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Awappa Tatoba Chaugule Vs. Datto Krishna Adke - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtMumbai
Decided On
Case NumberFirst Appeal No. 177 of 1944
Judge
Reported in(1947)49BOMLR864
AppellantAwappa Tatoba Chaugule
RespondentDatto Krishna Adke
DispositionAppeal dismissed
Excerpt:
.....deal of argument, and several authorities have been cited to us, as to the meaning of the words 'application to take a step in aid of execution of the decree. at any rate i am satisfied that in plain english they would cover an application for what was intended to be a step in aid of execution, even though in point of fact the application was unnecessary and on that account could not be regarded as being in fact of any assistance to execution. the plaintiff accordingly did apply for a final decree, but failed to pay the process fees. 269 where this court refused to extend limitation under the twelve years' rule by reason of an application to make a decree absolute, because the limitation provided by section 48 of the civil procedure code could not be saved by such an application, it..........section 15-b of the dekkhan agriculturists' relief act and therefore partaking of the nature of a final decree. the result was that the judgment-debtor objected to execution on the ground that the execution was out of time and was not saved by the decree-holder's application to have the decree made final, that not being an application to take a step in aid of execution made in accordance with law to the proper court within the meaning of article 182(5) of the indian limitation act. his contention was rejected by the executing court and the judgment-debtor has come in appeal to this court.2. in our opinion he must succeed in his appeal. we have heard a good deal of argument, and several authorities have been cited to us, as to the meaning of the words 'application to take a step in aid.....
Judgment:

Macklin, J.

1. A mortgagee obtained a decree against his mortgagor under Section 15B of the Dekkhan Agriculturists' Relief Act. Rather less than three years thereafter he applied to have the decree made final, and rather more than three years after the existing decree had been passed he applied for execution of the decree. His application for making the decree final had been rejected on the ground that it was unnecessary, the existing decree being one under Section 15-B of the Dekkhan Agriculturists' Relief Act and therefore partaking of the nature of a final decree. The result was that the judgment-debtor objected to execution on the ground that the execution was out of time and was not saved by the decree-holder's application to have the decree made final, that not being an application to take a step in aid of execution made in accordance with law to the proper Court within the meaning of Article 182(5) of the Indian Limitation Act. His contention was rejected by the executing Court and the judgment-debtor has come in appeal to this Court.

2. In our opinion he must succeed in his appeal. We have heard a good deal of argument, and several authorities have been cited to us, as to the meaning of the words 'application to take a step in aid of execution of the decree.' Without considering the authorities for the moment, and speaking for myself, I should say that in plain English those words would cover an application which was intended to facilitate the execution even of a decree which had yet to be passed. At any rate I am satisfied that in plain English they would cover an application for what was intended to be a step in aid of execution, even though in point of fact the application was unnecessary and on that account could not be regarded as being in fact of any assistance to execution. There are however other words in the article which appear to control the meaning of the words 'application to take a step in aid of execution of the decree,' and they are to be found in Explanation II and the provision that the application must be made to the proper Court. The combined effect, assuming that the application to take a step in aid of execution has to be made to the proper Court, is that the application to take a step in aid of execution has to be made to the executing Court, and that limits the application to the sort of application that can be entertained by an executing Court. An application to make a decree final could presumably be entertained only by the Court trying the suit. Such an application therefore cannot be an application to take a step in aid of execution within the meaning of Article 182(5) unless it can be argued-as an attempt has been made in this case to argue-that the provision as to the application being made to the proper Court occurring in Article 182(5) does not apply to applications to take a step in aid, but applies only to applications for actual execution.

3. There is some ingenuity in that argument, but we do not think that it is sound. The material part of Article 182(5) runs as follows:-

the date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some stept in aid of execution of the decree or order.

It is to be noticed that there is a comma after the word 'execution' where it first occurs; and the argument is that, there being two alternatives separated by a comma, it would be justifiable to take the words 'made in accordance with law to the proper Court for execution' as going all together and the next words 'or to take some step in aid of execution' as entirely distinct from the former words. In other words, the argument is that the article refers to either an application for execution which has been made in accordance with law to the proper Court, or an application to take some step in aid of execution without any qualification whatever as to its being in accordance with law or made to the proper Court. It is not the natural way of interpreting the words of the article, and the consequences of so interpreting it would in many cases be absurd. It would, for example, permit someone who was not even a decree-holder to make an application to take a step in aid of execution of somebody-else's decree and the true decree-holder would thereafter be able to take advantage of such an application in order to save limitation. The consequences of the interpretation which we are asked to put upon the article are absurd, and no Court will so interpret the law if it is possible to avoid doing so; and in this case we do not think it in any way necessary to do so, and we decline to do so. In our view the application to take a step in aid of execution must be an application made in accordance with law and to the proper Court. To be in accordance with law an application must be in accordance with something which is provided by law, or in accordance with something which has been ordered by a Court, and there being a decree already in. existence under Section 15-B of the Dekkhan Agriculturists' Relief Act, and that decree requiring in law no further final decree, it follows that the application was not In accordance with law in the first sense. It was indeed entirely superfluous.

