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Vyasrao Hanmantrao Vs. Ramchandra Hanmant - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 652 of 1944
Judge
Reported inAIR1945Bom489; (1945)47BOMLR434
AppellantVyasrao Hanmantrao
RespondentRamchandra Hanmant
Excerpt:
indian limitation act (ix of 1908), article 182, expln. i, clause (5) - decree against judgment-debtor-execution against him alone-subsequent execution against his surety whether barred though more than three years after decree-civil procedure code (act v of 1908), section 145.;a decree obtained against a judgment-debtor and sought to be executed against him alone can subsequently be executed against his surety also even though more than three years have elapsed since the passing of the decree.;in article 182 of the indian limitation act, 1908, explanation i was necessitated by the realisation where there are more than one decree-holders or judgment-debtors, especially where the decree distinguishes portions of the subject-matter as payable or deliverable to or by such parties doubts may..........there seems to be no reason, therefore, why when a decree is sought to be executed against such a surety article 182 at the limitation act should not apply. the beginning of that article reads thus:description of application. period of limitation.for the execution of a decree three years, or, where a certified or order of any civil court the decree or order has been not provided registered,six yearsfor by article 183 or section 48 of thecode of civil procedure, 1908 10. it is difficult to see why, because explanation i deals with cases of more than one decree-holders and judgment-debtors, article 182 should be deemed to be confined to applications for execution of decrees against judgment-debtors only. that explanation was apparently necessitated by the realisation where there were more.....
Judgment:

Sen, J.

1. This second appeal arises out of darkhast proceedings. Five persons obtained a decree in 1928 for possession and mesne profits in the Court of the Joint Subordinate Judge of Bijapur against certain judgment-debtors. The judgment-debtors appealed to the District Court and applied for stay of execution Under Order XLI, Rule 5, of the Code of Civil Procedure. Stay was granted on the present respondent's standing surety for the due satisfaction of the decree by the judgment-debtors in case the decree was confirmed or varied by the appellate Court. The decree was confirmed on appeal. The decree-holders filed three darkhasts in 1930, 1932 and 1935 in none of which execution was sought against the surety. In the present darkhast filed in 1939 execution is sought against the legal representatives of defendant No, X and the surety respondent. The main question raised was whether the present darkhast was in time against the surety. The trial Court came to the conclusion that as no darkhast had been filed against the surety before, and as he could not be treated as a joint judgment-debtor along with the other defendants, as held in Narayan v. Timmaya I.L.R (1906) Bom. 50 : 8 Bom. L.R. 807 the present darkhast was not in time as against him. This view is opposed to the view taken by the High Courts of Madras, Lucknow, Allahabad and Lahore, a view which the learned Subordinate Judge thought to be more reasonable and equitable, but being bound by the Bombay decision in Narayan v. Timmaya he held in favour of the surety and dismissed the darkhast with costs as against him. The decree-holders appealed to the District Court, and the appeal was dismissed by the District Judge relying on Narayan v. Timmaya, which was followed in Yusuf Ali v. Papa Miya I.L.R (1923) Bom. 778 : 25 Bom. L.R. 810.

2. Mr. Hungund on behalf of the appellant-decree-holders has relied on the provisions of Section 145 of the Code of Civil Procedure and Section 128 of the Indian Contract Act and contended that though the surety is not in the position of a joint judgment-debtor within the meaning of Explanation I to Article 182 of the first schedule to the Indian Limitation Act, the previous applications for execution save limitation as against the surety under Clause (5) of the said article, as held in Badr-ud-din v. Muhammad Hafiz I.L.R (1922) All. 743 and Gangaraju v. Subbayya I.L.R (1934) Mad. 276 and that Narayan v. Timmaya can be distinguished from the present case. Alternatively, he has argued that Article 182 does not apply, the obligation of the surety arising under Section 128 of the Indian Contract Act which can be enforced (in what manner he has not exactly specified) under the provisions of Section 145 of the Civil Procedure Code. Mr. Murdeshwar on behalf of the respondent surety relies on Narayan v. Timmaya and certain decisions of the Rangoon, Patna and Calcutta High Courts which have followed that case and contends that that authority is binding for the decision on the point under consideration. He has further contended that the scope of Article 182(5) of the Indian Limitation Act is not wider than that of Explanation I thereto and that if the said Explanation does not cover the case of a surety, the surety is not also1 governed by Clause (5) of Article 182. 'The second paragraph of Explanation I to that article reads thus:

Where the decree or order has been passed severally against more persons than one, distinguishing portions of the subject-matter as payable or deliverable by each, the application shall take effect against only such of the said persons or their representatives as it may be made against. But, where the decree or order has been passed jointly against more persons than one, the application, if made, against any one or more of them or against his or their representatives, shall take effect against them all.

