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Virchand Kapurchand Vs. Marualappa - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberFirst Appeal No. 372 of 1941
Judge
Reported in(1944)46BOMLR666
AppellantVirchand Kapurchand
RespondentMarualappa
DispositionAppeal dismissed
Excerpt:
.....1908); section 15-exclusion of time-computation of period of limitation-stay of execution of whole decree-stay against portion of property not enough.;the provisions of section 15 of the indian limitation act, 1908, as to exclusion of time during which proceedings are suspended, apply only where the execution of a decree is stayed as a whole. the section does not apply where the execution of a decree is stayed as regards a portion of the property and the decree holder is at liberty to execute his decree against the remainder of the property.;kundo mal v. firm daulat ram [1940] a.i.r. lah. 75 followed.;raghunandan pershad v. bhugoo lal (1889) i.l.r. 17 cal. 268, bai ujam v. bat ruxmani (1913) i.l.r. 38 bom. 153 : s.c. 15 bom. l.r. 936, ghulam nasiir-ud-din v. harden prasad (1912) i.l.r...........under section 48 of the civil procedure code, limitation having begun to run from may 1, 1923. the decree-holder submitted a statement purporting to show that he was entitled to exclude certain periods. those periods he classified under four heads, two of which have now been relied on by the learned advocate for the appellant. the first comprises 'a period of about two and a half years, being the aggregate of the periods during which the first darkhast was wholly or partially stayed by the muddebihal court and the court of the joint subordinate judge at bijapur. it is contended that these periods must be excluded when calculating the period of limitation under section 15 of the indian limitation act, 1908, the provisions of which would apply, as held in ramgopat bhutada v. sidram.....
Judgment:

Sen, J.

1. The appellant is a decree-holder who is seeking to execute a decree obtained by him on July 19, 1921, in Suit No. 236 of 1921 in the Court of the First Class Subordinate Judge, Bijapur, against defendants Nos. 1 and 2. It was a decree for money and was passed in terms of an award. It made the decretal amount payable by instalments and directed that in default of payment of two instalments the whole amount should become recoverable at once. Two defaults in the payment of instalments were committed so that the whole amount became payable on May 1, 1923. Thereafter five darkhasts have been filed, the present one being the fifth, darkhast No. 333 of 1939 filed on May 29, 1939. The previous darkhasts were as under ;

Darkhast No. 106 of 1924 filed on March 10, 1924, and disposed of on June 26, 1928;

Darkhast No. 375 of i929 filed on August 7, 1929, and disposed of on June 26, 1931;

Darkhast No. 753 of 1931 filed on November 26, 1931, and disposed of on April 10, 1934; and

Darkhast No. 490 of 1934 filed on July 11, 1934, and disposed of on Jan. 19, 1939.

When the present darkhast was filed the question arose whether it was time-barred under Section 48 of the Civil Procedure Code, limitation having begun to run from May 1, 1923. The decree-holder submitted a statement purporting to show that he was entitled to exclude certain periods. Those periods he classified under four heads, two of which have now been relied on by the learned advocate for the appellant. The first comprises 'a period of about two and a half years, being the aggregate of the periods during which the first darkhast was wholly or partially stayed by the Muddebihal Court and the Court of the Joint Subordinate Judge at Bijapur. It is contended that these periods must be excluded when calculating the period of limitation under Section 15 of the Indian Limitation Act, 1908, the provisions of which would apply, as held in Ramgopat Bhutada v. Sidram Aunayya? The second item is another period of about two years during which the fourth darkhast No. 490 of 1934, was pending before the Collector. It is contended that under sub-paragraphs (1) and (3) of para. 11 of Schedule III of the Civil Procedure Code this period also must be excluded. The learned trial Judge has held against the decree-holder on both these points.

2. The darkhast was filed on May 29, 1939, and as the period of twelve years from May 1, 1923, was over on April 30, 1935, the decree-holder has to show that an aggregate period of four years and one month should be excluded from calculation. If, therefore, he succeeds in proving that he is entitled to two and a half years under one head and to two years under another head of his statement, exhibit 38, the present darkhast will be within time. In Ramgopal Bhutada v. Sidram Aunayya(1942) 45 Bom. L.R. 234 it was held that the provisions of Section 48 of the Code are controlled by Section 15 of the Act, which provides that in computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order shall be excluded. During the pendency of the darkhast No. 106 of 1924 there was an order of the Muddebihal Court made in civil suit No. 88 of 1925 staying execution, the order being passed on March 23, 1925, and finally withdrawn on March 19, 1926. Again, during the pendency of the same darkhast there was an order of the Bijapur Coast in civil suit No. 227 of 1925 staying execution to the extent of four-fifths of the property. That order appears to have been made at the instance of the sons of the first judgment-debtor. Again, during the pendency of the same darkhast there was an order made in civil suit No. 423 of 1926 staying execution to the extent of three-fifths of the property. That suit was also brought by certain sons of the first judgment-debtor. The period of the stay under the order in civil suit No. 227 of 1925 was from March 22, 1925, to December 5, 1926, i.e. a period of one year, eight months and twelve days, and the period of the stay under the last order above mentioned was from March 15, 1927, to January 31, 1928, a period of ten months and sixteen days. It is, however, contended on behalf of the respondents that of the three orders of stay the last two stayed not the whole of the pending execution but stayed it only to a limited extent, viz. to the extent of four-fifths of the property in one case and three-fifths of the property in the other, and that, therefore, it could not be said that in these cases the execution was stayed, that is, wholly stayed, which is what is meant by the expression ' execution of which has been stayed by injunction or order ' in Section 15 of the Indian Limitation Act.

