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Chandrashekar Gurupadappa Kaladagi Vs. Basawanneppa Shidappa Mali and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 210 of 1960
Judge
Reported inAIR1966Kant17; AIR1966Mys17; (1965)1MysLJ429
ActsBombay Agricultural Debtors Relief Act; Indian Limitation Act, 1908 - Schedule - Article 182; Indian Limitation (Amendment) Act, 1963 - Sections 15(1); Code of Civil Procedure (CPC), 1908 - Order 21, Rule 53, 53(1) and 53(2)
AppellantChandrashekar Gurupadappa Kaladagi
RespondentBasawanneppa Shidappa Mali and ors.
Excerpt:
.....182 - attachment of decree made under order 21 rule 53 (1) does not operate as stay to enable decree holder to exclude period covered by stay under section 15 (1) - as such appellant not entitled to exclude period between 23.07.1946 and 29.12.1954 under section 15 (1) - held, execution application barred by article 182. held see paras 8, 12 and 21. - constitution of india .article 26-a: [cyriac joseph cj, mrs. manjula chellur & n. kumar, jj] right to establish and maintain educational institution - held, the right to establish and maintain educational institution is also conferred on every religious denomination or any section thereof, irrespective of the fact that they belong to majority or minority community in the nation, under article 26(a) of the constitution. education is..........said act, the debt due under the decree must be held to be extinguished and therefore the assignee decree-holder was not entitled to execute the decree. the executing court held that the judgment-debtor was not a debtor under the bombay agricultural debtors relief act and, therefore, his contention that the execution proceedings could not be maintained on that score was rejected. it, however, accepted the case of the judgment-debtor that the execution application was barred by time and accordingly dismissed the execution application.(6)the applicant preferred an appeal in the court of the first additional district judge of belgaum against the dismissal of his execution petition. the learned appellate judge confirmed the order passed by the executing court and dismissed the appeal. and it.....
Judgment:

(1) This appeal arises in execution proceedings, and the only question of law for decision is one of limitation. The facts leading to this appeal are as follows:

(2) One Sadashiva Mathade instituted Civil Suit No. 3 of 1942 in the Court of the Civil Judge, Junior Division, Bailhongal, against one Shiddappa Mali. That suit was dismissed. Besides, the Court awarded compensatory costs of Rs. 500 against the plaintiff and directed him to pay the same to the defendant. The appellate Court confirmed that decree in Appeal on 31-1-1946.

(3) One Krishnaji Joshi filed Civil Suit No.189/45 against Shiddappa Mali who was the defendant in C.S. No. 3 of 1942, and in whose favour, as already stated, there was decree for payment of Rs. 500 as compensatory costs. Krishnaji attached the said decree in C.S. 3/42 before judgment. Krishnaji's suit was decreed and the order of attachment was made absolute on 14-8-46. Krishnaji then made an application on 23rd July 1946 to the Debt Adjustment Board under the Bombay Agricultural Debtors Relief Act for the adjustment of the debts due to him under the decree in Civil Suit No. 189 of 1945. That application came to be dismissed on 29th December 1954 on the ground that the debt due under the decree was adjusted out of Court.

(4) On 27th November 1950 the said Krishnaji sought to execute the decree which was attached by him viz. the decree in C.S. No. 3/42. However, the objections raised by the office to the application filed by Krishnaji having not been removed it was dismissed on 3rd January 1951. On 18th July 1955, the decree in C.S. No. 3 of 1942 was assigned to the present appellant by the legal representatives of Shiddappa Mali, and thereafter on the 22nd of August 1955, Regular Darkhast No. 150/55 has been filed by the appellant as an assignee of the decree to recover the amount due under it.

(5)The judgment-debtor resisted the execution of the decree essentially on two grounds viz. that the darkhast was not in time and that the judgment-debtor being a debtor under the Bombay Agricultural Debtors Relief Act and no application having been made against him to have the debt adjusted under the said Act, the debt due under the decree must be held to be extinguished and therefore the assignee decree-holder was not entitled to execute the decree. The executing Court held that the judgment-debtor was not a debtor under the Bombay Agricultural Debtors Relief Act and, therefore, his contention that the execution proceedings could not be maintained on that score was rejected. It, however, accepted the case of the judgment-debtor that the execution application was barred by time and accordingly dismissed the execution application.

(6)The applicant preferred an appeal in the Court of the First Additional District Judge of Belgaum against the dismissal of his execution petition. The learned appellate Judge confirmed the order passed by the executing Court and dismissed the appeal. And it is the correctness of this decree that is being challenged by Mr. Swami appearing for the assignee decree holder.

(7) Thus the question that requires determination is whether the darkhast filed on 22nd August 1955 is in time. It is to be seen from the said darkest that what is sought to be executed is the decree made on the 31st of January 1946. Prima facie, the application would be barred under the provisions of Art. 182 of the Indian Limitation Act (IX of 1908) unless the appellant shows that he is entitled of and Mr. Swami's contention is that he is entitled to exclude that period by virtue of S. 15(1) of the Indian Limitation Act (Act No. 36 of 1963) since the effect of the order of attachment under Rule 53 of Order XXI of the Code of Civil Procedure is to stay the execution; and if the execution of the decree is stayed, then the decree-holder having been prevented from executing the decree, will be entitled to exclude that period that the provisions of S. 15(1) of the Indian Limitation Act.

