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Rango Ramacharya Katti Vs. Gopal Narayan Kulkarni - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 93 of 1937
Judge
Reported inAIR1939Bom75; (1938)40BOMLR1278
AppellantRango Ramacharya Katti
RespondentGopal Narayan Kulkarni
DispositionAppeal allowed
Excerpt:
civil procedure code (act v of 1908), section 48-execution of decree-execution stayed till appointment of receiver-darkhast filed twelve years after date of decree-whether execution barred-indian limitation act (ix of 1908), section 15.;where a decree grants reliefs some of which are not executable on the date of the decree, time under section 48 of the civil procedure code, 1908, in respect of all the reliefs runs from the date of the decree.;khulna loan company v. jnanendra nath bose (1917) 22 c.w.n. 145, p.c., banku behari chatterji v. naraindas dutt (1927) l.r. 54 i.a. 129 : s.c. 29 bom. l.r. 850, nawab shuja-ul-mulk bahadur v. umir-ul-umra bahadur (1925) i.l.r. 48 mad. 846 and swaminatha odayar v. thtagarajaswami odayar (1927) i.l.r. 50 mad. 5, followed.;narhar raghunath v. krishnaji..........relating to the same temple which had been filed in 1917 and was then pending. the date of the high court decree was march 12, 1918. the charity suit was decided in april, 1922, and a committee of management was appointed sometime after june 29, 1922. steps to recover the money from defendant no. 1 having failed, the darkhast which has given rise to this appeal was filed by the chairman of the managing committee on june 8, 1934, against the two brothers of defendant no. 2(who had died in the meantime).2. the objections taken to the darkhast were (1) that it was barred under section 48 of the civil procedure code, being more than twelve years from the date of the high court decree, (2) that the chairman of the managing committee was not competent to present the darkhast, the rules.....
Judgment:

Broomfield, J.

1. This is a second appeal in execution proceedings. The material facts are as follows. In 1912 there was a suit brought by two panchas of a certain temple against two persons claiming to be vahiwatdars of the temple to recover moneys alleged to have been wrongfully appropriated. A decree for the sum of Rs. 3,593 and interest was passed against the two defendants. It directed that the amount should be recovered first from defendant No. I by taking all legal steps against him, and the balance if any was to be recovered from defendant No. 2. This decree was substantially confirmed in appeal by the District Court and the High Court. But the High Court directed that execution should be stayed until a receiver was appointed in a suit under Section 92 of the Civil Procedure Code relating to the same temple which had been filed in 1917 and was then pending. The date of the High Court decree was March 12, 1918. The charity suit was decided in April, 1922, and a committee of management was appointed sometime after June 29, 1922. Steps to recover the money from defendant No. 1 having failed, the darkhast which has given rise to this appeal was filed by the chairman of the managing committee on June 8, 1934, against the two brothers of defendant No. 2(who had died in the meantime).

2. The objections taken to the darkhast were (1) that it was barred under Section 48 of the Civil Procedure Code, being more than twelve years from the date of the High Court decree, (2) that the chairman of the managing committee was not competent to present the darkhast, the rules framed under the scheme providing that the secretary was to file suits with the sanction of the chairman, (3) that defendant No. 2 was joint with his brothers, and as the property claimed in the darkhast had not been attached in his lifetime, it had passed by survivorship to the present defendants.

3. Both the lower Courts have held against the objectors on the first and third points, although they differed as to the extent of the property liable to be proceeded against. The trial Court dismissed the darkhast on the ground that it ought to have been presented by the secretary. In appeal the Assistant Judge differed and ordered that the darkhast should proceed against the deceased second defendant's one-third share in the property.

4. On the question of limitation the lower Courts have relied on Narhar Raghunath v. Krishnaji Govind I.L.R. (1912) 36 Bom. 368 : 14 Bom. L.R. 381 where it was held that the execution and application contemplated by Section 48 relate to a decree which is executable at that date in respect of the application made and execution sought, that the twelve years' period prescribed by the section runs only from the date when the decree becomes in all its parts ripe for execution, and that consequently when a decree directs the recovery of a mortgage debt by sale of the mortgage property and in case of deficit from other properties and from the defendants personally, time runs in respect of the latter relief from the date of sale and not from the date of the decree.

