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Bishan Sarup Vs. Ch. Richpal Singh - Court Judgment

LegalCrystal Citation
Subject Limitation
CourtAllahabad
Decided On
Reported inAIR1948All29
AppellantBishan Sarup
RespondentCh. Richpal Singh
Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under..........civil judge was of opinion that the effect of the order of 17-1-1936, was that the previous execution application was dismissed and the mere fact that the proceedings continued till 16-11-1942 will not wipe out that effect.4. we have heard the learned counsel for the parties at considerable length, but, after giving our anxious consideration to the case, we have come to the conclusion that the decision under appeal is right, although the precise reasons which weighed with the learned judge do not command our assent.5. it appears to us that the legal effect of the order of 5-1-1940 was to bring into existence a fresh decree, even though the old decree, in a notional sense, continued. before, however, we address ourselves to this question we must deal with articles 181 and 182,.....
Judgment:

Sinha, J.

1. This is an appeal by the decree-holder, whose application for execution has been dismissed on the ground of limitation. The facts are briefly these : on 9-1-1931 the appellant obtained a simple money decree against five persons, including the respondent, Ch. Richhpal Singh. On 13-4-1931 an application for execution was presented by the appellant against all the judgment-debtors, barring Ch. Richpal Singh. In 1936 the other four made an application under the Encumbered Estates Act. On. 17-1-1936 the Collector passed the usual order under Section 6 of that Act. The proceedings under Section 9 followed and on 5-1-1940 the liability of all the judgment debtors, including Ch. Richpal Singh, was deter-mined and apportioned. On 16-9-1942, the application for execution was dismissed. The last application, which has given rise to the present appeal, was made on 19-11-1943, against Ch. Richpal Singh. An objection was taken to this application on the ground that it was barred by limitation. The learned Civil Judge acceded to this objection and dismissed the application. The decree-holder has come to this Court in appeal

2. The bar of limitation was raised on the basis of a two-fold plea - Section 48, Civil P.C. and the usual plea based on the three years' rule of limitation. The former did not commend itself to the learned Civil Judge, the latter did, and what falls to be considered is whether he was right in his view that the application is barred by limitation.

3. The learned Civil Judge was of opinion that the effect of the order of 17-1-1936, was that the previous execution application was dismissed and the mere fact that the proceedings continued till 16-11-1942 will not wipe out that effect.

4. We have heard the learned Counsel for the parties at considerable length, but, after giving our anxious consideration to the case, we have come to the conclusion that the decision under appeal is right, although the precise reasons which weighed with the learned Judge do not command our assent.

5. It appears to us that the legal effect of the order of 5-1-1940 was to bring into existence a fresh decree, even though the old decree, in a notional sense, continued. Before, however, we address ourselves to this question we must deal with Articles 181 and 182, Limitation Act. Article 181 is the residuary article, which applies to a case 'where no period of limitation is provided elsewhere.' It provides a limitation of three years and the starting point is 'When the right to apply accrues.' Article 182 provides. 'For the execution of a decree or order of any civil Court...' and prescribes a period of three years and six years, in certain cases. The fifth clause of this article says:

(Where the application next hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step-in-aid of execution of the decree or order.

6. The learned Counsel for the appellant, Mr. Chandra Bhag Agarwal, contends that the first application for execution, which was presented on 13th April 1931, was made within time and it had the effect of arresting limitation not only qua the persons against whom it was made, but also against the outstanding judgment-debtor, Ch. Richpal Singh, and its effect continued right up to 16th November 1942. This argument loses sight of certain definite provisions of the Encumbered Estates Act.

7. The effect of an order passed by the Collector under Section 6, Encumbered Estates Act, was that:

all proceedings pending at the date of that order in any civil or revenue Court in these provinces in respect, of private debt to which the land is subject, or with which his immoveable property is encumbered...shall become null and void and no fresh process in execution shall...be issued.

8. Certain other consequences followed with which it is not necessary to deal. As a result of it, no execution could proceed even against. Ch. Richpal Singh. Then came the stage of determining the liability under Section 9, Sub-section (5) Clause (b). The importance of this provision which insists upon the determination of the liability of even a non-applicant-debtor was emphasised by this Court in Ramdeo v. Sri Sadavatan Pande : AIR1940All148 , Punjab National Bank Ltd. v. Vishwanath Khanna : AIR1941All363 and Manmohan Das v. Mt. Radha Rani : AIR1944All288 .

9. In other words, the effect of the application under Section 4 was to create an impediment in the way of execution and grant an immunity from further proceedings in respect of the debt not only to the judgment-debtors who had sought the aid of the Act, but also to Ch. Richpal Singh. That impediment continued up to 5th January 1940, when not only was it removed, but a fresh decree came into existence.

10. In Zamin Ali v. Purshottam Chandra ('38) 1938 A.L.J. 575 which was a case under the Agriculturists' Relief Act, the principle of a fresh decree was emphasised. The same principle was applied, even in a case under the Encumbered Estates Act, in Sahimal Manohar Das v. Mt. Iltifat Unnisa Begam : AIR1941All293 and Ganga Sahai v. Tej Pal Singh : AIR1944All232 of which one of us was a member. At page 474 there is the following observation:

Under the provisions of the Encumbered Estates Act, the mortgage on Ch. Tikam Singh's share of the property was discharged and in place of the mortgage debt there was substituted a simple debt which was to be discharged by the Collector.

11. On the disappearance of the impediment came into being the right of the appellant to apply for the execution not of the original decree but of such decree as had been passed by the Special Judge. He had a right to apply, according to the Pull Bench decision of this Court in Chhattar Singh v. Kamal Singh ('27) 1927-25 A.L.J. 201 within three years of the date of the accrual of that right. Indeed the second part of Explanation, I, Article 182, Limitation Act, itself contemplates a case where the liability of the judgment-debtors has been defined inter se.

12. The learned Counsel for the appellant, however, argues that the first proviso to Section 9(5)(c) provides for the exclusion of time and this is only possible if the original decree continues. The original decree subsists but it ceases to be an effective decree. In the words of the learned Judges who decided the case in Gyan Singh v. Ata Husain 8 A.I.R. 1921 All. 56, the decree, after the amendment, became 'a combination of several decrees against separate sets of defendants for separate amounts.'

13. Apart from this even if there was a suspension of limitation it was effective only up to 5th January 1940. After that date the law of limitation took its usual course.

14. We have come to the conclusion that the decision of the Court below is correct and we dismiss this appeal with costs.


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