1. This first appeal which arises out of execution proceedings and is filed by the legal representatives of the original judgment-debtor has been placed before the Full Bench because Vaidya J., who heard the appeal, found that a Full Bench decision of this Court in Bhagwan Shankar v. Rajaram Bapu, : AIR1951Bom125 , may not be good law in view of the decision of the Supreme Court in Moloji Nar Singh Rao v. Shankar Saran, AIR 1982 SC 1737 and since he further found that the Full Bench decision in Bhagwan Shankar's case was cited with approval by the Supreme Court in Narhari v. Pannalal : 3SCR149 .
2. As we shall presently point out, the question involved in the appeal which necessitated the reference to the Full Bench relates to the executability of the decree passed by the Bombay High Court on its Original Side against a judgment debtor who was then resident in the erstwhile State of Hyderabad and who had not submitted to the jurisdiction of the Bombay High Court in the suit, though a summons was served on the defendant, especially in the context of the fact that the place where the judgment-debtor originally lived was then within the erstwhile State of Hyderabad and is now within the jurisdiction of the Bombay High Court since it is now a part of the newly constituted State of Bombay. After a prolonged hearing on the questions raised in this appeal, we found that the appeal itself can be disposed of on the question of limitation. We therefore decided to hear the appeal and not restrict the hearing only to the question which, according to the learned single Judge, needed a decision by a larger Bench. It is now necessary to briefly state the facts which have given rise to this appeal.
3. The original judgment-debtor was one Bhagwant Laxman Thiglay against whom the plaintiff-decree-holder, who is now represented by his legal representatives, filed original suit No, 1766 of 1938 on the Original. Side of the Bombay High Court. The defendant Bhagwant was a non-resident and was then residing in the erstwhile princely State of Hyderabad. An ex parte decree for Rs. 10,000/- and odd came to be passed against the defendant on 14th Dec. 1938, Founded on this decision of the High Court, the decree-holder filed a suit in the Court of the Province Sadar Adalat, Aurangabad, being suit No. 4 of 1354 Fasli. This suit came to be dismissed by the Sadar Adalat Court on two grounds. The Sadar Adalat Court took the view that the decree of the foreign court, that is, Bombay High Court was not a decree of a competent court as contemplated by Section 8 Civil P. C. then In force in Hyderabad, which provision corresponded to Section 13 Civil P. C. 1908, It appears from the Judgment of the Court that the plaintiff-decree-holder had also asked for a decree on the basis of the original transaction between the parties and the Court took the view that limitation for the suit would commence from the date of the original transaction and that the suit was, therefore, barred by time. The suit was thus dismissed.
4. This decision was challenged by the plaintiff by an appeal which came to be decided by the then High Court of the State of Hyderabad on 19th Jan. 1953. It is necessary to state at this stage that while at the time when the suit was decided by the Court of the Province Sadar Adalat Aurangabad, the State of Hyderabad was a princely State, when the appeal came to be decided on 19th Jan. 1953, Hyderabad was one of the States of the Indian Union. The Parliament by enacting the Civil P.C. Amendment Act, 1951, had extended the provisions of the Civil P.C. to those parts which did not originally form a part of British India with effect from 1st April, 1951.
5. The Hyderabad High Court, however, dismissed the plaintiffs appeal. The Hyderabad High Court held, following the decision of the Privy Council in Sirdar Gurdyal Singh v. Rajah of Faridkote, (1894) 21 I A 171, that the decree of the Bombay High Court must be treated as a nullity by the Courts of all countries other than that of the Court which passed it and it took the view that that decree was of no value in the countries or States where the provisions of the Indian Civil Procedure Code were not in force. In other words the Hyderabad High Court held that the decree was not of a court of competent jurisdiction, haying found that the defendant was not a resident of or present within the territorial limits of the Bombay High Court The decree of dismissal of the suit was thus confirmed by the Hyderabad High Court.
6. Historically one more fact needs to be stated. That fact relates to the reorganisation of States. With effect from 1st Nov. 1956, a new Bombay State came into being and by Section 8 of the States Reorganisation Act, 1956, it was provided that as from the appointed day, there shall be formed a new Part A State to be known as the State Of Bombay comprising of the following territories, namely:
'(a) the territories of the existing State of Bombay, excluding-
(i) Bijapur, Dharwar and Kanara districts and Belgaum district except Chandgad taluka, and
(ii) Abu Road taluka of Banaskantha district;
(b) Aurangabad, Parbhani, Bhir and Osmanabad districts, Ahmadpur, Nilanga and Udgir taluka of Bidar district, Nanded district (except Bichkonda and Jukkal circles of Deglur taluk and Mudhol, Bhiansa and Kuber circles of Mudhol taluk) and Islapur circle of Boath taluka Kinwat taluk and Rajura taluk of Adilabad district, in the existing State of Hyderabad', other clauses are not relevant for our purpose. Thus Bhir was one of the districts which was included in the territory of the new State of Bombay, and Bhir is the place where now the decree-holder wants to execute the decree of the Bombay High Court.
7. We shall now refer to the proceedings in execution taken by the decree-holder before and after the decision of the Hyderabad High Court. It is not necessary to refer to the series of execution applications filed by the decree-holder, the first of which came to be filed on 27th Jan. 1939. We may only mention that for the third time, the execution application came to be filed in the Bombay High Court on 12th Jan. 1943, which was transferred to Sholapur and that execution application came to be disposed of as partly satisfied on 11th Apr. 1945 and the decree-holder succeeded in recovering a sum of Rs. 1241/-. The original judgment-debtor Bhagwant died in 1946. Nothing was then done by the decree-holder for almost about 11 years till he filed the fourth execution application on the Original Side of the Bombay High Court on 9th April 1957. In that execution application, a notice under Order 21 Rule 22 Civil P. C. was issued to the heirs of the original judgment-debtor. In those proceedings, the mode of execution sought was by arrest and detention of the judgment-debtor No. 3 in civil prison. This notice was made absolute and that order was challenged by the judgment-debtor in an appeal filed before the Division Bench of this Court, being appeal No. 2 of 1958. Several objections were taken to the execution proceedings by the legal representatives of the original judgment-debtor, which were rejected but the Division Bench which decided the appeal held that the application for execution was proper 'to the extent that it sought the arrest and detention of the third respondent in civil Jail'. This notice under Order 21 Rule 22, Civil P. C. was made absolute only against third respondent in that appeal, that is, the appellant before us only to the extent of execution sought against him by his arrest and detention in civil jail. The notices against the other respondents were directed to be discharged. After this appeal was decided on 10th Sept. 1958, nothing was again done for almost a period of 9 years till a fresh execution application was filed in the Bombay High Court on ll th Oct. 1965 which, however, was allowed to be withdrawn on 6th March 1966. Thereafter another execution application was filed on 14th February 1967. In pursuance of this execution application the decree was transferred for execution to Bhir on 3rd April 1967, By this time the amount which was sought to be recovered had come to Rs. 27,417.16. A preliminary objection came to be raised on behalf of the present appellant that he as a legal representative of the deceased judgment-debtor was not liable to be detained in civil prison and that the prayer for arrest and detention was not maintainable without proceeding against the property. Challenge to the maintainability of the execution proceedings was also made in view of the dismissal of the decree-holder's suit by the Aurangabad Court. The executing Court overruled all the objections and having held that the present appellant could be ordered to be detained in civil prison for a period of two months directed the decree-holders to deposit the costs and subsistence allowance for the arrest and detention of the judgment-debtor in civil prison. It is this order which is challenged in this appeal.
