Skip to content


Ramgopal Bhutada Vs. Sidram Aunayya - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 51 of 1938
Judge
Reported inAIR1943Bom164; (1943)45BOMLR234
AppellantRamgopal Bhutada
RespondentSidram Aunayya
DispositionAppeal allowed
Excerpt:
.....limitation-applicability of section 15, indian limitation act-construction of.;section 48 of the civil procedure code, 1908, is controlled by section 15 of the indian limitation act, 1908.;a decree was passed on november 24, 1923, and one of a series of darkhasts in execution was filed on october 30, 1930. the executing court ordered execution to issue, but the high court on appeal granted a stay order on february 6, 1932, which in effect continued up to december 20, 1932. a darkhast in execution of the decree was again taken out on december 13, 1935. it was contended that this darkhast was barred under section 48 of the civil procedure code. on the question whether the stay granted by the high court had the effect of extending the period of limitation :-;that section 15 of the indian..........an execution on the ground that it was barred by limitation under section 48 of the code of civil procedure. the decree under execution was passed on november 24, 1923, and the execution with which this appeal is concerned was the sixth of a series of executions and was taken out on december 13, 1935. prima facie it is barred by section 48 of the code of civil procedure, which says that, subject to certain exceptions, where an application to execute a decree has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from the date of the decree sought to be executed. in the fourth darkhast of the series presented on october 30, 1930, execution was ordered to issue by the executing court, and.....
Judgment:

Macklin, J.

1. This is an appeal under the Letters Patent against a decision of Mr. Justice N.J. Wadia dismissing an execution on the ground that it was barred by limitation under Section 48 of the Code of Civil Procedure. The decree under execution was passed on November 24, 1923, and the execution with which this appeal is concerned was the sixth of a series of executions and was taken out on December 13, 1935. Prima facie it is barred by Section 48 of the Code of Civil Procedure, which says that, subject to certain exceptions, where an application to execute a decree has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from the date of the decree sought to be executed. In the fourth darkhast of the series presented on October 30, 1930, execution was ordered to issue by the executing Court, and an appeal was preferred to the High Court by the judgment-debtors; and on February 6, 1932, a stay order was granted which in effect continued up to December 20, 1932-a period of about ten months. The present application for execution is nineteen days out of time, and the question for decision is whether the stay order has the effect of extending the period of limitation; in other words whether Section 48 of the Code of Civil Procedure is controlled by Section 15 of the Indian Limitation Act.

2. Section 15 of the Indian Limitation Act 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.

Mr. Justice N.J. Wadia followed a decision of the High Court of Madras, Subbarayan v. Natarajan (1922) I.L.R. 45 Mad. 785 in which it was held that Section 48 of the Code of Civil Procedure contains an unqualified prohibition (subject to certain exceptions mentioned in the section) against execution of certain decrees more than twelve years old, and that the section is not controlled by Section 15(1) of the Indian Limitation Act. No other authority seems to have been cited. before him. I feel some difficulty in regarding this decision as authoritative. The reasons for the decision, put shortly, are that the word 'prescribed' occurring in Section 15 of the Indian Limitation Act means 'prescribed by the first schedule of the Indian Limitation Act' and does not apply to any period of limitation laid down by any other Act. The other ground of the decision was that Section 48 of the Code of Civil Procedure does not prescribe a period of limitation at all in the strict sense. But the learned Judges composing the bench did not agree on the meaning of the word 'prescribed' in Section 15 of the Indian Limitation Act. Mr. Justice Spencer says 'Though the words 'in the schedule 'do not occur in this section or in Section 19, as they do in Sections 3 and 6, the word 'prescribed' can in applying the Act to suits under the general law refer to nothing else '. But though he gives no reasons for this statement, it is the only ground upon which he held that Section 48 of the Code of Civil Procedure is not controlled by the Limitation Act. Mr. Justice Ramesam on the other hand was strongly of opinion that the word 'prescribed' was not limited to periods of limitation prescribed by the Limitation Act. He bases his decision upon the possibility of using the phrase 'period of limitation' in two senses, a strict sense and a loose sense. He says that in the strict sense a period of limitation includes a time beyond which execution will be out of time and within which execution will be in time : and he points out that Section 48 of the Code of Civil Procedure prescribes a period of limitation beyond which execution will be out of time but does not provide (and indeed in view of the Limitation Act cannot provide) that all executions within that period will be within time. But with all respect this seems to me to be a distinction without any real difference.

3. In Rango v. Gopal : AIR1939Bom75 a question arising out of Section 48 came under consideration, and it was sought to bring execution within time by reason of an injunction that had been passed restraining execution of the decree until the appointment of a receiver in another suit which was then pending; and the trial Court held that on the evidence it must be taken that the receiver had not been appointed until some date falling within twelve years of the date of the execution. this Court criticised the reasoning of the decision in Subbarayan v. Natarajan and stated that on general principles there did not seem to be any reason why Section 15 should not apply so as to extend the period prescribed by Section 48 of the Code of Civil Procedure, and that the learned Judges as at present advised were not satisfied that Section 15 of the Indian Limitation Act did not apply. The case however was decided on another ground, so that these observations were strictly speaking obiter. We have been referred to three cases in which Subbarayan's case has been followed. They are Ganeshi Lal v. Imtiyaz Ali (1931) I.L.R. 7 Luck. 49 and Kirtyanand v. Pirthichand A.I.R. [1929] Pat. 597 and Tandavamurti v. Durgamba : AIR1928Mad1154 . But in none of these' cases were any reasons given, and in the second of them the approval given to Subbarayan's case was obiter.