5. The Calcutta High Court took a different view in Khulna Loan Company v. Jnanendra Nath Bose 22 C.W.N. 145. and held that in the case of such combined mortgage decrees time runs in respect of all the reliefs from the date of the decree. The Privy Council on appeal affirmed the decree of the Calcutta High Court. Since then the Madras High Court in two cases, Nawab Shuja-ul-mulk Bahadur v. Umir-ul-umra Bahadur I.L.R. (1925) 48 Mad. 846 and Swaminatha Odayar v. Thiagarajaswami Odayar I.L.R. (1927) Mad. 5, has laid down the law in this sense and treated Aiyasamier v. Venkatachela Mudali I.L.R. (1916) Mad. 989, a full bench case which took the same view as Narhar Raghunath v. Krishnaji Govind, as impliedly overruled. In the Khulna Loan Company's case their Lordships did not give reasons and apparently the case is not reported in the authorised reports. But they affirmed the judgment of the Calcutta High Court and therefore presumably approved of the reasoning, and they have applied the same principle in Banku Behari Chatterji v. Naraindas Dutt I.L.R. (1927) Cal. 500 : L.R. 54 IndAp 129 : 29 Bom. L.R. 850. It was held there that the twelve years within which a mortgage decree can be enforced against the mortgagor personally runs from the date of the final decree, not from the time when the deficiency is ascertained by the sale of the mortgaged properties. Lord Phillimore said (p. 505) :-.it is suggested on his [appellant's] behalf, that he could not have a personal decree till all the mortgaged properties had been exhausted by sale. This is true, but it does not mean that he could first wait till just short of twelve years before selling and then take another period just short of twelve years for a personal decree.

This was a case under Article 183 of the Indian Limitation Act and not under Section 48 of the Civil Procedure Code, but I do not see that that makes any difference to the principle. In view of the authorities to which I have referred, we are of opinion that Narhar Raghunath v. Krishnaji Govind can no longer be regarded as good law.

6. In one respect the present case is distinguishable from all those which have been cited, viz. by reason of the fact that the High Court in confirming the decree in second appeal stayed execution until the appointment of a receiver in the suit under Section 92. It has been held that Section 15 of the Indian Limitation Act does not in any way control the operation of Section 48 of the Civil Procedure Code. This view was taken in Subbarayan v. Natarajan I.L.R. (1922) Mad. 785. The learned Judges who decided that case differed as to the grounds of their decision. Mr. Justice Spencer went on the ground that ' prescribed ' in Section 15 means prescribed by the Indian Limitation Act itself. Mr. JusticeRamesam did not accept that view. He held that the period prescribed by Section 48 is not strictly a period of limitation at all. But the learned Judge, as he admitted, felt considerable difficulty over the point and I must say with all deference that his reasoning does not appear to be very convincing. The point has been referred to also in Jurawan Pasi v. Mahabir Dhar Dube I.L.R. (1918) All. 198, where the Court said (p. 203) :-.it seems pretty clear that the word 'prescribed' in this section refers to periods prescribed by the Limitation Act. Section 48 of the Code of Civil Procedure does not in a strict sense provide a 'period' of limitation. It is an enactment which forbids an order for execution upon a decree which is more than twelve years old.

I must confess that I cannot see that there is much difference between an enactment which forbids execution upon a decree more than twelve years old and one prescribing a maximum period of limitation of twelve years.

7. In both these cases it has been stated that Section 48 contains an unqualified prohibition and it seems to be implied that in that way it differs from the provisions of the Indian Limitation Act. But why Section 48 should be regarded as more unqualified in its operation than, for instance, Section 15 of the Indian Limitation Act is not very clear. Mr. Justice Ramesam in Subbarayan v. Natarajan held that the provisions of the Indian Limitation Act do in some respects control the operation of the Civil Procedure Code, and it was admitted in the argument before us that Section 48 is at any rate qualified by the operation of Section 4 of the Indian Limitation Act. On general principles there would seem to be no reason why Section 15 should not apply so as to extend the period prescribed by Section 48 of the Code and we are not satisfied as at present advised that it does not apply.