8. As already stated, the appeal came up for hearing before Vaidya J. Before him the question argued was whether having regard to the decision of the Hyderabad High Court, the decree of the Bombay High Court could be executed at Bhir, which was originally a part of the State of Hyderabad. On behalf of the decree-holder reliance was placed before Vaidya J. on the decision of the Full Bench in Bhagwan Shankar v. Rajaram Bapu, (1957) 53 Bom LR 398. In that case a money decree was passed by the Indian Court, that is, the Court of Subordinate Judge at Sholapur against a person who resided in an Indian State, that is, Akalkot State. The decree was an ex parte decree because the defendant had not submitted to the jurisdiction of the Indian Court. Akalkot had subsequently merged into the Union of India. On the question as to whether after the merger of the Akalkot State in the Union of India the decree of the Indian Court became enforceable in Akalkot, the Full Bench held that it was so executable. While so holding the following propositions were laid down by the Full Bench:--
'(1) The decree of the Sholapur Court was not a nullity, but its enforcement or executability was limited to the Sholapur Court and it could not be executed or enforced in a foreign territory because the defendant had not submitted to the jurisdiction of the Sholapur Court,
(2) As the defendant did not submit to the jurisdiction of the Sholaour Court, qua the Akalkot Court the judgment of the Sholapur Court was a foreign judgment by a court not of competent jurisdiction and, therefore, it could not be executed in the Akalkot Court so long as the Sholaour Court continued to be a foreign court.
(3) As the character of the Akalkot Court changed by the merger of the Akalkot State into the Union of India, which altered the status of the defendant, the impediment which was initially there in the decree being enforced in the Akalkot Court disappeared and the decree which was unenforceable till that change came about became enforceable and executable in the Akalkot Court.'
This decision has been cited with approval by the Supreme Court in Lalji Raja & Sons v. Hansraj Nathuram, : 3SCR815 . It appears that before the learned single Judge reliance was placed on an earlier decision of the Supreme Court in Moloji Nar Singh Rao v. Shankar Saran, cited supra. That was a case in which the plaintiff had instituted a suit against the defendant in Gwalior Court on 15th May 1947. The defendant himself was not a resident in Gwalior State, which was then a princely State, and was a resident in Uttar Pradesh. In spite of service of summons, the defendant did not appear in the Gwalior Court and an ex parte decree was passed against the defendant. On 14th September 1951 an order was passed by the Gwalior Court transferring the decree for execution of the Court, at. Allahabad in Uttar Pradesh and the question was whether the decree could be executed against the defendant. By Act II of 1951 to which a reference has been made earlier, the Indian Code of Civil Procedure was made applicable to Part B States and Gwalior was one of the Part B States. Even then the Supreme Court took the view that the decree of the Gwalior Court sought to be executed was a decree of a foreign country which did not change its nationality in spite of constitutional changes or amendment in the Code and the Gwalior Court could not transfer the decree for execution to the Court at Allahabad nor could the Court of Allahabad execute the decree without such transfer. It was in view of these differing views of the Supreme Court in Moloji Nar Singh Rao's case and in Lalji Raja's case, which approved the Full Bench decision of this Court in Bhagwan Shankar's case that the matter was referred to the Full Bench.
9. Substantially three questions have been argued before us by Mr. Deshpande appearing on behalf of the judgment-debtor. His first contention was that Section 52 of the States Reorganisation Act, which provides that the High Court for a new State shall have in respect of any part of the territories included in the new State all such original, appellate and other jurisdiction as under the law in force immediately before the appointed day is exercisable in respect of that part of the said territories by any High Court or Judicial Commissioner's Court for an existing State, in fact creates a new High Court for the new State of Bombay as constituted by the States Reorganisation Act and the effect of the provisions of Section 52 read with Article 261 of the Constitution of India should be that the decree of dismissal of the plaintiff's suit by the Hyderabad High Court must now be treated as a decree of the Bombay High Court itself. Consequently, according to the learned Counsel, the plaintiff's suit in the Aurangabad Court having been dismissed and the dismissal having been upheld by the Hyderabad High Court, the decision that the plaintiff has no enforceable claim against the present judgment-debtor is in law a decision of the Bombay High Court itself and must, therefore, be respected. Consequently, according to the learned Counsel, the decree on the Original Side of the Bombay High Court cannot now be executed.