4. There is however direct authority to the contrary in the decision of a full bench of the Allahabad High Court in Drigpal Singh v. Pancham Singh [1939] All. 647. The ground of the decision was that the words 'periods of limitation prescribed' were perfectly general and ought not to be confined to periods given in the schedule of the Indian Limitation Act and also that Section 48 of the Civil Procedure Code provided a 'period of limitation' such as is contemplated by Section 15 of the Indian Limitation Act. This decision therefore goes against both the grounds of the decision in Subbarayan's case. It was pointed out that while Sections 3 and 6 and 29 of the Indian Limitation Act refer to periods of limitation prescribed by the schedule to the Limitation Act, most of the general sections of the Limitation Act, including Section 15, do not refer to the schedule at all, but in general terms simply use the expression 'periods of limitation prescribed'; and the learned Judges thought that this could not be without significance and the omission of the words 'in the Schedule' or 'by the Schedule' was probably deliberate. On the other point the learned Chief Justice referred to Articles 181 and 182 of the schedule to the Indian Limitation Act, (the first of which speaks of applications for which no period of limitation is provided elsewhere in this schedule or by Section 48 of the Code of Civil Procedure, while the second refers to applications for the execution of a decree or order not provided for by Article 183 or by Section 48 of the Code of Civil Procedure), and he pointed out that so long as the Limitation Act referred to the provisions of Section 48 of the Code of Civil Procedure as providing a 'period of limitation ', it was unreasonable to suppose that Section 48 of the Code did not provide a period of limitation covered by Section 15 of the Indian Limitation Act, unless (which is impossible) it could be said that the words 'provide' and' 'prescribe' are not the same thing. It seems to me that this reasoning is unanswerable. The learned Judge also declined to accept the distinction between a period of limitation in a loose sense and a period of limitation in a strict sense drawn in Subbarayan's case. Another Judge composing the full bench, Mr. Justice Iqbal Ahmad, pointed out at least one anomaly which would result from holding that Section 48 of the Civil Procedure Code laid down a hard and fast rule which could not be controlled by Section 15. He assumed the case of a Hindu son filing a suit assailing the validity of a decree passed against his father and the family property, and execution of the decree being stayed by an injunction pending the suit, and the litigation not terminating until the period of twelve years was passed. In such a case it would be manifest injustice to apply the twelve years rule.

5. One more point was taken in this appeal and that was that the period of limitation for this particular execution began not with the date of the original decree in 1923 but in the year 1930. There was a cross suit which was decided by the trial Court eighteen months after the decree now under execution was passed. But pending that decision an agreement was arrived at between the parties providing that whoever obtained a decree for the larger amount should execute only for the excess. The litigation with regard to this second suit ended only in 1930, when the High Court decided the appeal; and in execution of that decree the High Court decided in appeal that the excess amount could only be ascertained after the final decree was passed and the final decree would be the decree passed in appeal, if any; and also that the period of limitation for taking out execution proceedings for recovery of the excess amount would run from the final decree. But even if the present execution is only for the excess amount, it is still an execution of the decree in the first suit, and I do not think that the fact of its being only for the excess amount will prevent the twelve years running from the date of the decree in the first suit.

In my opinion the appeal should be allowed and the order of the trial Court allowing execution to proceed should be restored, with 'costs in this Court and in the Court of first appeal.

Broomfield, J.

6. On the question whether Section 48 of the Civil Procedure Code is controlled by Section 15 of the Indian Limitation Act I expressed my opinion in Rango v. Gopal : AIR1939Bom75 . I am still of that opinion, which is now fortified by the decision of a full bench of the Allahabad High Court in Drigpal Singh v. Pancham Singh. [1939] All. 647. The matter has been exhaustively considered there, and I shall only say with respect that I agree substantially with the reasoning of the judgments in that case.

7. I do not think that Section 29 of the Indian Limitation Act need really cause any difficulty. It is curious no doubt that we have there express provisions as to the application of the general sections of the Indian Limitation Act to special and local Acts and no mention is made of the Civil Procedure Code. But I am not satisfied that that has any bearing on the question whether Section 15 applies to Section 48 of the Code of Civil Procedure. If on a construction of Section 15 it appears to apply to Section 48, as we think it does, it is immaterial whether the extent of its application is or is not to be controlled by Section 29.

8. I may perhaps add that, even if our view is wrong and Section 15 cannot be said to apply strictly, I should myself be prepared to hold that the principle of the section must be applied on general grounds, just as this Court has applied the principle of Section 6 of the Indian Limitation Act on general grounds in Moro Sadashiv v. Visaji Raghunath I.L.R. (1891) 16 Bom 536 and Ramkrishna Vithal v. Ramchandra Dattatraya. I.L.R. (1930) 54 Bom. 776 In that connection I may mention Peary Mohun Biswas v. Anunda Charan Aich (1891) I.L.R. 18 Cal. 631 where an application for execution was presented beyond the due date because on the due date the Court was closed. The Court doubted whether Section 15 of the Indian Limitation Act of 1877 (corresponding to Section 4 of the present Act) could be made applicable, but held that in any case the decree-holder was entitled to the benefit of the rule upon the broad principle that where the parties are prevented from doing a thing in Court on a particular day not by any act of their own but by the act of the Court itself, they are entitled to do it at the first subsequent opportunity. It was pointed out that that principle had been followed in numerous cases. If execution is stayed by the Court, the effect is practically the same as if the Court were closed for the purpose of that particular proceeding. It is the act of the Court itself which prevents execution, and it would be unreasonable to make the party suffer.

9. However, as I say, I agree with my learned brother that Section 15 of the Indian Limitation Act may be applied in terms. The result is that the appeal succeeds.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //