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Virina Soorayya Vs. Virina Mallayya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetter Patent Appeal No. 210 of 1951
Judge
Reported inAIR1955AP229a; [1955]28ITR362(AP)
ActsIncome-tax Act, 1922 - Sections 46(2); Code of Civil Procedure (CPC), 1908 - Order 21, Rule 53; Limitation Act, 1908 - Sections 15 - Schedule - Article 182; Revenue Recovery Act, 1890 - Sections 5
AppellantVirina Soorayya
RespondentVirina Mallayya and ors.
Appellant AdvocateC. Rama Rao, Adv.
Respondent AdvocateM.S. Ramachandra Rao and ;M. Krishna Rao, Advs.
Excerpt:
.....made default in payment of income tax - decree attached by collector and request made to court to stay execution of decree - decree holder filed execution petition which was barred by limitation as filed after three years from date of final order - decree holder took plea that stay against decree was granted and such period should be excluded from limitation period - right to execute decree was not affected by stay order - order made under order 21 rule 53 by attaching court was not stay order under section 15 - period could not be excluded from period of limitation - held, execution application barred by limitation period. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and..........the collector attached thed decree in o. s. no. 95 of 1938. he also requested the court to stay execution of the decree. on 4-7-1941, the collector filked an execution petition for executing the decree but it was rejected for default on 6-9-1941. he filed another execution application e. p. no. 305 of 1941 on 29-10-1941, but that was dismissed on 12-8-1943, on the objection taken by the decree holders that the collector had no right to execute the decree. on 1-12-1944, the decree holders filed an execution petition to execute the decree. the district munsif and on appeal, the subordinate judge held that the application was barred by limitation as having been filed more than three years from the dateof the final order.the decree-holders preferred an appeal to the madras high court.....
Judgment:

Subba Rao, C.J.

(1)This is a Letters Patent Appeal against the Judgment of Balakrishna Ayya J., of the Madras High Court. The question raised is one of limitation and the following facts may be useful for appreciating it.

(2) Veerina Venkatarathnam and some others filed O. S. No. 95 of 1938 on the file of the District Munsif's Courtof Rajamundry, to enforce a mortgage. On 7-10-1938, a preliminary decree was made therein. Final decree followed on 9-2-1940. On 30-1-1933, as the decree-holders made default in payment of income-tax, the Income-tax Officer issued a certificate to the Collector of East Godavari instanating to him that a sum of Rs.1,080-1-0 was due from the decree-holders and requesting him to recover the same under the provisions of S. 46(2), Indian Income-tax Act.

Pursuant to the certificate, the Collector attached thed decree in O. S. No. 95 of 1938. He also requested the court to stay execution of the decree. On 4-7-1941, the Collector filked an execution petition for executing the decree but it was rejected for default on 6-9-1941. He filed another execution application E. P. No. 305 of 1941 on 29-10-1941, but that was dismissed on 12-8-1943, on the objection taken by the decree holders that the Collector had no right to execute the decree. On 1-12-1944, the decree holders filed an execution petition to execute the decree. The District Munsif and on appeal, the Subordinate Judge held that the application was barred by limitation as having been filed more than three years from the dateof the final order.

The decree-holders preferred an appeal to the Madras High Court against the order of the Subordinate Judge. Balakrishna Ayyar J., agreed with the Subordinate Judge's view that the said E. P. was barred by limitation and dismissed the appeal. But, in dismissing the appeal, he granted leave to prefer a Letters Patent Appeal. One of the decree-holders his has preferred this appeal against the order of Balakrishna Ayyar J.

(3) Mr. Rama Rao, learned Coiunsel for the appellant raised before us two points:

(i) The execution application filed by the Collector was one in accordance with law and the present execution application having been filed within three years from the date of the final order of the said application, it would be well within time.

(ii) The stay order issued by the Collector would enable the decree-holder to exclude the time covered by the operation of the said order and, if so excluded, the present application would be within time.

(4) To appreciate his contention, some of the relevant statutory provisions may be read at this stage:

LIMITATION ACT:

Art. 182:--

For the execution Three(Where the application next hereinafter of a decree or years.mentioned has been made) the date of order of any civil court.the final order passed on an application made in accordance with law to the proper court for execution, or to take some step-in-aid of execution of the decree or order.

CIVIL PROCEDURE CODE:

O. 21, R. 53:

1. Where the property to be attached is a decree either for the payment of money or for sale in enforcement of a mortgage or charge, the attachment shall be made.

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(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 applied to the court receiving such notice to execute its own decree.

(3) The holder of a decree sought to be executed by the attachment of another decree of the nature specified in Sub-r. 1 shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof.

INCOME-TAX ACT:

S. 46(2):

The Income-tax Officer may forward to the Collector, a certificate under his signature specifying the amount of arrears due from an assessee and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue.

Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount have the powers which under the Code of Civil Procedure, 1908, a Civil Court has for the purpose of the recovery of an amount due under a decree.

(5) The effect of the aforesaid provisions may be summarised thus: An execution application would be within time if filed within three years from the date of the final order made in the previous application filed in accordance with law. A decree-holder may attach a decree obtained by his judgment-debtor. The attachment can be effected by the Court by issuing a notice to the Court which passed the decree sought to be attached requesting thecourt to stay the execution. The holder of a decree sought to be executed is deemed to be the representative of the holder of the attached decree and, in that capacity, he is entitled to execute the attached decree.

The Collector, on receipt of a certificate from the Income-tax Officer specifying the amount due from the assessee empowered under S. 46, Indian Income-tax Act, to proceed to recover the said amoiunt as if it were an arrear of land revenue, Further, for the purpose of recovering the said amount he has the same pwoers which a civil court has for the purpose of recovery of an amount due under a decree. The Collector, therefore, under the said provisions can attach the decree by the assessee, for his position is equated to that of a court passing a decree for the said amount.

So far, there is no difficulty. Under the aforesaid provisions, the Collector in the instant case we well within his rights when he issued a notice to the court attaching the decree obtained by the appellant. But, the question is, whether the said provisions expressly or by necessary implication empower the Collector to file an execution application as if he were the holder of a decree against the appellant.

(6) As strong reliance is placed upon the provisions of S. 46, Indian Income-tax Act, they may now be scrutinised with some care. Under s. 46(2) on the receipt of a certificate from the Income-tax Officer, the collector shall proceed to recover from the assessee the amount specified therein as if it were an arrear for land revenue. The Collector's right to recover the amount is, therefore, conditioned by the provisions of the Revenue Recovery Act prescribing the moder of collection of arrears of land revenue.

To put it differently, is there a provision in the Revenue Recovery Act, empowering the Collector to file an application for execution of a decree obtained by the assessee against a third party? We find no such provision therein.

Under S. 5, Revenue Recovery Act, whenver revenue may be in arrear, it shall be lawful for the Collector or other Officer empowered by the Collector in that behalf to proceed to recover the arrear together with interest and costs of process by the sale of the defaulter's moveable and immoveable property or by execution against the person of the defaulter in manner therein provided. The Collector, therefore, can either sell the defaulter's moveable or immoveable property or recover the amount by execution against the person of the defaulter.

Sections 11 to 23 prescribe the procedure for bringing to sale the moveable property of the defaulter. Sections 25 to 36 provide for the realisation of the amount by the sale of the immoveable property of the defaulter. Sections 48 and 49 regulate the machiery for the recovery of the amount due from the person of the defaulter. There is no provision enabling the Collector to recover the amount due from the assessee by executing the decree obtained by the assessee in asnother court by filing an application to execute the same. The power conferred on the Collector under S. 46(2) is limited and circumscribed and it does not give him the right to apply for executing the attached decree.

(7) Nor can we find such a right under the proviso to S. 46(2). Under that proviso, the Collector has, for the purpose, the powers which under the Code of Civil Procedure, a Civil Court has for the purpose of recovering the amount due under a decree. His powers are equated to that the a civil court. It cannot be said that a civil court attaching the decree of another court can itself file an application, for executing the decree of that court. There is no provision in the Civil Procedure Code and none has been shown to us. Indeedd, under O. 21, R. 53, only the holder of the decree sought to be executed is deemed to be the representative of the holder of the attached decree. In no senseof the term can a civil court attaching decree be the holder of the decree within the meaning of the said clause.

On a plaint reading of the express terms of the relevant provisions, we have no hesitation to hold that the Collector hasno right to file an execution application and, therefore, the application filed by him to execute the attached decree was not one made in accordance with law.

(8) But, as the learned Counsel cited some decisions in suport of his contentions, we shall proceed to deal with them. The decision of Sir Lionel Leach, C. J., and Patanjali sastri J. in -- 'Nakamma v. Bhansayya', AIR 1947 Mad 121 (A does not lay down anything more than that an attaching decree-holder is a representative of the holder of the decree attached, and as such, an application for execution filed by the former would save thebar of limitation under Art. 182, Limitation Act.

Nor is the decision of the Full Bench in -- 'Manickam Chettiar v. Income tax Officer, Madurai', AIR 1938 Mad 360 (FB) (B) on which some reliance was placed by the learned Counsel for the appellant, of much relevance. There, the petitioner obtained a money decree against the respondent and, in execution thereof, attached and brought to sale some moveable properties of the respondent. The Income tax due by the respondent being in arrear, the income tax Officer applied to the executing Court under S. 151, Civil P. C., for an order directing paykent out to him from the sale proceeds.

After reserving the amount required for the costs of the executioin, the executing Court ordered thebalance to be paid out to the Income-tax Officer. The Full Bench held that S. 46, Indian Income-tax Act, 1922, wasnot a bar to the application made by the Income-tax Officer and that the executing court had power to order the apyment outof the amount due to Government on mere application. At p. 363, the learned Chief Justice observed:

'This section, however, does not profess to be exhaustive and it cannot without express words to that effect take away from the Crown the right of enforcing payment by any other method open to it. Therefore, I do not regard S. 46 as imposing a bar to an application of the nature of the one we are now concerned with.

According to the Full Bench decisioin, the Crown, being entitled to prior payment over all unsecured creditors, can file an application under S. 151, Civil P. C., for the payment of the dues out of the sale proceeds in Court realised in execution of a decree by a third party.

Assuming that the Crown has such right, we fail to see how that decisiion supports the applicant. The Full Bench does not lay down that the Crown can file an application for the execution of decree obtained by third parties for the purpose of realising its dues. The limited proposition accepted by the Full Bench also apears to us to be of doubtful validity but,being a Division Bench, we are bound by it. But we cannot extend its scope so as to abrogate all the procedural rules.

(9) The decision of the Rangoon High Court in -- 'Panalal Jagannath v. Collector of Mandalay AIR 1930 Rang 342 (C) bearing on the scope of O. 33, Rr. 13 and 14, Civil P. C. is relied upon by way of analogy. There, an application to file an appeal in forma pauperis was dismissed and the appellant was directed in the decree to pay Government the sum of Rs.700 towards court-fee. As he made default in the payment of the court-fee, the Collector sent a letter to the District Judge before whom execution proceedings were pending asking him to reserve the said amount out of the sale proceeds in execution.

The learned Judges held that the Collector in recovering the4 amount acts on behalf of the Government and that the Collector may execute the decree like any other suitor. The reason of the decision is found at p. 343. The learned Judge said.

'As soon as the suit is completed, the plaintiff, if successful, suffers the disadvantage imposed by O. 33, R. 10. If he is unsuccessful, as in the present case, he comes within the pruview of O. 33, R. 11. The Court then order the unsuccessful plasintiff to pay the court-fees which he would have had to pay had he not been permitted to sue as a pauper.

This Court fee, therefore, becomes payable under the decree of the trying Court, the decree itself, to that extent, becomes a money decree in favour of the Collector, as is shown by O. 33, R. 13, which, for certain purposes, makes the Government a party to the suit. Further under R. 14, it is directed that a copyof the decree shall forthwith be sent to the Collector.'

At P. 344 the learned Judges proceeded to state:

'He is the officer in charge of the collection of the Government revenue and the copy of the decree is merely sent to him to uniform him that a money decree has been passed by a civil Court in his favour against someone. If he wishes to realise this money and fails to get payment, that decree is executable by a Civil Court which has jurisdiction, if he applies for execution.'

(10) It is, therefore, clear from the aforesaid observations that the Collector in so far as there was a decree in favour of the Government for court-fees was held to be the holder of the decree and therefore was entilted to execute the decree. In this case, there was no decree in favour of the Collector representing the Government. He only functioned as if he were a Court for the purpose of attaching the decree now sought to be executed.

We therefore hold that the Collector, not being the holder of the decree, was not in law entilted to file an execution application for the execution of the decree attached. It follows that the execution application filed by him was not one made in accordance with law and, therefore, it could not save the bar of limitation.