3. The case of Narayan v. Timmaya was decided under the old Code of 1882 and the facts in that case were that the decree-holder Narayan had brought a suit against one Timmaya and during the pendency of the suit attached a debt due to Timmaya from one Dajiba, the attachment being subsequently raised upon one Narasinha's giving surety before the decree for payment of the amount of the said debt into Court if so ordered. After Narayan had obtained a decree against Timmaya, he filed a darkhast to execute his decree against the judgment-debtor alone, and thereafter filed several other similar darkhasts all within the time allowed. Eight or nine years after the decree he sought to; make the surety liable under the decree by filing a darkhast against him and against the judgment-debtor. The trial Court dismissed the darkhast as time-barred against the surety and this order was confirmed on appeal by the District Judge. In the second appeal filed in the High Court it was contended1 that the surety could be proceeded against under Section 253 of the Code of Civil Procedure of 1882 (corresponding to the present Section 145) as the decree should be held to be a joint decree passed against both the judgment-debtor and the surety. It was on this one ground that it was contended that any step-in-aid of execution against the judgment-debtor would operate to keep alive the decree against the surety also. This contention was negatived and it was held that where there was a joint liability of the surety with the judgment-debtor to be deduced from the decree, the surety bond and Section 253 of the Code of Civil Procedure read together, the original decree cannot be treated as one 'passed jointly' against the judgment-debtor and the surety within the meaning of Explanation I to Article 179 of the Indian Limitation Act (corresponding to Explanation I to the present Article 182). Accordingly the appeal was dismissed. Section 253 of the Code of 1882 applied only to the case of a person who stood surety before the passing of the decree. It was, therefore, more restricted in its scope than the present Section 145, though the underlying principle in both is the same. Narayan v. Timmaya Was followed in Yusuf Ali v. Papa Miya, where there was no further discussion of the question involved. That case was also followed in K.S.E. Mohamed Cassim v Jamila Bee Bee I.L.R (1928) Ran. 334, in which two persons had signed a bond in an administration suit for the sum of Rs. 15,000 to be paid by them whenever ordered by the Court and upon default by the defendant in paying into Court such sum of money as he might be required to pay in the suit by the Court. The plaintiff having obtained a decree against the defendant applied for execution against him, but she could not execute the decree and subsequently she applied for a notice calling upon the defendant to pay the decretal amount in Court. This application also proved infructuous and the plaintiff then applied for notice against the sureties calling upon them to pay the sum of Rs. 15,000 in Court, They resisted the claim inter alia on the ground of limitation. The District-Court held that limitation was saved by the previous application of the plaintiff. The order of the District Court was reversed by the High Court on the point of limitation. On that point their Lordships followed Narayan v. Timmaya without referring to any other case and they remarked : 'So far as we are aware that decision has never been overruled and we accept it as good law.'

4. The Bombay decision was also followed in Raja Raghunandan Prasad Singh v. Raja Kirtyanand Singh Bahadur I.L.R (1928) Pat. 310. There having been previous applications against the judgment-debtor the appellant's argument was based on the language of Section 145 of the Civil Procedure Code and he contended that being deemed to be a party under that section involved being a joint judgment-debtor within the meaning of Article 182 of the Indian Limitation Act. This argument was negatived on the authority of Narayan v. Timmaya.

5. Mr. Murdeshwar has also relied on Raja Raghunandan Prasad Singh v. Raja Kirtyanand Singh Bahadur (1932) 36 C.W.N. 701 : 35 Bom. L.R. 526 and Birendra Chandra v. Tulsi Charon A.I.R [1926] Cal. 267. The case in Raja Raghunandan Singh v. Raja Kirtyanand Singh Bahadur did not raise the precise point now under consideration, and the application made to enforce the surety's bond was held by their Lordships to be within time on a proper construction of the bond itself, so that it was unnecessary to have recourse to Article 182. In Birendra Chandra v. Tutsi Charan it was held that where the sureties had made themselves liable only for a part of the decretal amount and the execution was taken only against them, the sureties not being co-judgment-debtors with the principal debtors, the execution against them did not save limitation against the principal debtors. That decision followed Kusaji v. Vinayak I.L.R (1898) Bom. 478 and Narayan v. Timmaya was also mentioned therein with approval.