10. The second contention is really made in two parts. Relying on the decision in Moloji Nar Singh Rao's case, it was firstly contended that since it has been held that a decree passed in favour of the plaintiff was a nullity, the decision of the Aurangabad Court as confirmed by the Hyderabad High Court clothes the judgment-debtor with a Substantive right to oppose any execution or any process by which such right is intended to be taken away. In furtherance of this submission, reliance was placed on the saving clause in Section 20, Civil P. C. Amendment Act, 1951. The second limb of the argument was that in any case, having regard to the provisions of Article 261 of the Constitution of India and the full faith and credit clause contained therein, the decision of the Hyderabad High Court must at least be given such effect as it would have had if there was no reorganisation of States. The contention appears to be that the scope of the suit which was filed in the Aurangabad Court on the basis of the foreign judgment, that is, the judgment of the Bombay High Court on the Original Side, was to obtain a decree which could be executable within the limits of the Hyderabad State. Therefore, according to the learned Counsel, in spite of the fact that Bhir has now become a part of State of Bombay as a result of the States Reorganisation Act, the effect of the Hyderabad High Court decision must still be so construed that within the territory within which that decree was operative at the material time, it would continue to be operative within that territory in spite of the fact that a part of the territory of the Hyderabad State has now been included in the territory of the new State of Bombay.
11. The third submission is based on limitation to which we shall presently refer.
12. We have heard extensively both the learned counsel appearing on behalf of the judgment-debtor and the decree-holder and in fairness to the Counsel for the respondent-decree-holder, we must state that his argument relating to the executability of the decree was solely based on the Full Bench decision of this Court in Bhagwan Shankar's case, which view is now confirmed by the Supreme Court in Lalji Raja's case. Though we have heard the matter exhaustively and having regard to the view which we are inclined to take on the question of limitation, we do not consider it necessary to deal with the question regarding executability of the decree on merits; we would like to point out that there is a distinguishing feature in this case which distinguishes the decision in Bhagwan Shankar's case. Bhagwan Shankar's case was a case in which no doubt qua Akalkot princely State the decree of the Indian Court was a foreign decree. The Full Bench in that case has positively taken the view that as a result of subsequent political events, the decree became executable because Akalkot had merged in the Indian Union and the provisions of the Civil P. C. were extended by the Amendment Act II of 1951. It is also true that that view is now approved by the Supreme Court. In the case before us, however, the distinguishing feature is that basing a claim for a money decree on a foreign judgment, the decree-holder had already filed a suit in the princely State and that suit came to be dismissed. The result was that while so far as the Bombay High Court was concerned, the plaintiff had a money decree in his favour, so far as the area within which the territorial limits within which the defendant was residing was concerned, there was in his favour a decree of dismissal of his suit not only on the footing that the foreign decree was not a decree of a court of competent jurisdiction but also on merits as it was held that the claim itself was barred by limitation. As already pointed out, we are, however, not inclined to consider how this distinguishing feature would affect the case either of the judgment-debtor or of the decree-holder and, therefore, we are not inclined to consider this aspect further having regard to the view which we are taking on the question of limitation.
13. So far as limitation is concerned, we have already set out the dates on which the decree came to be passed, the different execution applications were filed and the date on which the execution application, out of which the present appeal arises, was also filed. One important fact which needs reference in the context of the contention relating to limitation is that the Limitation Act of 1908 was repealed and it was replaced by the Limitation Act of 1963 (hereinafter referred to as 'the 1963 Act') with effect from 1st April 1963. Substantial changes have been made in the limitation prescribed for suits and applications with all of which, however, we are not concerned. We are merely concerned in this case with limitation prescribed for execution of a decree. The decree sought to be executed in this case was the decree of the Original Side of the Bombay High Court and, therefore, of a Court established by a Royal Charter and decree made in the exercise of its ordinary original civil jurisdiction. The relevant article dealing with limitation for execution of such a decree is Article 163 of the Limitation Act, 1968, and the period of limitation prescribed by Article 183 is 12 years. In col. 3 which reads 'Time from which period begins to run', the commencement of the time is stated as follows:--
'When a present right to enforce the judgment, decree or order accrues to some person capable of releasing the right: Provided that when the judgment, decree or order has been revived, or some part of the principal money secured thereby, or some interest on such money has been paid, or some acknowledgment of the right thereto has been given in writing signed by the person liable to pay such principal or interest, or his agent, to the person entitled thereto or his agent, the twelve years shall be computed from the date of such revivor, payment or acknowledgment or the latest of such revivors, payments or acknowledgments, as the case may be.'