3. Mr. Madbhavi on behalf of the appellant contended that it was enough that execution was stayed with regard to a major part of the property affected, and he has relied on Bai Ujam v. Bai Ruxmani I.L.R. (1913) 38 Bom. 153 Ghulam Nasmud-din v. Hardeo Prasad I.L.R. (1912) All. 436 and Gurudeo Narayan Sinha v. Amrit Narayan Sinha I.L.R. (1906) Cal. 689 assupporting his argument. The first was a case in which on an application to execute a decree having been made against the defendant and her surety, the Court, on November 30, 1908, held that the surety was liable only for costs and therefore, directed the execution to proceed as to a part of the decree. The surety appealed, and pending the appeal, the execution of the decree was stayed from January 9 to February 18, 1909. Thereafter the decree-holder again applied to execute the decree. The lower Court held that the second application was barred by limitation, having been made more than three years after the date of the first application. It was held that the second application was within time, for the applicant was entitled to exclude the period, during which the execution of the decree had been stayed in computing the period of limitation for the second application. In the judgment there is an observation made by Shah J. with reference to the view taken by the lower appellate Court that the order of the Court of first instance made on November 30, 1908, directing execution to proceed as to a part of the decree related only to the recovery of costs and that deduction of time ought not to be made. Mr. Justice Shah observed that it was perfectly immaterial for the purposes of the point under consideration as to whether the order of November 30, 1908, related only to a part of the decree, and that if the period during which the execution of the decree had been stayed was excluded, the application was clearly within time. On reference to the facts of this case it seems to be clear that what was stayed from January 9 to February 18, 1909, was the execution of the whole decree and not any part of the decree. The order of November 30, 1908, no doubt related only to the recovery of costs, but that did not alter the fact that the execution of the whole decree was stayed on the surety having appealed. It seems to us, therefore, that the observation of Shah J. referred to above is not one which supports Mr. Mad-bhavi's contention in the present case.

4. Mr. Madbhavi has next relied on Ghulam Nasir-ud-din v. Hardeo Prasad. There in execution of a decree certain property was attached by the decree-holder. An objection having been taken to the attachment, it was disallowed. This was followed by a declaratory suit against the decree-holder, and an injunction was granted whereby the sale of the property was stayed. The suit terminated in June, 1907, but the injunction lasted until January, 1909, The next application for execution being made in April, 1910, it was held that it was within time and that it was not relevant that the decree-holder might possibly have obtained execution of the decree against other properties of his judgment-debtor, i.e. those which were not the subject-matter of the injunction whereby the sale of the attached property had been stayed. The ratio of this case was that a decree-holder is not bound to search out and proceed against all the property of which his judgment-debtor would stand possessed : as there was a stay with regard to the property against which the decree-holder wanted to proceed, the benefit of such stay must go to the decree-holder. That principle, it seems to us, does not apply to the facts of the present case where the decree-holder wanted to proceed against certain property and execution was stayed with regard to four-fifths or three-fifths of the same property ; and there was no question of his searching out and proceeding against any other property.

5. The third case, relied on by Mr. Madbhavi, was Gurudeo Narayan Sinha v. Amrit Narayan Sinha, That was a case in which the holder of a mortgage decree having applied for sale of the mortgaged property, the judgment-debtor's son, claiming a portion of the property, filed a suit and obtained an injunction for stay of the sale of the share claimed. Thereafter, excluding the son's share the property was put up for sale, but there being no bid, the darkhast was dismissed. On the withdrawal of the suit by the judgment-debtor's son the decree-holder renewed his application for sale of the entire property. When the judgment-debtor objected that as regards a three-fourths share in the property, which had previously been put up for sale, the application was barred by limitation, it was held that the last application of the decree-holder must be treated as a continuation of his former application and that the execution was not, therefore, barred by limitation. There the decree-holder did make a real effort to sell the three-fourths share of the property which was not affected by the stay order, but the circumstances were such that nobody could be expected to buy the said property ; and their Lordships observed (p. 692) :

Thus although the injunction operated prima facie only to postpone the sale of 1/4th share, it was effectual in preventing the decree-holder from selling the remaining share of the property and he was compelled to wait until the bar was removed before renewing the application, which had been virtually suspended in the meantime.

Mr. Madbhavi has relied on these remarks and contended that in the present case also the stay as regards a fraction of the property sought to be sold virtually operated as a stay with regard to the whole property. We do not think, in the absence of any evidence, that that is the only conclusion which is warranted by the circumstances of this case. There is nothing to show that the decree-holder could not have proceeded against the fractional share in the property which was not affected by the stay order, and we are unable to hold that considerations similar to those which applied in Gurudeo Narayan Sinha v. Amrit Narayan Sinha would apply to the facts of the present case.