(11) The learned Counsel then contended that by reason of S. 15, Limitation Act, the present execution application would be in time. Section 15(1), Limitation Act reads:

'In computing the period of limitation prescribed 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 of which it was issued or made, and the days on which it was withdrawn, shall be excluded.

The Order of stay issued by the Collector to the District Munsif reads as follows:

'I have the honour to inform you that the decree obtained in your Court on 7-10-1938, by Messrs, Veerina Venkateswara and others in O. S. No. 95 of 1938, in which, he was plaintiff and Boddu Appanna and others are defendants, has been attached by this Court on the application of the Income-tax Officer, Rajamundry, in the suit specified above.

You are therefore, requested to stay the execution of the decree of your Court until you receive an intimation from this Court that the present notice has been cancelled or until execution of the said decree is applied for by the holder of the decree now sought to be executed or by his judgment-debtor.'

It is conceded that,. if the time during which the stay order operated is excluded, the execution application would be within time. But it is contended that S. 15 has no application to a case where the execution is not completely and absolutely stayed. Section 15 was subjected to judicial scrutiny by various High Courts. Beasley C. J. and Bardswell J. in -- 'Kadimcherja Raju v. Kondapi Ayyaparaju', AIR 1935 Mad 352 (D) described the scope of S. 15 thus:

'In our view, the stay was a limited one. It was an order merely staying the Court. It did not put an end to the rights of either the judgment-creditor or the judgment-debtor to apply for execution which within the plain terms of the order they are entitled to do. The execution of the decree, therefore, remained stayed, for just so long as the judgment-creditor or the judgment-debtor chose not to apply for execution.

As soon as either of these parties applied for execution, then the stay would be removed. It was thus within the power of the execution petitioner at any time himself to remove the stay and under these circusmtances, in our view, it is impossible to say that this is a case which comes within S. 15, Limitation Act.'

(12) The learned Judges, therefore, confined the scope of S. 15 to an order putting an end to the rights of the judgment-creditor or judgment-debtor to apply for execution for a particular period but not to a case where the hands of the Court are stayed leaving intact the right of the parties to execute the decree.

(13) So too, the Bombay High Court in -- 'Chambasappa Nagappa v. Holibasappa Basappa', AIR 1924 Bom 383 (E) confined the operation of the section to an absolute stay and not to a limit stay as would be ordered by a notice under O. 21, R. 53 (1) (b). At p. 384, the learned Judge observed--

'The stay does not prevent either the holder of the decree sought to be executed or his judgment-debtor from seeking to execute the original decree and that being the case, time must be taken as running against them.'

The Calcutta High Court in -- 'Saroj Ranjan Sinha v. Joy Durga Dassi', AIR 1934 Cal 140 (F) accepted and followed the view of the Bombay High Court At p. 142, the learned Judge stated:

'....................... the express words of O. 21, R. 53, as they now stand after amendment leave no room for doubt that it is open both to judgment-debtor and decree-holder in the present case to execute the decree which is the subject-matter of exection.'

(14) It will be seen from the aforesaid decisions, that the scope of the provisions of S. 15, Limitation Act, is confined only to an absolute stay granted by Courts. The principle underlying the section is apparent. If the execution of the decree was stayed, it would be an unnecessary burden on the decree-holder and an empty formality if he should be compelled to file execution application at the risk of his decree otherwise getting barred. A decree, which has been stayed, cannot obviously be executed. So, under this section, the period covered by the stay order is allowed to be execluded from the period of limitation.

That reason cannot hold good if the decree-holder or his representative, is not prevented from executing the decree. If he has a right to execute the decree and has failed to exercise that right, it can only be at his own risk. Under O. 21, R. 53, the attaching Court requests the Coiurt which passed the decree attasched to stay execution of the decree until the Court which passed the decree sought to be executed cancelled the notice, or, 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. Under that rule, the Court's hands are stayed. But both the holder of the decree sought to be executed and the holder of the decree attached can, if they choose, execute the decree. Their right to execute the decree was not affected in any way by the stay order.

In the circumstances, following the aforesaid decisions, we hold that an order made under O. 21, R. 53, Civil P. C., by the attaching Court was not a stay order contemplated by S. 15, Limitation Act and therefore that period could not be excluded from the period of limitation prescribed for the filing of the execution application. The present execution application having been admittedly filed more than three years from the date of the final order, is barred by limitation under Art. 182, Limitation Act.

(15) The appeal fails and is dismissed with costs.

(16) H. S. P. Appeal dismissed.


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