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Mitthan Lal Vs. Smt. Parwati and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberExe. Second Appeal No. 398 of 1975
Judge
Reported inAIR1977All236
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48 and 48(1)
AppellantMitthan Lal
RespondentSmt. Parwati and ors.
Appellant AdvocateBanarasi Das, Adv.
Respondent AdvocateA.D. Prabhakar and ;Baldev Raj, Advs.
Excerpt:
limitation- execution - section 48 of code of civil procedure,1908 - struck off - execution application - held, the application will be treated as a application for revival of the execution struck off by the court - no limitation bar for filing the application-appeal dismissed. - - biahambhar nath air1940all270 that the law laid down in air1932all273 was no longer a good law in view of the privy council decision. learned counsel for the appellant has argued that even the first instalment was not paid under that compromise and as such the entire decretal amount became due on the first default and that very day the entire decree for delivery of possession as well could be executed. pentapati bangararaju [1964]6scr251 in which it was held that the expression used by the execution courts..........was not filed within three years from the date of the order dated 28-5-1957 passed on the previous execution application. he placed reliance on the case of yeshwant deo-rao v. walchand ramchand : [1950]1scr852 in which it was held that section 48, c.p.c. was subjected to the article 182 of the limitation act and it was necessary that the limitation should be kept alive. he also placed reliance on the case of gobardhan das v. dau dayal : air1932all273 in which it was held that compromise during execution proceedings cannot be given effect to under section 47, c.p.c. and that fresh application for execution has to be filed in every case within three years under article 182, clause (5) limitation act from the date of the order passed on the previous execution application. the privy council.....
Judgment:

H.N. Kapoor, J.

1. This is judgment-debtors appeal against the order andjudgment dated 20-11-1974 of 1st Addl. Civil Judge, Dehradun, in Miscellaneous Appeal No. 39 of 1971, confirming the order of the execution court (Munsif Dehradun) in execution case No. 283 of 1966, rejecting the objections of the judgment-debtor and holding that the application for execution which was moved on 25-11-1966 was within time.

2. The facts giving rise to this appeal, briefly stated, are as follows:--

In suit No. 86 of 1953, Parwati v. Mitthan Lal, a decree was passed on 31-3-1354 for the ejectment of the defendant-appellant and for recovery of arrears of rent and mesne profits. An application for execution was moved but the execution was stayed by bringing another suit (Suit No. 115 of 1955). The stay continued till 10-6-1956 from 10-3-1955. There was then A compromise during the execution proceedings in the present suit on 28-5-1957, according to which two years' time was granted to the judgment-debtor to vacate the premises. The judgment-debtor also paid Rs. 50 towards decretal amount and damages. It was further settled that he would pay further damages in monthly instalments of Rs. 16 per month. The first instalment was to be due in July, 1967. It was also stipulated that in default of payment of any instalment a total default shall be treated and it would be open to the decree-holder to get the decree for possession executed and to realise the entire decretal amount. The execution court passed an order dated 28-5-1957 on the basis of the compromise arrived at during execution. It was to the effect that the execution was struck off in part satisfaction in terms of the compromise. It appears that the judgment-debtor did not pay the instalments under the compromise nor vacated the premises after the expiry of two years from 28-5-1957. The decree-holder then applied for execution of the decree in tabular form on 29-11-1966, vide application dated 24-11-1966. The compromise was referred to and it was stated that the execution was sought because the premises were not vacated in terms of the compromise. The judgment-debtor raised the objection that the application was barred by time. It was said to be barred by time under Section 48, C.P.C. as it was filed after 12 years of the date of decree, i.e. 22-4-1954, It was further said to be beyond time under Article 182 Clause (5) of the Limitation Act as it was filed more than three yearsafter the order was passed on the first application on 28-5-1957, The executing court took the view that the application was filed within time from 28-5-1959 which was the stipulated date under the compromise on which the premises were to be delivered to the decree-holder. It took the view that it could have been filed within six years from 28-5-1959 under the old Limitation Act. But with effect from 1-1-1964, the period of limitation was extended to 12 years under Article 136. The lower appellate court confirmed this order of the executing court. It also took the view that the limitation was 12 years from the date when the order became enforceable under Section 48, C.P.C, (old) and Article 13-6 of the Limitation Act (New). In its opinion, the order became enforceable on 28-5-1959.

