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Moulvi Khalilur Rahman Khan Vs. the Collector of Etah - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Judge
Reported in(1934)36BOMLR237
AppellantMoulvi Khalilur Rahman Khan
RespondentThe Collector of Etah
DispositionAppeal dismissed
Excerpt:
.....182, clause (5) - application for execution or to take some step-in-aid of execution-bona fides of decree-holder immaterial-application merely for the purpose of gaining time and keeping the decree alive nevertheless saves limitation-terminus a quo-'date of applying', not the result of the application, saves limiation-alteration introduced by amending act ix of 1927. ;under article 182, clause (5), of the indian limitation act, 1908, it is sufficient to show that an application was made in accordance with law to the proper court for execution or to take some step-in-aid of execution of the decree, and it is not further necessary to show that such application was not merely colourable but had been made with a bona fide and genuine intention of obtaining execution of the decree and not..........for sale of the property. the court ordered necessary copies to be filed. then the vakil for the decree-holder, as the order-sheet shows, stated on july 14, 1925, that he simply wanted the legal representatives of the deceased judgment-debtor to be brought on the record. accordingly notices were issued to the proposed representatives, one of whom was mohammad khalil-ur rahman khan, on august 14, 1925, it was found that the notices were unserved and as no further step was taken by the decree-holder, the execution suit was struck off on that date. then another application was made on july 8, 1926, for sale of the property. the execution was sought against the representatives of the deceased judgment-debtor. this time again there was a report that necessary copies were not filed and it.....
Judgment:

Lancelot Sanderson, J.

1. This is an appeal from an order and judgment of the High Court of Judicature at Allahabad, dated June 24, 1930, confirming the order of the Subordinate Judge of Etah, dated April 22, 1929, in the matter of the execution of a final decree for sale dated July 29, 1922, in a mortgage suit.

2. The appellant is the successor of Abdul Jalil Khan, a zemindar of Aligarh, who died on October, 1923.

3. The material facts are as follows :- Abdul Jalil Khan in 1909 or 1910 borrowed money from various people, and several decrees were made against him.

4. The decrees were simple money decrees, and the property, which was attached in execution of the decrees, being ancestral property, the execution proceedings were transferred to the Collector in accordance with the provisions of Section 68 of the Code of Civil Procedure.

5. On August 29, 1911, the Collector, as he was entitled to do, granted a lease to Habib-ur Rahman Khan of the property belonging to the judgment debtor, Abdul Jalil Khan, for a term of seventeen years.

6. During the pendency of the said lease, which expired on July 1, 1928, Abdul Jalil Khan on September 25, 1914, executed a mortgage of the said property for Rs. 15,000 in favour of Rao Maharaj Singh.

7. In this appeal Rao Maharaj Singh is represented by the respondent, the Collector of Etah, who is in charge of his estate.

8. On October 25, 1920, the Collector of Etah filed a suit based on the above-mentioned mortgage, against Abdul Jalil Khan, and obtained a preliminary decree on March 9, 1921, which was made final on July 29, 1922.

9. Both the decrees were made ex parte after due notice had been served upon Abdul Jalil Khan.

10. In the Courts in India it was argued on behalf of the appellant that the mortgage was illegal, that the decree obtained on the basis thereof was not enforceable at law, that the decree was obtained in contravention of the provisions of paragraph 11(1) of the third schedule of the Code of Civil Procedure, and that it was incapable of execution.

11. Though these points were taken in the appellant's case, they were not relied on before the board by the learned Counsel for the appellant, and the only arguments presented to the board were in relation to the other point, which was based upon the Indian Limitation Act.

12. The appellant alleged that the application for execution, in respect of which the above-mentioned order of the Subordinate Judge, dated April 22, 1929, was made, was barred by the law of limitation inasmuch as certain previous applications dated June 2, 1925, and July 8, 1926, were not steps in aid of execution so as to save limitation.

13. It was further argued on behalf of the appellant that the said previous applications were not bona fide and were not taken with the intention of executing the said decree, but were merely for the purpose of gaining time, and that consequently the application in question was barred by the law or limitation.

14. The material facts in relation to this point are as follows:

On June 2, 1925, the Collector of Etah applied for execution of the decree and prayed for sale of the property. The Court ordered necessary copies to be filed. Then the vakil for the decree-holder, as the order-sheet shows, stated on July 14, 1925, that he simply wanted the legal representatives of the deceased judgment-debtor to be brought on the record. Accordingly notices were issued to the proposed representatives, one of whom was Mohammad Khalil-ur Rahman Khan, On August 14, 1925, it was found that the notices were unserved and as no further step was taken by the decree-holder, the execution suit was struck off on that date. Then another application was made on July 8, 1926, for sale of the property. The execution was sought against the representatives of the deceased judgment-debtor. This time again there was a report that necessary copies were not filed and it was ordered that notices of the legal representatives being brought on the record be issued and that copies be filed on the next date. On the next date, i.e., August 4, 1926, the notice to Mohammad Khalil-ur Rahman Khan was returned unserved. The decree-holder took further time and again notice was issued. On September 10, 1926, the notices being served, legal representatives were brought on the record. As the decree-holder took no further steps in the prosecution of the execution proceeding, the application was struck off on September 16, 1926.

15. On August 30, 1928, the Collector of Etah made a third application for execution in the Court of the Subordinate Judge; and the appellant, Khalil-ur Rahman Khan, filed objections under Section 47 of the Code of Civil Procedure.