6. The contrary view is to be found in Badr-ud-din v. Muhammad Hafiz I.L.R (1922) All. 743 and Ganga-raju v. Subbayya I.L.R (1934) Mad. 276. In the first of these cases the question which arose for decision was whether an application for execution of a decree by arrest of the judgment-debtor would operate to save limitation in respect of a subsequent application in which the prayer was, first, for the arrest of the judgment-debtor, and, secondly, for the arrest of two persons who had become sureties for the due satisfaction of the decree by the judgment-debtor. Their Lordships decided the question in this manner (p. 744):

The case against the appellant (one of the sureties) really admits of being stated in the form of a dilemma. Either the effect of Section 145 of the Code of Civil Procedure is to make the decree, in a case like the present, equivalent to a decree passed jointly against the original judgment-debtor and the surety or the sureties, or it has not that effect. If it has, then the case is covered by the closing words of Explanation I to Article 182 of the schedule, and an application for execution against a judgment-debtor or against any one of the sureties affords a starting point for a fresh period of limitation, even though the application next made be against a different surety. On the other hand, if the effect of Section 145 of the Civil Procedure Code be not as suggested above, then the words of Explanation (I) aforesaid have no application whatsoever to a case like the one now before us and must altogether be excluded from consideration. In that case we are driven back to the words of Clause (5) of Article 182 itself. The point we have to decide is whether the application of March 6, 1918, was or was not an application in accordance with law to the proper court for execution of the decree, or to take some step in aid of execution of the decree. We can not answer that question otherwise than in the affirmative.

7. This case represented a further stage in certain execution proceedings which had come before the same Court in Muhammad Hafiz v. Muhammad Ibrahim I.L.R (1920) All. 152. There an application had been made asking the proper Court to execute the entire decree by the arrest of the surety who had made himself liable for the satisfaction of the decree and the question arose whether such an application amounted to asking the execution Court to take a step-in-aid of execution of the decree as against the principal, whose liability the surety had taken upon himself, within the meaning of Clause (5) of Article 182 of the Indian Limitation Act. The case was really converse to the one now before us. Reference was made to Narayan v. Timmaya but the case was distinguished therefrom on the ground that the Bombay case had been decided under Section 253 of the earlier Code of Civil Procedure (Act XIV of 1882) and that the Code of 1908 gave for the first time a summary remedy by way of execution against a surety who had bound himself for the due satisfaction of a decree after the decree was passed. It was held that in such a case the surety was not covered by any part of Explanation I to Article 182, and their Lordships remarked (p. 158):

In our opinion, therefore, we are dealing with a case not contemplated by explanation I to Article 182 of the first schedule to the Indian Limitation Act. We are driven back, therefore, to Clause (5), and we can only put to ourselves the plain question : Does an application, asking the proper Court to execute the entire decree by the arrest of the person of a surety who has made himself liable for the satisfaction of the decree, amount to asking the) execution Court to take a step in aid of the execution of the decree as against the principal whose liability the surety had taken upon himself?

And they answered the question in the affirmative, holding that the decree-holders were entitled to the benefit of Clause (5) of Article 182. This case was followed in Suraj Din v. Narain Rao Parameshwari Prasad [1939] All. 538. In Kishan Singh v. Prern Singh I.L.R (1939) Lah. 233 it was remarked that there was no escape from the dilemma propounded in Badr-ud-din v. Muhammad Hafiz I.L.R (1922) All. 743 by the learned Judges who decided that case. That was a case in which one Kesar Singh had obtained a decree against one Kishan Singh for Rs. 600 and costs and he took out execution. Two persons became sureties for the payment of the decretal amount. Thereafter an application was made for the arrest of one of the sureties, after which the original decree-holder sold his decree to two persons who transferred it to one Prem Singh. Prem Singh having applied seven years after the decree for execution of the decree against the judgment-debtor, the latter pleaded that the execution was barred by time. It was held that the application against the surety for his arrest was a step-in-aid of execution of the decree within the meaning of Article 182 so as to bring the application of Prem Singh within time against the judgment-debtor. Gangaraju v. Subbayya I.L.R (1934) Mad. 276 followed the view taken by the Allahabad High Court in Muhammad Hafiz v. Muhammad Ibrahim I.L.R (1920) All. 152 and Badr-ud-din v. Muhammad Hafize I.L.R (1922) ALL. 743. With regard to Narayan v. Timmaya and the decisions following it, it was observed (p. 279):