3. Feeling aggrieved the judgment-debtor has filed this appeal.

4. The only point that arises for decision in this case is whether the application for execution filed on 29-11-1966 was barred by limitation, it could not be seriously argued that it was barred by limitation under Section 48 C.P-C, because execution had been stayed from 10-3-1955 to 10-6-1956. i.e. for a period of 15 months. If the period for which the execution was stayed is excluded, the application filed on 29-11-1966 will be within time from the date of decree, i.e. 22-4-1954. It has been held that Section 15 of the Limitation Act extends to the I case under Section 48 C.P.C., vide Koer Duragpal Singh v. Th. Pancham Singh : AIR1939All403 .

5. Learned counsel for the appellant has mainly argued that the execution was barred under Article 182 Clause (5) of the Limitation Act as it was not filed within three years from the date of the order dated 28-5-1957 passed on the previous execution application. He placed reliance on the case of Yeshwant Deo-rao v. Walchand Ramchand : [1950]1SCR852 in which it was held that Section 48, C.P.C. was subjected to the Article 182 of the Limitation Act and it was necessary that the limitation should be kept alive. He also placed reliance on the case of Gobardhan Das v. Dau Dayal : AIR1932All273 in which it was held that compromise during execution proceedings cannot be given effect to under Section 47, C.P.C. and that fresh application for execution has to be filed in every case within three years under Article 182, Clause (5) Limitation Act from the date of the order passed on the previous execution application. The Privy Council had dissented from the view that effect could not be given to compromise in execution proceedings in the case of Oudh Commercial Bank Ltd. v. Bind Basni Kuer . It was then field by another Full Bench of this Court in the case of Mahendra Rao v. Biahambhar Nath : AIR1940All270 that the law laid down in : AIR1932All273 was no longer a good law in view of the Privy Council decision. The same view was expressed by a learned single Judge in the case of Bhiki Mal Murari Lal v. Kundan Lal : AIR1940All107 Learned counsel for the appellant unfortunately egain relied on an overruled Full Bench decision in the case of Mahmood Hasan Khan v. Motilal Banker : AIR1961All1 in which the majority took the view that the provisions of Order XXIII, Rule 4, C.P.C. 1908 were not placed before the Privy Council. By the majority judgment it was held that a compromise arrived at during execution proceedings could not be enforced in case it had the effect of enhancing the rate of interest. It was, however, held that adjustment of the decree could be recorded in terms of compromise provided it adhered to the original decree end there was no new stipulation. This decision was specifically overruled by the Hon'ble Supreme Court in the case of Motilal Banker v. Maharaj Kumar Mehmood Hasan Khan : [1968]3SCR158 which confirmed the view taken by the Privy Council in the case reported in (supra). The result was that a compromise recorded during the execution proceedings could be given full effect to during execution even though it had the effect of slightly varying the terms of the original decree inasmuch as raising the rate of interest, It can, therefore, be said that the order passed by the executing court on the basis of & compromise can be deemed to be subsequent order under Section 48. sub-section (1) (b), C.P.C. It was so held by the Keraia High Court in the case of Edapally Valia Raja v. Chacko : AIR1959Ker83 and by Punjab High Court in the case of Gopal Chand v. Gobind Sarup .

