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Faruq Ali Shah Vs. Ghanshiam Dass and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Appln. No. 208 of 1960
Judge
Reported inAIR1963All280
ActsLimitation Act, 1908 - Schedule - Article 182(5); Uttar Pradesh Courts of Wards Act, 1912 - Sections 55; Constitution of India - Articles 226 and 227
AppellantFaruq Ali Shah
RespondentGhanshiam Dass and ors.
Appellant AdvocateM. Asif Ansari, Adv.
Respondent AdvocateRadha Krishna, Adv.
DispositionApplication allowed
Excerpt:
.....act, 1912 - scope of word 'law' in 'in accordance with law to the proper court' - apply to all execution application and to take some steps in aid of the execution of decree or award - without impleading the collector in charge of properties - held, application not 'in accordance with law'. (ii) constitution - jurisdiction - articles 226 and 227 of constitution of india - alternate remedy exists - high court can exercise its jurisdiction under articles 226 and 227 of the constitution. - - 11. the words 'in accordance with law' in article 182 (5) of the limitation act are general and cannot be construed to mean only in accordance with the civil procedure code or the laws which were in existence on the date of the commencement of the limitation act, it is a well settled rule of..........the objection dated 25-10-1958 annexure 'a' to the affidavit, against the maintainability of the execution application was dismissed. a request is also made for the issue of an order prohibiting the judge, small cause. court, meerut, respondent no. 3, from proceeding with the execution application.2. the facts of the case are simple and are no longer in dispute. ghanshiam dass, respondent no. 1, obtained an ex parte decree on 28-9-1948 in s. c. c. suit no. 998 of 1948. the first execution application no. 884 of 1951 was moved on 27-9-1951, meanwhile on 14-6-1950, notification no. 2339-1/cw-302 (22)-46 under section 15 of u. p. court of wards act, 1912, was published whereby the court of wards took superintendence of the property of the applicant. the case of respondent no, 1 is that he.....
Judgment:
ORDER

D.S. Mathur, J.

1. This is an application under Article 227 of the Constitution by Faruq Ali Shah, judgment-debtor for quashing the order dated 7-3-1960 of the Additional District Judge, Meerut, Annexure 'C' to the affidavit, whereby the revision preferred against the order dated 23-5-1959 of the Judge, Small Cause Court, Meerut, Annexure 'B' to the affidavit, was allowed and the objection dated 25-10-1958 Annexure 'A' to the affidavit, against the maintainability of the execution application was dismissed. A request is also made for the issue of an order prohibiting the Judge, Small Cause. Court, Meerut, respondent No. 3, from proceeding with the execution application.

2. The facts of the case are simple and are no longer in dispute. Ghanshiam Dass, respondent No. 1, obtained an ex parte decree on 28-9-1948 in S. C. C. Suit No. 998 of 1948. The first execution application No. 884 of 1951 was moved on 27-9-1951, Meanwhile on 14-6-1950, notification No. 2339-1/CW-302 (22)-46 under Section 15 of U. P. Court of Wards Act, 1912, was published whereby the Court of Wards took superintendence of the property of the applicant. The case of respondent No, 1 is that he was not aware of the notification, but as the notification was published in the U. P. Gazette, he shall be deemed to he aware of the notification. The execution application was not in accordance with Section 55 of the U. P. Court of Wards Act as the execution of the decree was sought for against the applicant by his arrest and detention in civil prison. The execution application was dismissed for want of prosecution on 15-11-1951. The respondent moved the second execution application during the year 1954 wherein the applicant filed an objection dated 18-10-1954 (certified copy of the objection has been annexed to the counter-affidavit) pleading that in view of Section 18 of the U. P. Court of Wards Act the execution could not proceed. The bar of Section 55 was not then raised. From the material and facts brought to the notice of this Court after the conclusion of the argument it appears that the objection was dismissed in default, but before the expiry of the period of limitation for setting aside the order of dismissal or for preferring an appeal against the order of rejection of the objection, the second execution application was dismissed in default.

3. The fourth exertion application was moved on 1-9-1958 which was registered as Execution Case No. 826 of 1958. As no particulars have been furnished by respondent No. 1 in spite of the applicants' plea that he had no knowledge of the execution application it can be assumed for purposes of the present proceeding that the third execution application was also dismissed for want of prosecution without notice to the applicant.

4. The applicant again filed an objection to the maintainability of the fourth execution application wherein it was pleaded inter alia that the ex parte decree was not capable of execution in view of no claim being preferred under Section 18 of the U. P. Court of Wards Act, and that as the first execution application was not in accordance with Section 55 of the U. P. Court of Wards Act, respondent No. 1 could not claim extension of the period of limitation as a result of his having moved the first execution application on 27-9-1951. This objection is dated 25-10-1958, Annexure 'A' to the affidavit. The Judge Small Cause Court allowed the objection under order dated 23-5-1959, Annexure 'B' to the affidavit, holding that as the first execution application did not comply with the provisions of Section 55, the subsequent execution applications were barred by limitation. Respondent No. 1 preferred a revision before the District Judge which was registered as No. 48 of 1959 and the revision was allowed by the Additional District Judge under order dated 7-3-1960, Annexure 'C' to the affidavit. It was held that the first execution application was in accordance with the law and the subsequent execution applications were made within time.

