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Smt. Sarbati Devi Vs. Sri Ramprasad and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2370 of 1963
Judge
Reported inAIR1971All321
ActsLimitation Act, 1908 - Schedule - Article 11; Code of Civil Procedure (CPC) , 1908 - Order 21, Rules 58 and 63 - Order 38, Rules 6 and 11
AppellantSmt. Sarbati Devi
RespondentSri Ramprasad and anr.
Appellant AdvocateRadha Krishna and ;J.W. Mishra, Advs.
Respondent AdvocateC.N. Verma, ;S. Dhar and ;R.N. Bhatta, Advs.
DispositionAppeal dismissed
Excerpt:
limitation - execution - article 11 of limitation act, 1908 - suit under order 21 of rule 63 of code of civil procedure, 1908 - filed after six months from dismissal of objection - objection filed in attachment of execution of decree and not in respect of attachment before judgment - not maintainable. - - 3. after hearing learned counsel for the appellant at length we have unhesitatingly arrived at the conclusion that the view taken by the appellate court is perfectly correct and this appeal must fail. well after expiry of six months from the date on which the appellant's objection under order 21 rule 58 civil procedure code had been dismissed. 9. we would like to add that a learned single judge of the andhra pradesh high court in the case of v. 11. we are of opinion that the court..........makes it clear that it proceeded on the footing that in case of attachment in execution of a decree article 11 is applicable. this decision again has no bearing on the facts of the present case.8. the learned counsel for the appellant cited some other cases also but they are cases in which the order on the claim had been passed before the decree in the suit was passed or before execution had commenced.9. we would like to add that a learned single judge of the andhra pradesh high court in the case of v. alwar chetty v. m. p. naidu, air 1982 aadh pra 469 hasanalysed the position somewhat elaborately and recorded a number of propositions following that analysis. in agreement with the results incorporated in propositions nos. (iv) and (vi) we are of opinion that an attachment before.....
Judgment:

Gupta, J.

1. This is a plaintiff's second appeal arising out of a suit of the nature contemplated by Rule 63 of Order 21 of the Code of Civil Procedure.

2. The defence raised included a plea of limitation. The trial Court negatived this plea and, having recorded its findings in plaintiffs favour on the other questions in controversy, decreed the suit. On appeal by the defendant the decree of the trial Court was ultimately set aside on the view that the suit was barred by limitation. The plaintiff then filed this second appeal. It was heard by brother S. N. Singh and on the 28th March 1970, he passed an order referring it for decision by a Division Bench on the ground that the State of authorities bearing on the question of limitation was such that the case deserved hearing by a larger Bench.

3. After hearing learned counsel for the appellant at length we have unhesitatingly arrived at the conclusion that the view taken by the appellate court is perfectly correct and this appeal must fail.

4. The property which was the subject-matter of the suit giving rise to this appeal had been attached in a prior suit under the provisions contained in Rule 6 of Order 38, Civil Procedure 'Code i.e., it had been attached before judgment. The present appellant was not a party to that suit nor did she raise any objection to the aforesaid attachment. The suit was decreed in April 1954 and the decree-holder having transferred the decree, the transferee, who is the principal respondent in the appeal before us, applied for execution of the decree on 30-9-1955. In that application he set forward two prayers. The first was that his name be substituted in place of the original decree-holder, and the second was that the property under attachment be sold for satisfaction of the decree. The aforesaid application for execution was proceeded with and by an order passed on 19-5-1956 the name of the transferee was directed to be substituted in place of the original decree-holder. Thereafter on 29-5-1956 the present appellant filed an objection under the provisions contained in Rule 58 of Order 21, Civil Procedure Code setting forward the claim that the property in execution belonged to her (the appellant in this appeal) and not to the judgment-debtor against whom the decree had been passed. The aforesaid objection under Order 21 Rule 58, Civil Procedure Code was dismissed on 21-1-1957. Thereafter the suit giving rise to this appeal was filed in December 1957 i. e. well after expiry of six months from the date on which the appellant's objection under Order 21 Rule 58 Civil Procedure Code had been dismissed. There is no controversy that, under the amended Limitation Act as applicable to U. P., the period provided in the second column against Article 11 in the first schedule of the Limitation Act of 1908 was only six months. The defendant's plea of limitation was based on the aforesaid article and it is not in controversy that if this article applies the suit would be barred by limitation. Reliance on behalf of the plaintiffs was however placed on Article 120, the contention being that Article 11 was not applicable. Thus, the only question that substantially arises for consideration is whether Article 11 is not applicable to the present case. In support of his contention learned counsel for the appellant has referred to the language of Clause (i) of Article 11 contending that, by its very terms, this article is applicable only to cases where a claim was preferred or an objection had been made, to the attachment of property attached in execution of a decree. The learned counsel has urged that since in the present case attachment had taken place under the provisions contained in Order 38, Civil Procedure Code i.e., since it was an attachment not in execution of a decree but an attachment before judgment, the rule embodied in Article 11 cannot be applied to the present case. This contention appears to overlook the specific provisions embodied in Rule 11. of Order 38 of the Code which runs as follows:--