None of the rulings cited from Bombay, Rangoon or Patna lays it down positively that the case of a judgment-debtor and his surety falls within Explanation I. They all assume without any discussion that, as the judgment-debtor and his surety are not joint judgment-debtors an execution petition against the former will not avail to save limitation as against the latter. We agree with the Allahabad view that Explanation I does not contemplate a case of this kind at all and, therefore, that Clause 5 itself is the only provision by which this question of limitation must be determined.

Thereafter their Lordships go on to observe that their view was in accordance with natural justice, the real meaning of suretyship and equity. It must be remembered, however, that the Privy Council has often remarked that there is no place in the application of the provisions of the Limitation Act for considerations of equity or of hardship to any particular party : see General Accident Fire and Life Assurance Corporation, Limited v. Janmahomed (1940) 43 Bom. L.R. 346 and Nagendranath De v. Sureschandra De I.L.R (1932) Cal. 1 : 34 Bom. L.R. 1065.

8. If the reasoning in the Allahabad and Madras cases should appear to us to be correct, it would be possible for us to distinguish the present case from Narayan v. Timmaya on the ground that that case was decided solely on the basis that a decree cannot be treated as passed jointly against the judgment-debtor and the surety within the meaning of Explanation I to Article 182, a basis not objected to by the present appellant, and on the ground that the present appeal is based on arguments which were not advanced or considered in Narayan's case.

9. Mr. Murdeshwar has contended that the scope of Clause (5) of Article 182 is not wider than that of Explanation I, that is, that if the Explanation is concerned with the judgment-debtors only,, Clause (5) should not be regarded as applying to an application for execution against any other party, for instance a surety, in spite of the generality of the terms of that clause. In Bachchu Singh v. Radhe Lal I.L.R (1937) Luck. 353 (a case in which execution was first sought against the surety and then against the judgment-debtor) it was remarked (p. 356):

The provisions of Explanation I are after all merely explanatory of the substantive provisions of the article. In the circumstances we think that it would not be right to use the Explanation so as to restrict the application of the Article when the case happens to be fully covered by its terms.

This proposition has been controverted by Mr. Murdeshwar, who has contended that Explanation I really clarifies the provisions of Article 182 and cannot be held as restricting any part thereof. According to him the Explanation, if anything, enlarges the scope of Clause (5) of the article. We are unable to agree with this contention. The first part of Explanation I deals with the case of more than one decree-holders or persons in whose favour an order has been passed and the second part deals with more than one judgment-debtors or persons against whom an order has been passed. Having said in the second paragraph of Explanation I, 'Where the decree or order has been passed severally against more persons than one, distinguishing portions of the subject-matter as payable or deliverable by each, the application shall take effect against only such of the said persons or their representative as it may be made against,' the Legislature has added a proviso or qualification to the above : ' But where the decree or order has been passed jointly against more persons than one, the application, if made against any one or more of them, or against his or their representatives, shall take effect against them all.' There is clearly no reference in the Explanation to a surety, and so far Narayan v. Timmaya, we may say with respect, was rightly decided. But under Section 145 of the Code of Civil Procedure where any person has become liable as surety for the performance of any decree or any part thereof, the decree may be executed against him, to the extent to which he has rendered himself personally liable, in the manner provided in the Code for the execution of decrees. There seems to be no reason, therefore, why when a decree is sought to be executed against such a surety Article 182 at the Limitation Act should not apply. The beginning of that article reads thus:

Description of application. Period of Limitation.