8. It is not really necessary however to decide that point in this case because apart from the question whether Section 15 of the Indian Limitation Act applies, Section 48 of the Code deals with decrees and the execution thereof and obviously therefore must relate to a decree which is capable of execution. The decree as passed by the High Court in second appeal was not capable of execution at all on its date and Section 48 therefore could not be said to apply until it became a decree capable of execution, that is to say, until the appointment of a receiver or some other person who had authority to execute. This view seems to me to be in accordance with the rule laid down by the Privy Council in Rameshvar Singh v. Hameshwar Singh (1920) 40 M.L.J. 1 : 23 Bom. L.R. 721, p.c., a case which is referred to in Nawab Shuja-ul-mulk Bahadur v. Umir-ul-umra Bahadur I.L.R. (1925) Mad. 846. It was there held that in the case of a decree not executable, except on the happening of a particular contingency, time will not begin to run until that contingency occurs. It was a decision under Article 182 of the Indian Limitation Act, but in my opinion: the same principle would apply to cases under Section 48.

9. The learned Assistant Judge has held that the decree in this case did not become capable of execution until after June 29, 1922. If that was so in fact we think the darkhast would have been in time, but unfortunately for the. decree-holder there seems to be no justification for this finding. It is true that the decree) in) suit No. 10 of 1917, which was the suit under Section 92, called for applications from persons desirous to be members of the managing committee to be made on or before June 29, 1922, and there is no doubt that the managing committee appointed under the scheme cannot have been; appointed until after that date. But the High Court did not say that the decree was only to be executed by the managing committee ; execution was only stayed until1 the appointment of a receiver. The Assistant Judge appears to have thought that no receiver was appointed. It is, however, by no means clear that that was the case. The plaint in the suit under Section 92 mentioned the fact that the temple property was in the hands of a receiver appointed by the Athni Court, i.e. the Court which tried the original suit by the panchas against the vahiwatdars. It may well be, however, that the Court trying the suit under Section 92 appointed a receiver of its own or confirmed the appointment made by the Athni Court. In any case it was for the decree-holder to produce evidence sufficient to establish clearly that no receiver was appointed and that there was no other person capable of executing the decree before the time when the managing committee was appointed. This has not been done. The point was not taken at all in the trial Court. It was only raised in the course of arguments before the Assistant Judge and even then it appears to have been referred to only as a side argument, as the learned Assistant Judge says.

10. It has been brought to our notice that the papers on the record show that one darkhast was actually filed in the year 1919 and a second darkhast in the year 1920. That being so, the contention that the decree did not become executable until after June 29, 1922, is manifestly unsustainable. We must hold that the execution of this darkhast is barred by time.

11. We agree with the learned Assistant Judge in holding that there is no substance in the objection to the darkhast on the ground that it was presented by the secretary of the committee. The real decree-holder is the idol. The right to bring a suit or to take other legal proceedings on behalf of an idol is by law vested in the shebait or manager : Maharaja Jagadindra Nath Roy Bahadur v. Rani Hemanta Kumari Debi . In this case we have a committee of management. But there is no reason why the Court should not permit the chairman of the committee to bring a suit or file a darkhast on behalf of the committee.

12. The question what property would be affected by the darkhast is one of some little difficulty. It depends mainly on the importance to be attached to exhibit 29 which is a sale-deed by defendant No. 2 in favour of his two brothers in 1923. The defendants' case was that the family was joint and that they got the property claimed in the darkhast by survivorship. That case, however, is inconsistent with a sale of the interest of one of the coparceners to the others. Therefore, we think it would not be open to the defendants to claim the ownership of the property sold on the strength of this sale-deed which in fact they did not rely upon and which it is not shown to have been acted upon. Whether the lower Courts are right in interpreting this sale-deed as convincing evidence of a separation of interest between the three brothers is a point of more difficulty. On the whole we see no sufficient reason to differ from the view taken by the lower Courts. The point is no longer of any importance since we hold that the darkhast must be dismissed.

13. We therefore allow the appeal. The order of the trial Court will be restored. The appellant will get his costs in the Court of first appeal but he must pay his own costs and those of the respondent in this Court in accordance with the order passed on February 4, 1937.


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