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Talakchand Jayachand Doshi and ors. Vs. Bhaichand Gautamchand Doshi and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 54 of 1976
Judge
Reported inAIR1981Bom19; 1981MhLJ931
ActsLimitation Act, 1963 - Sections 18, 19, 20 and 30 - Schedule - Article 136; Limitation Act, 1908 - Schedule - Articles 182 and 183; Code of Civil Procedure (CPC), 1908 - Sections 48 - Order 21, Rule 66; Indian Registration Act - Sections 10, 23, 32 and 33
AppellantTalakchand Jayachand Doshi and ors.
RespondentBhaichand Gautamchand Doshi and ors.
Appellant AdvocateD.M. Pinge, Adv.
Respondent AdvocateK.J. Abhyankar and;V.N. Damle, Advs.
Excerpt:
.....shows that the amount paid by the judgment-debtor satisfied the instalments which were due up to sept. the decree-holder has failed only to the extent of about three instalments, between september and..........mention that between 1954 and 1961 a sum of rs. 7,900 had been paid by the judgment-debtor from time to time and in mar. 1961 the judgment-debtor had also acknowledged the amount which was due on the decree. by an order dated 7th of dec., 1970, the learned trial judge ordered the issue of process under order xxi, rule 66 of the civil p. c. which was challenged in first appeal no. 153 of 1971. that appeal, as already mentioned above, was dismissed by vaidya j. by his judgment and order dated 12th aug., 1975. it is this order that is the subject-matter of challenge in this letters patent appeal.4. mr. pinge, the learned advocate appearing for the appellants who are the legal representatives of the original judgment-debtor, has raised several points in this appeal. in the first place he.....
Judgment:

Jahagirdar, J.

1. This Letters Patent Appeal seeks to challenge the order of Vaidya J. dated 12th of Aug., 1975 by which he dismissed First Appeal No. 153 of 1971 preferred by the appellants in this appeal. The appeal before Vaidya J. arose out of an order passed in execution started by the respondents in this appeal. The appellants are the judgment-debtors and having failed both before the executing court and before Vaidya J., they have now preferred this Letters Patent Appeal.

2. In Special Civil Suit No. 60 of 1953 filed in the Court of the Civil Judge, Senior Division at Solapur, one Bhaichand Gautamchand Doshi obtained a decree based upon an arbitration award in the sum of Rs. 13,100. That decree provided that the defendants in that suit were to pay to the plaintiffs a sum of Rs. 13,100 with interest thereon from the date of the filing of the award which was 26th of Nov., 1953. The decree provided for the payment of the decretal amount in monthly instalments of Rs. 250, the first of such instalment falling due within one mouth of the date of the filing of the award. The decree further provided that in default of payment of any six instalments the plaintiff was at liberty to recover the whole amount then due. A charge for the decretal amount was kept on the residential house of the defendants. That house was situated at village Akluj in Malsiras Taluka of Solapur District. On 16th Mar. 1954 an application for certified copy of the decree was made and the same was obtained on 22nd Apr. 1954. It was then noticed that there was an error in the description of the property on which the charge had been Kept. Therefore, an application for amending the decree was made on 22nd of June, 1954. The decree was ultimately amended on 11th of Nov., 1954. In the meantime Bhaichand died and his legal representatives had executed a Power of Attorney in favour of one Shantilal on 13th of Apr., 1954. They presented the certified copy of the decree for registration on 10th of Feb., 1955. It may be noted at this stage that this is within three months of 11th of November, 1954 on which date the amended decree had come into existence. Subsequently the legal representatives of Bhaichand assigned the decree in favour of one Kishorkumar Khushalchand Rathod.

3. On 10th of Dec., 1968 a Darkhast, being Special Darkhast No. 53 of 1968, was filed by the legal representatives of Bhaichand along with the assignee of the decree for recovering the decretal amount which was in balance at that time. At this stage we should also mention that between 1954 and 1961 a sum of Rs. 7,900 had been paid by the judgment-debtor from time to time and in Mar. 1961 the judgment-debtor had also acknowledged the amount which was due on the decree. By an order dated 7th of Dec., 1970, the learned trial Judge ordered the issue of process under Order XXI, Rule 66 of the Civil P. C. which was challenged in First Appeal No. 153 of 1971. That appeal, as already mentioned above, was dismissed by Vaidya J. by his judgment and order dated 12th Aug., 1975. It is this order that is the subject-matter of challenge in this Letters Patent Appeal.