'Where property is under attachment by virtue of provisions of this order and a decree is subsequently passed in favour of the plaintiff it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property.'

In regard to property which has been attached before judgment it is not necessary to get the same attached again after judgment has been obtained by the plaintiff against the defendant and it is open to the plaintiff, in his capacity as decree-holder, to proceed against that property on the footing that the property is available for being proceeded against as property attached in execution of the decree.

5. It is settled law that, for the purposes of proceedings in execution of a decree, property attached before judgment in the suit in which that decree was passed is deemed to be property attached in execution of that decree. Learned counsel for the appellant referred to the decision of aDivision Bench of this Court in the case of Lachhman Das v. Mukund Das, 1962 All LJ 421 as supporting the contention raised by him, but on an examination of the aforesaid decision we find that far from supporting the proposition contended for by the learned counsel, it contains numerous observations which support the view that the rule embodied in Article 11 of the Limitation Act would be applicable to the present case. At the bottom of column 1 at page 422, the following observation is to be found:

'Article 11 necessarily contemplates that an order disposing of the objection must be an order passed after the passing of the decree; since the objection is to the attachment of the property in execution of the decree the order disposing of the objection must necessarily be passed after the passing of the decree. The article cannot apply to an order which was passed before the passing of the decree as in the present case, even if on account of certain subsequent events the property could be deemed to be under attachment in execution of it. There is no anomaly in a property being in attachment in execution or a decree in spite of an order dismissing an objection against the attachment being of a date prior to the passing of a decree.'

Further on, it has been observed at the top of the second column at page 424:--

'A property attached before judgment can never be said to be comprised within the words 'property attached in execution of a decree'. When a property is attached before judgment, but the attachment continues after the decree is passed and there is an order for sale in execution of it, then it may be said that the words comprise the property.'

6. Another case cited by the learned counsel for the appellant was Nagappa Gowda v. Gurupadappa, AIR 1954 Mys 39. This case arose out of a suit for declaration of title and six years' limitation had already elapsed since the order on the objection had been passed. This decision is of no assistance in regard to the controversy arising in the present case.

7. Another case referred to by the learned counsel is Eswarappa v. Krishna Reddy, AIR 1964 Andh Pra 99. A perusal of the decision makes it clear that it proceeded on the footing that in case of attachment in execution of a decree Article 11 is applicable. This decision again has no bearing on the facts of the present case.

8. The learned counsel for the appellant cited some other cases also but they are cases in which the order on the claim had been passed before the decree in the suit was passed or before execution had commenced.

9. We would like to add that a learned Single Judge of the Andhra Pradesh High Court in the case of V. Alwar Chetty v. M. P. Naidu, AIR 1982 Aadh Pra 469 hasanalysed the position somewhat elaborately and recorded a number of propositions following that analysis. In agreement with the results incorporated in propositions Nos. (iv) and (vi) we are of opinion that an attachment before judgment could become an attachment in execution after an execution petition is presented and entertained by the court and, further that, Article 11 would apply to cases where the claim is preferred in pending execution proceedings, with the result that by reason of the presentation of the execution petition by the decree-holder which has been entertained by the court the attachment before judgment would get converted into an attachment in execution and the property in respect of which the claim is preferred would be deemed to be property attached in execution of the decree within the meaning of Article 11.

10. While dealing with parallel provisions in the Limitation Act then in force, it was observed as far back as 1888 by Lord Hobhouse, recording the view of the Board in the case of Sardhari Lal v. Ambika Prasad, (1887) 15 Ind App 123 (PC) at p. 127, that the policy of the Act evidently is to secure the speedy settlement of questions of title raised at execution sales.

11. We are of opinion that the court below is perfectly right in its view that Article 11 of the Limitation Act applied to the facts of the present case and the suit was barred by limitation.

12. In the result, this appeal is dismissed with costs.


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