(8) Section 15(1) of the Limitation Act provides:

'In computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn shall be excluded.'

Thus, what is required by sub-section (1) of S. 15 is that the execution of the decree must be stayed specifically by an order of injunction or by an order of stay and if such an order is produced, then the period between the date on which the order of injunction or stay of execution was issued or made and the date on which it was withdrawn, has got to be excluded.

(9) Mr. Swami contends that the effect of the order of attachment under Rule 53 of Order XXI C.P.C. is to stay the execution of the decree, and the stay must be deemed to have been withdrawn or vacated when the application made by Krishnaji to the Debt Adjustment Board for the adjustment of the debt due under the decree came to be disposed of on 29th December 1954. If that period is excluded, as he contends it must be excluded, then, there is no dispute that the present application for execution of the decree would be within the period of limitation. The question is whether the order made under clause (a)of sub-rule (1) of Rule 53 operates as a stay so as to exclude the period covered by the stay under S. 15(1) of the Limitation Act. The provisions of Rule 53(1) are as follows:

'Where the property to be attached is a decree either for the payment of money or for sale in enforcement of a mortgage or charg the attachment shall be made,--

(a) if the decrees were passed by the same Court, then by order of such Court, and

(b) if the decree sought to be attached was passed by another Court, then by the issue to such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other Court to stay the execution of its decree unless and until--

(i) the Court which passed the decree sought to be executed cancels the notice, or

(ii) the holder of the decree sought to be executed or his judgment-debtor applies to the Court receiving such notice to execute its own decree.'

Thus it would be seen that the provisions stated above provide for the attachment of the decree as stated in Cls. (a) and (b) of sub-rule (1) for a limited period.

(10) In the instant case, both the decrees are passed by the same Court viz., the Court of the Civil Judge, Junior Division, Bailhongal, and the attachment has been made by the order passed by that Court under clause (a)and, therefore, we are not concerned with the provisions of clause (b)of the above sub-rule (1) in this case.

(11)The question is, what is the effect of the order of attachment made under clause (a) of sub-rule (1) of rule 53 of Order XXI of the Code of Civil Procedure. In this connection, it is necessary to see the provisions of sub-rule (2) of Rule 53. It provides that

'Where a Court makes an order under clause (a) of sub-rule (1), or receives an application under sub-head (ii) of clause (b)of the said sub-rule, it shall, on the application of the creditor who has attached the decree or his judgment-debtor, proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed.'

This sub-rule empowers the Court to permit the execution of the decree attached on the application made by the attaching creditor or his judgment-debtor i.e. the holder of the decree sought to be executed. The only condition is that the net proceeds realised by the execution of the decree have got to be utilised in satisfaction of the decree sought to be executed. Therefore, it would appear by reason of the provisions of sub-rule (2) that the attachment by itself would not operate as a stay of the execution of the decree not does it prevent the execution of the decree by the decree-holder or the attaching creditor.

(12)Thus on a plain reading of the provisions of sub-rules (1) and (2) of Rule 53 of Order XXI of the Code of Civil Procedure, it is clear that the attachment of the decree does not operate as a stay of the execution of the decree within the meaning of S. 15(1) of the Indian Limitation Act.

(13) However, Mr. Swami, in support of his contention that the attachment of the decree operates as a stay, relies very strongly on the decision reported in Mahadev Vasudeo v. Janak singh Saigal, : AIR1954Bom251 . The facts of the case disclose that the attachment was sought to be made under O. XXI R. 53(1) clause (b)of the Code of Civil Procedure, and the question arose whether the order made by the Calcutta High Court operated as an attachment of the decree in suit No. 842 of 1952. And during the course of the investigation, Chagla C.J. analysed the provisions of Rule 53 of Order XXI of the Code of Procedure and then observed in Para 4 of the judgment as follows:

'Where the decree which is sought to be executed and the decree which is sought to be attached were passed by the same Court, then all that is necessary in order to effectuate the attachment complete. It is clear that the effect of the attachment would be to prevent the holder of the decree attached from receiving any payment from the judgment-debtor contrary to the attachment. The principal underlying S. 64, Civil Procedure Code would come into play

(14) Mr. Swami very strongly relies on the other observations made in the same paragraph which are to the following effect:

'But whatever the position of the judgment-debtor of the decree attached might be, it is clear that as far as the holder of the decree attached is concerned an order passed under sub-rule (1) of Rule 53 must operate as a stay of execution. He would be prevented from executing the decree and receiving from his judgment-debtor the amount due under the decree, and the stay can only be got over provided the conditions of executing the decree laid down in sub-rule (2) are carried out, and that is that he must make an application for execution and the net proceeds in satisfaction of the decree are applied to the credit of the decree sought to be executed.'

