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Sadashiv Venkaji Joshi Vs. Narsingrao Konherrao - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberFirst Appeal No. 262 of 1913
Judge
Reported inAIR1915Bom46(2); (1915)17BOMLR203
AppellantSadashiv Venkaji Joshi
RespondentNarsingrao Konherrao
Excerpt:
.....suit or application.;an application to execute a decree was filed in the absence of the conciliator's certificate required by section 47 of the dekkhan agriculturists' belief act. the court accepted the application and ordered notice to issue under section 248 of the civil procedure code of 1882. the notice was not served upon the judgment-debtor and the execution-proceedings came to an end. in a subsequent application to execute the decree, it was contended that the first application did not save limitation for the second. the lower court sustained (he contention, by holding (1) that the first application not having been accompanied by the conciliator's certificate as required by section 47 of the dekkhan agriculturists' relief act was not in accordance with law; and (2) that..........because under section 47 of the dekkhan agriculturists' relief act it was not accompanied with a conciliator's certificate as required by that section. in support of his conclusion the learned judge has relied upon the case of manohar v. gebiapa i.l.r. (1881) 6 bom. 31. apart from the decision, it seems to me that an application for execution which is otherwise in accordance with law, is an application in accordance with law within the meaning of article 182 of the indian limitation act even though it is not accompanied with the conciliator's certificate as required by the dekkhan agriculturists' relief act. no doubt this view is in conflict with the decision which i have just mentioned. but several recent decisions of this court support the view which i take of the meaning of the word.....
Judgment:

Shah, J.

1. The question in this appeal is one of limitation. The lower Court has dismissed the Darkhast as time-barred on the ground that the Application No. 500 of 1906 which was presented on the 10th of November 1906 was not an application in accordance with law to the proper Court for execution. This application was held to be not in accordance with law, because under Section 47 of the Dekkhan Agriculturists' Relief Act it was not accompanied with a Conciliator's certificate as required by that section. In support of his conclusion the learned Judge has relied upon the case of Manohar v. Gebiapa I.L.R. (1881) 6 Bom. 31. Apart from the decision, it seems to me that an application for execution which is otherwise in accordance with law, is an application in accordance with law within the meaning of Article 182 of the Indian Limitation Act even though it is not accompanied with the Conciliator's certificate as required by the Dekkhan Agriculturists' Relief Act. No doubt this view is in conflict with the decision which I have just mentioned. But several recent decisions of this Court support the view which I take of the meaning of the word 'entertained' in Section 47 of the Dekkhan Agriculturists' Relief Act. The case of Bando v. Jambu : (1910)12BOMLR801 and the unreported judgments in Civil Extraordinary Applications Nos. 155 of 1909 and 161 of 1909 and in Civil Reference No. 7 of 1910 all consistently point to the conclusion that the view taken in Manohar's case cannot now be accepted. No doubt in case of a conflict of decisions ordinarily a reference to a Full Bench would be necessary; but having regard to the current of recent decisions of this Court, it seems to me to be now settled that a suit or an application, though not accompanied with a Conciliator's certificate, can be legally presented to a competent Court, Without the certificate there may be difficulty in proceeding with the suit or the application in consequence of the provisions of Section 47 of the Dekkhan Agriculturists' Relief Act. I am, therefore, of opinion that the appellant's contention that the application of the 10th of November 1906 was in accordance with law for the purposes of the Indian Limitation Act must be allowed.

2. There is another ground also, upon which the present appeal should be allowed. It is not denied on behalf of the respondents that, on the application of the 10th of November 1906, a notice under Section 248 of the Code of Civil Procedure of 1882 was issued, though not served upon the judgment-debtors. Under Clause (5) of Article 179 of Schedule II of the Indian Limitation Act of 1877 time would commence to run against the appellant from the date of such notice. The learned District Judge has, however, held against the appellant on the ground that if the application without a certificate could not be entertained by the Court, no notice would be necessary under the Civil Procedure Code, and the issue of such a notice could not be of any use. It seems to me, however, that if an application for execution is presented and a notice is issued by the Court as provided by the Civil Procedure Code, the applicant is entitled to take advantage of the fact of the issue of such notice even though the application may be defective owing to the absence of a Conciliator's certificate.

3. The result, therefore, is that the order of the lower Court is set aside and the application sent back to that Court for disposal according to law. Costs to be costs in the application.

Heaton, J.

4. I agree to the order proposed. But as there have been differences of opinion in the past, I will add a few words of my own, although the matter is not really of much practical importance now, seeing that conciliation has been abolished and apparently is unlikely to be revived.

5. Reading Section 47 of the Act in the light of the every day procedure of our Courts, I think it contemplates at least two classes of cases in execution: those in which the plaintiff or the decree-holder recognizes the necessity of a certificate from the Conciliator and produces it and those in which he does not recognize or denies the necessity of a certificate. In the latter case it seems to me that he is acting entirely within the law in presenting his application or plaint without a certificate and obtaining the Court's decision as to whether the certificate is required, and when the Court decides that the certificate is necessary, I do not think that decision invalidates or renders inoperative anything that has gone before, but it compels the Judge to suspend operations until the certicate is furnished. That is my view of what Section 47 means, as I say, in the light of every day proceedings of our Courts.

6. The only argument that has appealed to me in favour of the contrary view is what the District Judge has written about the words 'immediately preceding.' But I think that the meaning to be attached to these words is that a certificate must be produced of a date within the year immediately preceding the production. That reading seems to me to give the words of the section a grammatical meaning, a perfectly correct grammatical meaning, and a meaning entirely in consonance with the requirements of our regular procedure. It follows from what I have said that in a case of this kind the issue of a notice calling on the judgment-debtor to show cause why the decree should not be executed is a legal and necessary proceeding because the Judge is seized of a matter within his jurisdiction in which he may have to determine the validity of objections raised by the judgment-debtor one of which might be that a certificate from a Conciliator was needed.


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