It is, not in dispute that the decree in the instant case could be continued to be executed if the decree is revived by continuing to make an application for execution within 12 years of the decision of the preceding application for execution. We are concerned with the proviso reproduced above and in the instant case, we are concerned only with the first part of the proviso dealing with the revival of the judgment, decree or order. So far as execution of decrees and orders is concerned, the 1963 Act does not retain the distinction made in the 1908 Act between decrees or orders of a court established by a Royal Charter and decrees or orders of other Courts. In other words, the different periods of limitation prescribed by Arts. 182 and 163 -- when Article 182 dealt with a period of limitation of three years in the case of execution of a decree or order of a civil court and Article 183 specifically dealt with a period of 12 years for enforcing a judgment, decree or order of any court established by Royal Charter -- have now been done away with. The provision made in Article 136 of the 1963 Act now deals with application for execution of decrees of all courts, whether of ordinary civil courts or of the Original Side of the High Court. The Article reads as follows :--
'Description of application.Period of limitation.Time from which period begins to run.
For the execution of any decree (Other than a decree granting a mandatory injunction) or order of any civil court.
Twelve yearsWhen the decree or order becomes enforce-able or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, when default In making the payment or delivery in respect of which execution is sought, takes place :
Provided (hat an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation.'
14. According to Mr. Deshpande, when the 1963 Act came into force on 1st January 1964, no execution application was pending. Factually this is the position. Mr. Deshpande then relies on the provisions of Section 30 Clause (b) of the 1963 Act. Section 30 reads as follows:--
'Notwithstanding anything contained in this Act,--
(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of seven years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier:
Provided that if in respect of any such suit, the said period of seven years expires earlier than the period of limitation prescribed therefor under the Indian Limitation Act, 1908 and the said period of seven years together with so much of the period of limitation in respect of such suit under the Indian Limitation Act, 1908, as has already expired before the commencement of this Act is shorter than the period prescribed for such suit under this Act, then, the suit may be instituted within the period of limitation - prescribed therefor under this Act. (b) any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian Limitation Act, 1908, whichever period expires earlier'.
Since we are dealing with an appeal arising out of execution proceedings, we are not concerned with Clause (a) nor with the proviso to that clause. Clause (b) of Section 30 provides in so far as an application is concerned, that where in the 1963 Act an application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, such application should be preferred or made within a period of 90 days next after the commencement of the 1963 Act or within the period prescribed for such appeal or application by the Indian Limitation Act, 1908, whichever period expires earlier. The effect of the provision in Clause (b) appears to he to make a specific provision in a case where the limitation prescribed for an appeal or an application under the 1963 Act is shorter than the limitation prescribed by the 1908 Act. Where the limitation for an appeal or an application under the 1963 Act is shorter than the period of limitation prescribed by the 1908 Act, Clause (b) requires that such appeal or application must be made within a period of 90 days after 1st April 1964 or within the period prescribed by the 1908 Act whichever period expires earlier. Now, according to Mr. Deshpande, no execution application having been pending on 1st January 1964, we must find out whether the period of limitation prescribed by the 1963 Act is shorter than the period prescribed for execution of such a decree by the 1908 Act. We have already referred to the provisions of Art, 183 which prescribes a period of 12 years from the day when the judgment, decree or order has been revived. Article 136 gives the starting point of the period of limitation as the day when the decree or order becomes enforceable. Thus according to Mr. Deshpande, the period prescribed by the 1963 Act being shorter, in the instant case the application for execution should have been made within 90 days from 1st January 1964 because the last execution application having been disposed of on 10th Sept. 1958 under the 1908 Act, an application for execution could have been filed on or before 10th Sept. 1970 under Article 183 of the 1908 Act. Therefore, according to Mr. Deshpande, the application for execution filed on 14th Feb. 1967 was barred by limitation.