6. In the notes under Section 15 of the Indian Limitation Act by Chitaley, 2nd Ed., under the heading 'Partial Stay of Execution', it is stated that the section contemplates an absolute stay of execution which renders the decree-holder incapable of taking out any execution of the decree, and it is pointed out, e.g. that a stay of execution in one particular mode is not the stay of execution within the meaning of the section if it is open to the decree-holder to execute his decree in any other mode, and that an injunction restraining a decree-holder from executing the decree for the principal does not necessarily debar him from realising the interest. There is, however, a reference to some cases where it seems to have been held that a stay of execution of a part of the decree or as against a particular property will nevertheless save limitation for the execution of the decree as a whole (Bai Ujam v. Bai Ruxmani, Nachiappa Chetty v. Maung Pe (1918) 46 I.C. 399 and Govindnath Choudhuri v. Basiruddin Mondal (1921) 64 I.C. 594 and it is remarked that in view of the decision of the Privy Council in Kirtyanand Singh v. Prithi Chand Lal Chaudhury (1932) L.R. 60 I. A. 43 those decisions are not good law. The. point relating to Section 15 that arose in the Privy Council case appears to have arisen from an order passed by a Court executing a decree to the effect that the decree-holders were to wait for some time for payment. (That order was subsequently set aside having been in operation for about seven months. The appellants' contention was that the provision of Section 15 of the Indian Limitation Act applied with respect to that period of seven months. That contention appears to have been conceded by the High Court, but their Lordships of the Privy Council held that the order that the appellants were to wait could not be in any sense ' a stay of the execution by injunction or order.' It seems to us that the facts of that case can offer no guidance in the present case.

7. Mr. Hungund on behalf of the respondents has relied on Kundo Mal v. Firm Daulat Ram A.I.R. [1940] Lah. 75 and Raghunandun Pershad.v. Bhugoo Lall I.L.R. (1889) Cal. 268. In the Lahore case it was held that if execution is not completely and absolutely stayed, Section 15 does not come into play. That was a case where the sale of a particular house attached in execution was stayed, and it was held that it was open to the decree-holder to have other properties of the judgment-debtors attached and also to take action for their arrest, and that hence the decree-holder could not claim the benefit of Section 15. Their Lordships relied on several cases including Chanbasappa v. Holibasappa I.L.R. (1924) 48 Bom. 485 as supporting their view. In that case Macleod C. J. observed that Section 15 only applies to an absolute stay, and not to such a limited stay as would be ordered by the notice under Order XXI, Rule 53(1) (b). The facts in that case were not similar to those in our present case, but the Lahore High Court was no doubt right in relying on the dictum referred to as supporting the view that it took as to the operation of Section 15 of the Indian Limitation Act. In the present case, therefore, it seems to us that it was open to the decree-holder to apply for execution against the share of the first judgment-debtor which was one-fifth or of the two-fifths of the property which was not affected by the last stay order, Raghunandan Pershad v. Bhugoo tall, which is also relied on by Mr. Hungund, does not appear to us to be a case in point. There two persons having obtained a decree, certain property belonging to the judgment-debtor was attached whereupon a claim was made to the attached property by third parties and a two-thirds share therein was released by the Court executing the decree. Thereafter the decree-holders instituted a suit for a declaration that the entire property was liable to be sold under their decree, and obtained a decree accordingly. The decree, however, was reversed by the first appellate Court which upheld the order releasing a two-thirds share of the property and that decree was affirmed by the High Court on appeal. Thereafter the decree-holder applied for execution of the decree in respect of the remaining one-third share. An objection having been raised that the application was time-barred, it was held that the last application was not a continuation of the original darkhast application, and that the institution of the suit by the decree-holders and the subsequent appeal to the High Court were not steps-in-aid of execution. It was remarked that the decree-holders had throughout been free to prosecute their application for execution against the one-third share which had not been affected by the order releasing a two-thirds share. The questions that arose in that case, however, were whether the last application was a continuation of the first application in execution and whether the institution by the decree-holders of their suit and the subsequent proceedings should be regarded as steps-in-'aid of execution; and it seems tous, therefore, that this case cannot be regarded as an authority on the question now before us.

8. With respect we hold that the decision in Kundo Mal v. Firm Daulat Ram was correct, and that if the principle of that decision is accepted, it would not be possible to exclude the periods affected by the stay orders in civil suit No. 227 of 1925 and civil suit No. 423 of 1926, i.e. the decree-holder would not be entitled to exclude an aggregate period of over two years. That being so, it seems to us unnecessary to go into the merits regarding the period for which darkhast No. 490 of 1934 was pending before the Collector, because even if we were to decide on that point in favour of the appellant, the aggregate period which the appellant will be entitled to exclude would fall short of the period of four years and one month which must be excluded from calculation before the present darkhast can be found to be in time.

9. We must, therefore, hold that the decision of the lower Court was correct, and the appeal will be dismissed with costs.


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