16. The learned Judge dismissed the objections by the abovementioned order of April 22, 1929.

17. The learned Judge in the course of his judgment said that he found no reason to question the bona fides of the decree-holder in the said application for execution and held that the object of the decree-holder in this case was not simply to save limitation, but that it was to take steps in aid of execution. He decided that the previous applications were steps in aid of execution and that therefore they saved limitation.

18. The High Court affirmed this decision, holding that the finding of the learned Subordinate Judge was correct. The learned Judges however further held that in view of the ruling of the full bench of that Court in the case of Kayastha Co. Ltd. v. Sita Ram Dube I.L.R. (1929) All. 11 the objections raised by the judgment-debtor could not now be maintained.

19. In the case cited, the question, stated briefly, was whether under Article 182(5) of the Indian Limitation Act (IX of 1908) it is sufficient to show that an application was made in accordance with law to the proper Court for execution or to take some steps in aid of execution or whether it is further necessary to show that such application had been made with a bona fide intention to execute the decree or to take such step and not merely to keep the decree alive.

20. The actual question submitted to the full bench was as follows:

If a decree-holder makes any application or takes any step mentioned in the third column of Article 182 of the Limitation Act, will such step be ineffectual to keep his decree alive and to save limitation, unless he can satisfy the Court that he took such step or instituted such proceedings with a genuine intention of obtaining execution of the decree, if reasonably possible, and that he did not abandon such proceedings except upon a genuine belief that it would not be reasonably possible to obtain execution?

21. The full bench decided that the answer to the question referred to was in the negative.

22. It is not clear, therefore, whether the High Court in this case intended to confirm the Subordinate Judge's finding of fact that the decree-holder, in making the previous applications, was acting with bona fides, and was intending to take steps in aid of execution.

23. It is therefore necessary to consider the point raised by the learned Counsel for the appellant, viz., that it is material to consider whether the first two applications were in accordance with law on the assumption that they were not bona fide applications for the purpose of obtaining execution of the decree, but were merely for the purpose of gaining time.

24. Article 182(5) prescribes the time for the execution of a decree or order of any civil Court not provided for by Article 183 or by Section 48 of the Code of Civil Procedure, 1908, viz., three years (where the application next hereinafter mentioned has been made) from the date of applying in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order.

25. This is the article which was applicable to the first and second applications for execution made on June 2, 1925, and July 8, 1926, respectively.

26. It should be noted that the terms of this article have been amended by Act IX of 1927, by the provision that in Clause 5 of the entry in the third column, for the word 'applying' the words 'the final order passed on an application made' shall be substituted. But the Act did not come into force until the 1st day of January, 1928, and therefore the un-amended form of Article 182(5) is applicable, as already stated, to the first two applications.

27. In the case of Sheo Prasad v. Naraini Bai I.L.R. (1925) All. 468 Boys and Banerji JJ. held that in considering whether an earlier application is effective to save limitation the Court may and should take into consideration whether the whole circumstances show that the application was made in good faith to secure execution or to take a step in aid of execution and was not merely colourable with a view to give a fresh starting point for the period of limitation.

28. It was the decision in that case which gave rise to the reference to the full bench in Kayastha Company Ltd. v. Sita Ram Dube I.L.R. (1929) All. 11 and it was stated in the judgment of the full bench that the decision in Sheo Prasad v. Narain Bai might be supported on the special facts of that case, but that some of the general observations, which were not necessary for the decision, could not be supported. It may be noted that Banerji J. was a party to the full bench decision.

29. The point raised on this appeal is clearly covered by the above-mentioned full bench decision in the Allahabad High Court, and the question is whether any ground has been shown for disagreeing with that decision.

30. In their Lordships' opinion no such ground has been shown, and they agree with the decision arrived at by the full bench. In this case all that was necessary for the respondent to show was that the applications of June 2, 1925, and July 8, 1926, were made in accordance with law to the proper Court for execution, or to take some step in aid of execution of the decree.

31. The applications were made in accordance with the provisions of the Code of Civil Procedure, and therefore in accordance with the law applicable thereto, they were made to the proper Court, they were obviously steps in aid of execution, and they were made within time.

32. To hold that it was necessary for the Court to be satisfied that the said applications were made bona fide and that the decree-holder had the intention of proceeding to execution in pursuance of each of the said applications would be to import words into the terms of the article which are not to be found therein and would necessitate the Court embarking upon the difficult and in some cases impossible task of finding the motive of the decree-holder in making the applications.

33. It is to be noted that by the said article, before amendment, the date of the application for execution was the time from which the period of limitation was to run, and it was not until the amending Act of 1927 was passed that the result of the application, viz., the final order passed on the application, became the material time.

34. It was, therefore, the application and not the result of the application which was contemplated as being sufficient to save limitation.

35. For these reasons their Lordships are of opinion that the decision of the High Court was correct.

36. In view of the above opinion it is not really necessary for their Lordships to embark upon the enquiry as to whether the finding of the Subordinate Judge, that in fact the aforesaid applications were made bona fide by the decree-holder, was correct.

37. As, however, certain arguments were presented to their Lordships in respect of this point, it is sufficient to say that their Lordships are not satisfied that the decision of the Subordinate Judge in this respect was wrong.

38. For these reasons their Lordships are of opinion that the appeal should be dismissed with costs, and they will humbly advise His Majesty accordingly.


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