4. But the mere fact that it was superfluous would not necessarily make it not in accordance with law, though I am aware that there are decisions which at first sight appear to suggest that it would: see for example, Jodh Singh v. Bhagwan Das-Nanak Chand I.L.R.(1937) Lah. 671 and Calcutta Corpn. v. Monjoor Ahmed : AIR1939Cal488 . An example to the contrary is to be found in the circumstances which gave rise to the decision in Gulappa v. Erava 23 Bom. L.R. 1013. That too was a case of the execution of a mortgage decree. The first execution was dismissed on the ground that the plaintiff had not applied for a final decree. The plaintiff accordingly did apply for a final decree, but failed to pay the process fees. He made a similar application later on and eventually withdrew it because it was found that after all the decree was one that did not require to be followed by a final decree. In other words the order of the Court directing the plaintiff to apply for a final decree was wrong. But it was nevertheless an order of the Court, and the plaintiff's applications for a final decree were accordingly treated as being applications made in accordance with law to take a step in aid of execution. With respect, the decision seems to us to be correct only so far as it goes; though the order of the lower Court was wrong, it cannot be said that obedience to that order was not in accordance with law. But there is one respect in which it is difficult to treat this decision as an undoubted authority; it did not go into the question whether or not the application was made to the proper Court. We do not know the facts. The application may have been made to the Court which tried the suit and thereby have offended against Explanation II to Article 182(5) or it may have been made to the executing Court, since the order to make it was passed in execution, though it is not easy to see how an executing Court could deal with such an application. Moreover, it is not (and was not intended to be) a decision that in every case an application for a final decree could be regarded as a step in aid of execution made in accordance with law. Reference was made to Hirachand v. Aba Lala (1921) 24 Bom. L.R. 269 where this Court refused to extend limitation under the twelve years' rule by reason of an application to make a decree absolute, because the limitation provided by Section 48 of the Civil Procedure Code could not be saved by such an application, it being 'at best only an application to take a step-in-aid of execution.' The statement that it was at best an application to take a step in aid of execution was obiter, and it ought to be taken to mean that the application being one in accordance with law and made to the proper Court could save limitation under Article 182(5). We do not think that this decision is of any assistance. Another instance of an application to make a decree final being treated as an application capable of saving limitation within the meaning of Article 182(5) is to be found in another decision of this Court in Bindu Govind v. Hanmanth Govind A.I.R.[1924] Bom. 71. Theoretically in a proper case such an application would save limitation if made (and capable of being made) to the executing Court. But presumably an application to make a decree final cannot be made to an executing Court as such. It is therefore difficult to imagine any case where such an application could fulfil the requirement of Article 182(5) so as to save limitation. In the present case the application has not been made to the executing Court; and by reason of Explanation II that means that it was not made to the proper Court, Also it. was an application made neither by reason of some provision of law nor upon the orders of the Court, and therefore, it cannot be said to be an application made in accordance with law.

5. It was argued that the application being evidently bona fide, that was a point in favour of the decree-holder. But bona fide is immaterial for the purposes of Article 182(5); see the decision of the Privy Council in Khalil-ur-Rahman Khan v. Collector of Etah 36 Bom. L.R. 273. It would be material only if the case could be brought within Section 14 of the Indian Limitation Act. That it can be brought within Section 14 is the last argument addressed to us on behalf of the decree-holder. But unfortunately an application to make a decree final and an application for the execution of a decree are not applications for the same relief within the meaning of Section 14(2). The section therefore cannot save limitation in this case.

6. It is with some reluctance that we have come to the conclusion that this appeal must succeed. The amount outstanding on the decree is no less than Rs. 11,000, and the application to make the decree final was made under a genuine misapprehension that such an application was necessary. There can be no question of the bona fides of the decree-holder, and it is a matter for regret that he is just too late to obtain his money.

7. The appeal succeeds and the execution is dismissed with costs throughout.


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