15. Mr. Lalit appearing on behalf of the decree-holder has fairly brought to our notice a decision of a Division Bench of this Court where the scope Of Article 136 of the 1963 Act has been considered. That decision is in Nagardas Chhottalal v. Sardoolsingh, (1975) 77 Bom LR 479. The Division Bench in that case was required to consider the question as to whether Article 136 of the 1963 Act provides for a shorter period of limitation than the period of limitation prescribed in Article 183 of the 1908 Act. The starting point for the purpose of the provision in Col. 3 of Article 183 of the 1908 Act In that case was when part payment of money or interest was made or acknowledgement of the right thereto was given and the Division Bench took the view that the period of limitation provided by Article 136 of the 1963 Act is shorter than that provided by Article 183 of the 1908 Act and in such a case the provisions of Section 30(b) of the Limitation Act, 1963, would be attracted. The consent decree in that case was made on the Original Side of the High Court on 1st Sept. 1931. The decretal amount was to be payable in five-yearly instalments, the first of such instalments being payable on 1st Mar. 1934 and each subsequent instalment was to be paid thereafter on the 1st day of March of each subsequent year. In default of payment, there was an acceleration clause which provided that in the event of the judgment-debtor failing to pay any one of the said instalments within a period of three months from the due date of payment thereof, the whole or th balance of the said decretal amount of Rs. 20,000/- would become due and payable at once together with interest as therein provided. The Darkhast filed on 14th Nov. 1935 was ordered to be struck off by an order dated 29th July 1939. In the meantime, one of the partners of the decree-holder firm having died, an application was made on 17th October 1950 by the heirs and legal representatives of the partner for leave to execute the decree. This leave was granted by an order dated 19th October 1950. A Darkhast came to be filed on 19th April 1951. That came to be disposed of on 21st Dec. 1957 after a sale of some of the properties attached came to be confirmed. Later, after the 1963 Act came into force, the decree-holders filed a Darkhast application on 29th Nov. 1969. A notice under Order 21. Rule 22 was taken out. That notice was discharged by a single Judge of this Court by an order dated 1st Sept. 1970 holding that the execution of the decree was barred by limitation. It was this decision which was challenged before the Division Bench. While upholding the decision of the learned single Judge dismissing the execution application, the Division Bench pointed out that as the proviso contained in Col. 3 of Article 183 of the 1908 Act is omitted in Article 136 of the 1963 Act, the period of limitation for making an application for execution under the 1963 Act is shorter and, therefore, the provisions of Section 30(b) of the 1963 Act will apply in such a case. On the clear wordings of Article 136 and Section 30(b) of the 1963 Act, no other view is possible. Therefore, it appears to us that the Division Bench had taken the correct view of the law in holding that the deletion of the provision made in the proviso to original Article 183 of the 1908 Act in the 1963 Act had the effect of reducing the period of limitation for executing the decree like the one In the instant case and the provisions of Section 30(b) would consequently be attracted.
16. It is obvious that in the instant case, the proceedings on the last execution application having come to an and by the decision of the Division Bench in First Appeal No. 2 of 1958 dated 10th Sept. 1958 and if the 1908 Act would have continued to be in force. the decree-holders could have filed an application for execution on or before 10th September 1970. Since the provisions of Section 30 Clause (b) are now attracted and this period would be longer than the period of 90 days referred to in Clause (b), the execution application was required to be filed within a period of 90 days from 1st Jan, 1964.
17. Admittedly, the execution application is not filed within 90 days from 1st Jan. 1964. The mere fact that on an earlier occasion an application for execution was filed on 11th October 1965 and was allowed to be withdrawn will not affect the clear legal position that no valid execution application could have been filed beyond 1st April 1964, i. e., within 90 days from 1st Jan. 1964. Consequently, the Darkhast filed on 14th Feb. 1967, out of which the present appeal arises, was clearly barred by limitation and no valid steps for executing the decree could be taken by the decree-holder on the basis of such an , execution application. Consequently, the application for execution was itself liable to be rejected as barred by limitation.
18. The result, therefore, is that the appeal must be allowed and the original execution application must stand dismissed as barred by limitation. In the circumstances of the case, we make no order as to costs.
19. Appeal allowed.