4. Mr. Pinge, the learned Advocate appearing for the appellants who are the legal representatives of the original Judgment-debtor, has raised several points in this appeal. In the first place he contended that the decree which undoubtedly required to be registered was not registered within the time mentioned in Section 23 of the Indian Registration Act. This contention was based upon a misunderstanding of the contents of the certified copy or the decree. When this was shown to Mr. Pinge he did not further press his submission in that regard.

5. The next contention urged by Mr. Pinge was that the Power of Attorney executed by the legal representatives of Bhaichand in favour of Shantilal who ultimately presented the decree for registration had not been registered and authenticated as required by Section 33 of the Registration Act. If this is so, says Mr. Pinge, then it could not have been registered under Section 32 of the Registration Act. Ac-cording to Mr. Pinge, Section 32 requires that every document to be registered under the Act is to be presented at the proper registration office by, among others, the agent of such person duly authorised by a Power of Attorney executed and authenticated in the manner mentioned in Section 33. Section 33 itself says, insofar as it is material to the facts of this case, that the Power of Attorney shall be recognised if the principal at the time of executing the Power of Attorney is a resident in any part of India in which the Registration Act is applicable and if the Power of Attorney is executed before and authenticated by the Registrar or Sub-Registrar within whose District or Sub-District the principal resides. The Power of Attorney on which action has been taken in the instant case, says Mr. Pinge, shows that it has been executed before and authenticated by a Judicial Magistrate of Pune and not the Registrar or Sub-Registrar within whose District or Sub-District the principal resided at the time of the execution of the Power of Attorney. This is a point which has been raised for the first time in this appeal. It had not been raised either in the court of first instance or before Vaidya J. In our opinion, this point raises mixed question of law and Facts some of which may arise under Section 10 of the Registration Act. We are, therefore, not entertaining this point which is being raised for the first time in this appeal.

6. The most substantive challenge which was made by Mr. Pinge to the maintainability of the Darkhast was one based upon the alleged bar of limitation, It is submitted that the Darkhast which was filed on 10th Dec., 1968 is hopelessly barred by time considered from any angle. The basis of this argument is that under the Limitation Act of 1963, the period of limitation prescribed for an execution application under Article 136 is twelve years. The starting point of the period of limitation, in so far as it is relevant for the purpose of this appeal, is the time when default was made in making the payment of money as required by the decree. Mr. Pinge says that under the decree which is sought to be executed, the entire decretal amount became payable as soon as there were defaults in the payment of six instalments. According to him, such defaults had taken place in the year 1954 itself and, therefore, this execution application filed in the year 1968 is barred by time. Though there were part payments from time to time up to the year 1956 and though there was an acknowledgment in March, 1961, these part payments and acknowledgment will not give any advantage to the decree-holder because the Limitation Act of 1963 has done away with the provisions contained in Sections 19 and 20 of the Limitation Act of 1908. Under the said Sections of the Limitation Act of 1908, if part payment was made or if an acknowledgment of the amount due was made, then a fresh period of limitation was available to the decree-holder. Under Sections 18 and 19 of the Limitation Act of 1963, which are somewhat analogous to Sections 19 and 20 of the Limitation Act of 1908, the benefit of a fresh period of limitation on account of part payment or of acknowledgment has been specifically excluded. The period of limitation, therefore, will have to be calculated by ignoring the part payments and the acknowledgment made by the judgment-debtor. If this is done, says Mr. Pinge, the Darkhast application filed in the year 1968 must be held to be barred by time.

7. Then there was the further argument of Mr. Pinge that the period of 12 years which is provided by Article 136 of the Limitation Act of 1963 is shorter than the period of limitation provided by Article 182 of the Limitation Act of 1908. This has the effect of attracting the provisions contained in Section 30(b) of the Limitation Act of 1963. If this is so then it was incumbent upon the decree-holder to present an application for execution within ninety days from the date of the commencement of the Limitation Act of 1963. This means that the execution application should have been presented before 1st of April, 1964. In support of these submissions Mr. Pinge relied upon the judgment of a Division Bench of this Court in Nagardas Chhotalal Shah v. Sardoolsingh Kanmal & Co., (1975) 77 Bom LR 479, which has held that the period of limitation provided under Article 183 of the Limitation Act of 1908 was longer than the period of limitation provided by Article 136 of the Limitation Act of 1963.

