order XXI, Rule 16, from the Court which passed the decree. Hence the Parner Court was not bound to stay the proceedings in order to enable the appellants to obtain such an order from the Ahmednagar Court. The darkhast was rightly thrown out, and this appeal must be dismissed with costs.

6. As regards the other appeal (S.A. 425 of 1937), the lower appellate Court has held that the application made by the appellants to the Court of the First Class Subordinate Judge at Ahmednagar should have been in the form of an application for execution under Order XXI, Rule 16. This may not be absolutely necessary when a decree is transferred to another Court for execution, and the copy of the decree and the certificate of non-satisfaction have already been sent to the transferee Court. The legal representatives of the deceased decree-holder have no intention to execute the decree in the Court which passed the decree, and yet the application under Order XXI, Rule 16, must be made to that Court. It is not, therefore, right to say that they must make an application for execution even though the decree has already been sent to another Court for the purpose of execution. Under Order XXI, Rule 6, the Court sending a decree for execution must send three documents, viz. a copy of the decree, a certificate of non-satisfaction or part satisfaction, and a copy of any order for the execution of the decree or, if no order has been made, a certificate to that effect. This last includes an order passed under Order XXI, Rule 16. Hence if a decree is once transferred to another Court for execution and the decree-holder who obtains such a transfer dies, the proper remedy for his legal representatives is to seek an order under Order XXI, Rule 16, from the Court which passed the decree, and have that order remitted to the Court to which the decree is transferred for execution under Order XXI, Rule 6(c). But the appellants made an application to the Ahmednagar Court to have the copy of the decree and the certificate of transfer amended. As observed in Bhikaji v. Dattatraya (1900) 2 Bom. L.R. 888 'the Civil Procedure Code contains no provision under which a representative of a deceased decree-holder can have his name entered on the record when nothing remains to be done under the decree beyond its execution.' If the application under Order XXI, Rule 16, is granted by the Court which passed the decree, it may make an endorsement of that order on the decree and send a copy of the order along with the other papers to the Court to which the decree is transferred for execution. It is after such an order is passed that the legal representatives are clothed with the status of decree-holders and are then empowered to institute execution proceedings in the Court to which the decree is transferred. Hence, technically speaking, the application made by the appellants to the Ahmednagar Court is not in the proper form. Assuming that they did really intend to ask for the relief to which they were entitled under Order XXI, Rule 16, still it has to be considered whether the decree was executable on the date on which they made the application. That a question like this has to be considered before an order is passed under Order XXI, Rule 16, is clear from the ruling in Raghunath v. Gangaram. In that case when the assignee of a decree made an application under Order XXI, Rule 16, the judgment-debtor contended that the decree had been satisfied as the decretal amount had been paid to the original decree-holder. The payment had not been certified to the Court as required by Order XXI, Rule 2. Yet it was held that the Court hearing the application under Order XXI, Rule 16, was a 'Court which passed the decree' and not an executing Court, that it was open to the judgment-debtors to contend and prove in those proceedings that the amount due under the decree had been paid out of Court, and that if the decree was proved to have been already satisfied, then the assignee was not entitled to any order in his favour under Order XXI, Rule 16. Similarly, if the decree sought to be executed has ceased to be capable of execution by being time-barred, then the appellants are not entitled to have an order passed in their favour under Order XXI, Rule 16. This point was considered by the Ahmednagar Court, and it held that the decree was still in time by reason of the darkhast proceedings taken by the appellants in the Parner Court. Gopaldas got the decree transferred to the Parner Court on July 26, 1932, and, therefore, a darkhast should have been filed before July 26, 1935. Gopaldas died before the appellants presented the darkhast unauthorisedly on August 18, 1934, without obtaining an order under Order XXI, Rule 16. They made the present application to the Ahmednagar Court on August 8, 1935, more than three years after the previous order about the transfer of the decree to the Parner Court was passed. Hence, prima facie, the decree had become time-barred before August 8, 1935. It is, however, contended that under Section 14 of the Indian Limitation Act, in computing the period of limitation, the time during which the appellants were prosecuting the darkhast in the Parner Court in good faith should be excluded. Section 14, Clause (2), of the Indian Limitation Act, says:-

In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

Although the parties to the darkhast proceedings in the Parner Court were the same as the parties to the proceedings under Order XXI, Rule 16, before the Ahmednagar Court, yet the reliefs claimed in the two proceedings were different. In the Parner Court the appellants wanted to execute the decree itself; whereas in the Ahmednagar Court the relief asked for by them was to have their names substituted in place of the deceased decree-holder. It is argued that the appellants had presented the darkhast in the Parner Court in good faith believing that they had a right to do so. The expression 'good faith' has a special meaning in the Indian Limitation Act. Section 3(20) of the General Clauses Act, 1897, provides that a thing shall be deemed to be done in 'good faith', where it is in fact done honestly, whether, it is done negligently or not. But Section 2(7) of the Indian Limitation Act says that nothing shall be deemed to be done in good faith which is not done with due care and attention. As held in S.R.M.M.A. Firm v. Maung Po Saung I.L.R. (1929) Rang. 466 proceeding contrary to a clearly expressed provision of law cannot be regarded as prosecuting another civil proceeding in good faith in the sense in which the words 'good faith' are defined in the Act. In that case a person against whom an order was passed under Order XXI, Rule 63, of the Civil Procedure Code, instead of bringing a suit, applied for a revision of the order, and when that application was rejected, he filed a suit when it was time-barred. It was held that he was not entitled to the exclusion of the period during which he was prosecuting his application for revision. On the principle that gross negligence negatives good faith, it was held in Ghishulal Ganeshilal v. Gambhirmal Pandya I.L.R. (1934) Cal. 510 that failure to inquire whether the necessary leave of Court had been granted, though applied for, was held to be such gross negligence as to deprive the plaintiff of the benefit of Section 14 of the Indian Limitation Act. In the present case also the applicant recklessly disregarded the provisions of Order XXI, Rule 16, of the Civil Procedure Code, and started to execute the decree without any authority from the Court which passed it. Hence, I do not think that the appellants are entitled to the exclusion of the time spent by them in prosecuting the darkhast in the Parner Court. The decree was, therefore, time-barred on the date on which they made the application to the Ahmednagar Court, and, on the principle laid down in Raghunath Govind v. Gangaram Yesu, they are not entitled to an order allowing them to execute the decree under Order XXI, Rule 16, of the Civil Procedure Code. This appeal also must, therefore, be dismissed.

7. The respondents have put in cross-objections claiming their costs from the appellants. The lower appellate Court has disallowed the costs on equitable grounds. Since the appellants have been deprived of the benefit of the decree obtained by Gopaldas owing to wrong legal advice, I do not think that I should interfere with the discretion exercised by the lower appellate Court.

8. Both the appeals are dismissed with costs. The cross-objections in both the appeals are dismissed with costs.


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