(15) Mr. Swami contends that the effect of this observation is to state that an order passed under sub-rule (1)of Rule 53 operates as a stay of execution and if so, such an order would come under S. 15(1) of the Limitation Act, and his client would be entitled to exclude the period stated above to bring the application within limitation. In my opinion, that is not the effect of the statement made by Chagla C.J. what his Lordship has stated is that such an attachment will operate as a stay for a limited period until the events mentioned in sub-rule (2) takes place. There is no specific order staying the execution of he decree. The decree-holder or the holder of the decree is entitled to execute the decree as provided by sub-rule (2)of Rule 53 of Order XXI of the Code of Civil Procedure. But the holder of the decree is prevented from executing the decree for his own benefit though he is at liberty to execute the decree and apply the net proceeds of the decree to the credit of the decree sought to be executed. The learned Chief Justice did not, therefore, in my opinion, intend to suggest that an order made under Rule 53 operates as a stay for the purpose of S. 15(1) of the Limitation Act since he has made it absolutely clear in another part of his judgment that sub-rule (2)of Rule 53 enables both the attaching creditor and the judgment-debtor to execute the decree attachment of the decree under Rule 53(1) is to stay the execution of the decree so as to bring the same within the provisions of S. 15(1) of the Indian Limitation Act.

(16) Mr. Swami then sought to rely on the two decisions of the Calcutta High Court reported in Kiranshashi Debi v. Chandrika Prosad Singh, 30 Ind Cas 587: (AIR 1916 Cal 620) and Charu Chandra v Fanindra Narain, 68 Ind Case 897: (AIR 1923 Cal 310(2)). So far as the second case is concerned i.e 68 IC 897: (AIR 1923 Cal 310(2)) it is clear that there was a specific order of attachment and the Court held that since there was a stay in terms of the order made by the Court, the period covered by the stay must be excluded. Therefore, on the facts of that case, since there was in terms a stay of the decree the Court held that order of stay fell within the provisions of section 15(1) of the Limitation Act and that the decree-holder was entitled to exclude the period covered by the stay.

(17) So far as the first case is concerned he order of attachment was made under clause (i)(b) of rule 53 of O. XXI of the Code of Civil Procedure, ant their Lordships stated that the effect of such an attachment would be to stay the execution of the decree unless and until the events mentioned in the said rule happened, thus making it clear that the stay is only for a limited period. But their Lordships have not stated that such a limited stay falls within the purview of section 15(1) of the Indian Limitation Act.

(18) However, there is a later decision of the said Court reported in Saroj Ranjan Sinha v. Joy Dura Dassi : AIR1934Cal140 wherein their Lordships held that

'an attachment order in favour of the judgment-debtor has not the effect of staying the execution permanently. It does not prevent the decree-holder from applying for execution of his decree for money after allowing the decree of the judgment-debtor against him to be set off'. The contention raised in that case was that the effect of the attachment before judgment brought about at the instance of the appellant was to arrest or stay the execution of the decree of the decree-holder. Their Lordships negatived this contention by pointing out that it is open to both the judgment-debtor and the decree-holder to execute the decree which was the subject matter of execution and therefore the attachment does not operate as a stay. Though they have not referred to the provisions of sub-rule (2) of Rule of Order XXI of the Code of Civil Procedure, yet, they, in terms, stated that since both the attaching creditor and the decree-holder are entitled to execute the decree, the order of attachment does not operate as a stay. It appears to me that the view taken in the later decision of he Calcutta High Court is the better view to take, and this I should state, with respect, accords with the view taken by me.

(19) That the attachment of a decree made under Rule 53(1) of Order XXI of the Code of Civil Procedure does not operate as a stay so as to enable the decree-holder to exclude the period covered by stay under section 15(1) of the Indian Limitation Act is also the view taken in the following decisions:

Chanbasappa Nagappa v. Kolibasappa Basappa. AIR 1924 Bom 383; Virina Soorayya v. Virina Mallayya, : AIR1955AP229 (later followed by the same High Court in Brahmiah v. Chelavapilla Setti, : AIR1964AP439 ) and Arumugha Bhakthar v. Narasimha Iyengar, : AIR1961Mad299 .

(20) The result of holding otherwise, as pointed out in AIR 1924 Bom 383, would be that the proceedings between the original decree-holder and his judgment-creditor might continue over an unlimited space of time to the great disadvantage of the original judgment-debtor who might be faced with proceedings in execution many years after the decree had been passed without any intermediate steps being taken in aid of execution; and that this is not intended is quite clear from the provisions of sub-rule (2) of Rule 53 of Order XXI of the Code of Civil Procedure where both the attaching creditor and the judgment-debtor are at liberty to execute the decree as stated therein.

(21)Thus, for the reasons stated above, I hold that the appellant is not entitled to exclude the period between 23rd July 1946 and 29th December 1954 within the meaning of S. 15(1) of the Indian Limitation Act. If so, it must be held that the present application to execute the decree filed on the 22nd of August 1955 is clearly barred by the provisions of Article 182 of the Limitation Act.

(22) Consequently, the decree passed by the lower appellate Court is confirmed and this appeal is dismissed with costs.

(23) Appeal dismissed


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