8. All the submissions of Mr. Pinge can be answered by considering in the first place as to whether the period of limitation prescribed under Article 136 of the Limitation Act of 1963 is shorter than the period of limitation prescribed by the Limitation Act of 1908 as mentioned in Clause (b) of Section 30 of the Limitation Act of 1963. Article 182 in the Schedule to the Limitation Act of 1908 provided a period of three years for the execution of a decree or order of any Civil Court not provided for by Article 183 or by Section 48 of the Civil P. C. 1908. Where a certified copy of the decree or order had been registered, the period was six years. In the third column of the said Schedule, the time from which period begins to run has been mentioned. The third column provides for the running of the time from different dates depending upon the situations envisaged in that column. The second column of the first Schedule of the Limitation Act of 1908, therefore, provided for a period of three years; or six years as in the present case where there is a certified copy of the decree. The period of three years or the period of six years cannot obviously be longer than the period of twelve years as provided under Article 136 of the Limitation Act of 1963. Mr. Pinge's argument is that if one reads Article 182 along with Sections 19 and 20 of the Limitation Act of 1908 it will have to be held that the period of limitation prescribed under Article 182 is more than the period prescribed by Article 136 of the Limitation Act of 1963. We are unable to accept this submission because the fact that a fresh period of limitation shall be computed from the date of the part-payment or from the date of acknowledgment does not expand the period of limitation prescribed by the first Schedule of the Limitation Act of 1908. The period of limitation prescribed by the Schedule continues to remain three years or six years where there is a certified copy of the decree. Irrespective of the results which may follow from the part payment or the acknowledgment mentioned in Sections 19 and 20 of the Limitation Act of 1908, the period of limitation prescribed by the Schedule continues to remain three years or six years. It is no answer to this position in law to resort to the provisions of Setion 48 of the Civil P. C., as was done by Mr. Pinge, and to contend that the period of limitation ultimately gets extended up to twelve years. Section 48 of the Civil P. C., which has since been repeal-ed after the coming into force of the Limitation Act of 1963, only provided that where an application to execute a decree has been made, no order for execution of the same shall be made upon any fresh application presented after the expiration of twelve years from the date of the decree sought to be executed or from the date of the default in making the payment in case of an instalment decree. Mr. Pinge read into these provisions an extended period of twelve years. We do not view the provisions in the same manner. The fact that Section 48 of the Civil P. C. then provided that the decree shall not be executed after a period of twelve years does not mean that the period of limitation prescribed by the Schedule to the Limitation Act of 1908 was twelve years. The period of limitation mentioned in the Schedule continues to remain the same, namely three years or six years under Article 182, In our opinion, therefore, neither the possibility of an extended time being available under Sections 19 and 20 of the Limitation Act of 1908, nor the provision that the decree shall not be executed twelve years after its date as provided for in Section 48 of the C. P. C. extends the period of limitation mentioned in the Schedule to the Limitation Act of 1908. If this is so, then the period of limitation prescribed by Article 136 of the Limitation Act of 1963 must be held to be longer than the period of limitation prescribed by the Limitation Act of 1908. In our opinion, Clause (b) of Section 30 of the Limitation Act of 1963 is not applicable to an execution application which was to be filed under old Article 182 and which has now to be filed under Article 136 of the new Act.