For the execution of a decree Three years, or, where a certified

or order of any civil court the decree or order has been

not provided registered,six years

for by Article 183 or

Section 48 of the

code of civil procedure, 1908

10. It is difficult to see why, because Explanation I deals with cases of more than one decree-holders and judgment-debtors, Article 182 should be deemed to be confined to applications for execution of decrees against judgment-debtors only. That Explanation was apparently necessitated by the realisation where there were more than one decree-holders or judgment-debtors, specially where the decree distinguished portions of the subject-matter as payable or deliverable to or by such parties, doubts might arise in the interpretation of the expression 'application made in accordance with law.' It does not appear that the Legislature in enacting this article had specifically in mind the case of an application for execution against a surety. The last sentence in Explanation I must clearly be read with the earlier part of the second paragraph regarding more than one judgment-debtors or persons against whom an order is passed, the expression 'passed jointly against more persona than one' being in contradistinction to the expression 'distinguishing portions of the subject-matter as payable or deliverable by each.' The first parts of the two paragraphs of Explanation I provide a clarification of or an exception to the general principle of Clause (5), and the second parts of the said paragraphs must be regarded, in our judgment, as amounting to provisos reaffirming that general principle in cases other than those to which the said exception would apply. We are, therefore, of opinion that the scope of the Explanation cannot be used in determining the! scope of Clause (5). That being so, we think that the reasoning in the Allahabad and Madras cases applies to the present case. We do not distinguish the case from Narayan v. Timmaya, because it was decided under the old Code of Civil Procedure of 1882, there being little difference in principle between the present Section 145 and the old Section 253. But we do not consider ourselves bound by Narayan v. Timmaya because that case was decided on a line of reasoning which has been accepted in the present appeal and because the argument that though Explanation I does not apply Clause (5) does was not advanced or considered in that case. That case besides, was based on the assumption that as the judgment-debtor and the surety are not joint judgment-debtors an application for execution against the former will not save limitation against the latter.

11. It is not necessary for us to discuss Mr. Hungund's argument based on Section 128 of the Indian Contract Act. His further argument, based on Karuppan Chettiar v. Nagappa Chettiar I.L.R (1933) Mad. 688 that Article 182 of the Indian Limitation Act does not apply appears to us to be clearly untenable in view of Section 145 of the Code of Civil Procedure and the opening words of that article.

12. In the result, in view of our conclusion that the darkhast against the surety was in time, we hold the decrees of both the Courts below to be erroneous. The appeal is allowed with costs throughout and the orders of the Courts below set aside, with the result that the darkhast will now proceed against the surety.

Rajadhyaksha, J.

13. I agree.

14. I would only add that if the contention put forward by Mr. Murdeshwar, viz, that Article 182(5) is confined in its operation only to the persons against whom execution is taken out, is correct, then there was no necessity of enacting in the first part of para. 2 of Explanation I that 'where the decree or order has been passed severally against more persons than one, distinguishing portions of the subject-matter as payable or deliverable by each, the application shall take effect against only such of the said persons or their representatives as it may be made against.' For ex hypethesi, the application there contemplated is against the person against whom the decree is passed distinguishing portions of the subject-matter as payable or deliverable by him and would not therefore take effect against the other judgment-debtor. If the decree is passed severally against A directing him to deliver property X and against B asking him to deliver property Y, then the execution taken against A for the delivery of property X would, on the interpretation urged by Mr. Murdeshwar, take effect only against A and not against B. In that event there would be no necessity of the Explanation embodied in the first sentence of the second paragraph of Explanation I. It is only on the interpretation, which Mr. Murdeshwar asks us to accept, that the second part of para. 2 of the Explanation can be regarded as extending the scope of Article 182(5) and would then operate by way of an exception enlarging the scope of Article 182(5) to a strictly limited extent. If, on the other hand, our view is correct, viz. that Article 182(5) is general in its application, and that an application made in accordance with law to the proper Court for execution or to take some step-in-aid of execution of the decree or order would save limitation also against others affected by the decree, then the whole of para. 2 of Explanation I would operate as an explanation or as a clarification of that clause. The first sentence there would create an exception, but the second sentence of that paragraph would re-affirm the principle of the main clause. It is true that on this interpretation the second sentence becomes unnecessary, but that sentence is clearly intended as a qualification of the rule enunciated in the first sentence of the Explanation as the word 'but' indicates, and in our opinion, it affirms the principle in Article 182(5) in its application to joint judgment-debtors.


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