6. The period of limitation, therefore, will start in this case under Section 48, sub-section (1) (b), C.P.C. from 28-5-1959, by which date the premises were to be vacated under the compromise on the basis of which order was passed by the executing court on 28-5-1957 that the execution was struck off in part. Learned counsel for the appellant has argued that even the first instalment was not paid under that compromise and as such the entire decretal amount became due on the first default and that very day the entire decree for delivery of possession as well could be executed. In fact it was open to the decree-holder to execute his decree after first default or successive defaults or after the expiry of two years which was stipulated under the compromise for the delivery of possession of the premises. It was so held by Lahore High Court in the case of Shanker Das v. Desa Mal Mula Mal (AIR 1936 Lah 159). I respectfully agree with the view taken therein.

7. Learned counsel for the appellant has, however, argued that it may be said that under Section 48(1)(b) limitation of 12 yeans ran from the first default or from 28-5-1959, but Section 43 itself was subject to Article 182 of the Limitation Act and the decree had to be kept alive by taking steps under Article 182, Clause (5) of the Limitation Act as was held by the Hon'ble Supreme Court in the case of Yashwant Deorao v. Walchand Ram Chand : [1950]1SCR852 (supra). It will mean that even if tha stipulation in the compromise for vacating the premises was after three years and there was no default in payment of the instalments of the decretal amount, it was necessary for the decree-holder to apply for execution within three years. Such an application would have been absolutely infructuous in view of the terms of such a compromise under which the premise was to be vacated after three years.

8. In my opinion, this matter can be considered from another aspect. The effect of the order dated 28-6-1957 passed by the executing court was only to postpone execution of the decree for two years and the application which was given after two years for execution only wets for revival of the original application for execution. It was held by the Privy Council in the case reported in Oudh Commercial Bank Ltd, v. Bind Basni Kuer (supra) that even a subsequent applica-tion for execution if given in a regular tabular form, under such circumstances it will only be deemed as an application for revival. In that case also the earlier execution application was disposed of on the basis of a compromise arrived at in the execution. Similar view was taken by the Full Bench of our High Court in the case of Mahendra Rao v. Bishambhar Nath : AIR1940All270 (supra). In that case the earlier execution was ordered to be struck off as the parties had compromised. It was held that in spite of words 'struck off' the execution application was kept alive and its effect was only to postpone the sale in execution. The second application given in tabular form for execution only was in fact an application for revival. The following passage may be reproduced with advantage:

'..... It would appear that when thecompromise of 19th October 1926 was effected the prayer was simply for the postponement of the auction sale and that to our mind has an important bearing on the question under discussion. The mere fact that the Court ordered the case to be struck off does not show that the application came to an end nor does the fact that the present application is on the usual tabular form suggest that it is a fresh application. In circumstances very similar to these their Lordships in , came to the conclusion that the application which they were considering waa not a fresh application. The question whether an application is a fresh application or is merely one to revive that previous execution proceedings had always to be decided upon the circumstances of each case and in each case the substance of the matter must prevail over the form of the application.'

9. In my opinion, the facts of the present case are similar to the facts of that case and it can be said that the second application was for revival of the previous execution proceedings. It was held by the Full Bench that no period of limitation was prescribed for such an application for revival, as it was in continuation of the original application for execution. In this connection a reference may also be made to the case of Pentapati China Venkanna v. Pentapati Bangararaju : [1964]6SCR251 in which it was held that the expression used by the execution courts like, 'closed for statistical purposes', 'struck off', 'recovered' etc., on disposing of execution application didnot necessarily mean that that execution application has been finally disposed of. It had to be judged from the circumstances of each case whether the subsequent application is for revival or is in fact a fresh application for execution.

10. After considering the matter in the light of these decisions, I am satisfied that the order dated 28-5-1957 passed on the earlier execution application to the effect struck off in part satisfaction in terms of Section 64(a), i.e., compromise, did not have the effect of finally disposing of that earlier execution application and in fact the execution was kept pending and the second application, which was filed on 29-11-1966, was in fact an application for revival of the earlier execution application for which no limitation is prescribed. The second application was, therefore, not barred by limitation.

11. In the result the appeal is dismissed with costs. The stay order dated 15-10-1976 is vacated.


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