9. We must now briefly examine the reliance placed by Mr. Pinge on the judgment of the Division Bench of this Court in Nagardas's case 1975 77 Bom LR 479. At the outset it must be mentioned that that case was concerned with the applicability of the provisions of Section 30(b) of the Limitation Act of 1963 in the context of Article 183 of the Limitation Act of 1908. Article 183 of the Limitation Act of 1908 was concerned with a decree or order gassed by a Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction. The decree in Nagardas's case was a decree of the Original Side of this Court. Article 183 provided for a period of limitation of twelve years. In the third column of the Schedule to the Limitation Act of 1908 it had been mentioned that the time would begin to run when the present right to enforce the decree accrued to some person capable of releasing the right. In the same column, that is, in the third column, there was a proviso to the effect that when the decree had been revived or some part of the principal money secured thereby or some interest on such money had been paid or some acknowledgment of the right had been given in writing, then the twelve years was to be computed from the date of such revival, payment or acknowledgment. In other words, the period of limitation provided under Article 183 of the Limitation Act of 1808 could be regarded as twelve plus. That in fact was the reasoning adopted by the Division Bench while holding that the period of limitation of twelve years provided by Article 138 of the Limitation Act of 1963 was shorter than the period of limitation provided by Article 183 of the Limitation Act of 1908. The following observations to be found in the judgment of the Division Bench are helpful in adopting the criterion to determine the question with which we are concerned :--

'Thus to determine the question whether the period of limitation for an application is shorter under the 1963 Act than that under the 1908 Act, regard is not only to be had to the time specified in the second column of the Schedule, but regard is also to be had to the computation of such time having regard to the provisions of column 3 of the Schedule...'

Column 3 of the Schedule to the Limitation Act of 1908 does not increase the period of limitation mentioned in the second column against Article 182. If as a result of part payment or acknowledgment some extended time becomes avail-able, that does not alter or increase the period of limitation provided in the second column of the Schedule. At the most it can be said that the period of limitation prescribed under Article 182 of the Limitation Act of 1908 is three plus or six plus which cannot be predicated to mean that in all cases it will be more than twelve years. Looked at from any angle, therefore, we cannot agree that the period of limitation under Article 136 of the new Act is shorter than the period of limitation prescribed under Article 182 of the old Act.

10. Mr. Abhyankar appearing for the respondents referred to some decisions of the Calcutta, Gujarat and Kerala High Courts which have taken the view that an acknowledgment made when the Limitation Act of 1908 was in force gave a fresh life to the decree and the period of limitation should be calculated from the date on which the fresh life was given. This view taken initially by the Calcutta High Court in Subhodh Chandra Mitra v. Kanai Lal Mukherjee, : AIR1968Cal280 , has been specifically dissented from by our Division Bench in Nagardas's case 1975 77 Bom LR 479. We have, therefore, not thought it fit to examine Mr. Abhyankar's contention in that regard.

11. Having held that Article 136 of the Limitation Act of 1963 is applicable to the present Darkhast, the Darkhastdars are entitled to recover all monies that are due to them within a period of twelve years next before the date on which the present Darkhast was filed. As already mentioned above, the present Darkhast was filed on 10th Dec., 1968. Certain amounts had been paid by the judgment-debtor voluntarily without stipulating as to the instalment for which those amounts were to be appropriated by the decree-holder. In the absence of such stipulation or direction the decree-holder was free to appropriate all those amounts towards the earliest instalments. A rough calculation shows that the amount paid by the judgment-debtor satisfied the instalments which were due up to Sept., 1956. In any case, as far as the present Darkhast is concerned only the amounts which were payable after 10th Dec., 1956 can be recovered. As has been pointed out by a Full Bench of this Court in Chunilal Motiram v. Shivram Naguji Ghule, : AIR1950Bom188 , the right which is given to a decree-holder under a decree to enforce the payment of the full decretal amount in default of payment of any instalment is a right given to a decree-holder for his benefit. Although a default may take place, he may treat the decree as still a decree for instalments and he may pursue to execute his right to obtain the instalments as and when they fall due. This legal position is found to be supported by a judgment of the Supreme Court in Sree Bank Ltd. v. Sarkar Dutt Roy, : [1965]3SCR708 . We are, therefore, of the opinion that the present Darkhast is not wholly barred by limitation and it must be proceeded with for recovering all monies due from 10th Dec., 1956.

12. The Letters Patent Appeal thus fails substantially. The decree-holder has failed only to the extent of about three instalments, between September and Dec. 1956. In view of this fact, the appellants must pay the costs of this appeal to the respondents.

13. In the result, the appeal is dismissed subject to what has been said above relating to the period from which the amount can be recovered. The appellants shall pay the costs of Respondent No. 3 alone.

14. Ordered accordingly.


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