5. The order of the Additional District Judge has been challenged in the present proceeding. It appears that after the decision of the revision the other objections raised by the applicant were disallowed and the execution was ordered to proceed. As the applicant has challenged the order of the Additional District Judge, we need not consider the propriety of the subsequent orders passed by the Judge, Small Cause Court, as these orders shall have no effect if the impugned order is quashed.

6. It was during the hearing of the application under Article 227 that it was realized by the applicant that the order of the Additional District Judge could be challenged by way of revision under Section 115 Civil Procedure Code. He, therefore, made a request that the present proceeding he deemed to be under Section 115 Civil Procedure Code also. This prayer was allowed though it may be noted that the rules concerning the presentation of revision were not followed and there may be technical difficulties in treating the present proceeding to be under Section 115 Civil Procedure Code also.

7. The learned Advocate for respondent No. 1 has naturally pleaded that the present proceeding cannot be deemed to be a revision under Section 115 Civil Procedure Code as rules governing revision have not been complied with. It was also contended that when a revision lay against the order of the Additional District Judge, this Court should not exercise its extraordinary jurisdiction under Article 227. My attention was also drawn to Ram Roop v. Bishwa Nath : AIR1958All456 . The scope and applicability of Article 227 was considered in the above case. It was laid down therein that the power under Article 227 should not ordinarily be exercised if any other remedy was available to the aggrieved party even though the pursuing of the remedy may involve some inconvenience or delay. I need not express any opinion whether a revision under Section 115 Civil Procedure Code is a remedy contemplated by this rule, considering that the power under Article 227 can, as laid down in this case also, be exercised in circumstances in which a writ could be issued under Article 226. It is a settled law that a writ under Article 226 can be issued in suitable cases where there exists an error apparent on the face of the record. Consequently, if on the basis of the admitted facts of the case or facts which cannot be said to be in dispute, the execution application was barred by limitation and the executing Court had no jurisdiction to proceed with the execution, this Court can exercise its jurisdiction under Article 227 even though an alternative remedy by way of revision was available to the applicant-judgment-debtor.

8. The second contention raised by the learned Advocate was that after the objection made by the applicant in the second execution application was dismissed, it was no longer open for him to raise the same point or points which he could have raised in that objection all over again. As already mentioned above, that objection was dismissed in default, but before the expiry of the period of limitation for setting aside the order of dismissal or for preferring an appeal, the second execution application was itself dismissed in de-fault. When no execution proceeding was pending, the applicant-judgment-debtor could not have taken any steps for setting aside the order of dismissal, nor could he have challenged the order of rejection by way of appeal. After the order of dismissal was set aside either by the executing Court itself, or in appeal the judgment-debtor could have raised any legal objection to the maintainability of the execution application. In these circumstances, it cannot be said that the earlier objection made on 18-10-1954 was decided on merits, and the principle of res judicata shall not be applicable. In other words, it was open for the applicant to raise an objection in the present execution proceeding that the execution was barred by limitation, or it was not maintainable.

9. From the facts as given in the beginning of this order it is clear that the first execution application was made virtually at the end of three years' period of limitation. The ex parte decree was passed on 28-9-1948 while the first execution application was moved on 27-9-1951. The second execution application was moved during the year 1954 and if the period of limitation did not stand extended by the first execution application, the decree was not capable of execution and any execution application moved on the expiry of three years from the date of decree shall be barred by limitation. The point for consideration therefore, is if the first execution application extends the period of limitation or not.

10. Article 182 of the First Schedule of the Limitation Act lays down the period of limitation for the execution of a decree or order of any Civil Court not provided for by Article 183 or by Section 48 Civil Procedure Code. It may here be mentioned that Article 183 and Section 48 Civil Procedure Code are inapplicable to the present case. No certified copy of the decree or order had been registered and the period of limitation shall, therefore, be three years. The tune from which the period of limitation begins to run is the date of the decree or order, but where an application has been made the time is counted from 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. This is Clause 5 of Article 182. The words 'in accordance with law to the proper Court' apply not only to an application for execution but also to an application to take some step in aid of the execution of the decree or order. (See the Full Bench case of Ram Bharose v. Raman Lal AIR 1932 Oudh 148.) The first execution application had been made to the proper Court. It has to be considered whether it was made in accordance with law.

11. The words 'in accordance with law' in Article 182 (5) of the Limitation Act are general and cannot be construed to mean only in accordance with the Civil Procedure Code or the laws which were in existence on the date of the commencement of the Limitation Act, It is a well settled rule of interpretation of statutes not to add words to the enactment where the language used is clear and unambiguous and capable of only one interpretation. The scope of the word 'law' has not in any way been restricted and it shall include all the laws in force cm the date an application for execution is made. Consequently, advantage of Article 182 (5) can be taken only if the earlier application made was in accordance with all the laws then in force.

12. An application is not in accordance with the law unless it contains a prayer which that Court can grant, to put it differently, which the Court is competent to do. But if the prayer is one which that Court cannot grant or which the Court is not competent to do, it will not be an application in accordance with the law, for the simple reason that such an application is not entertainable under the law and for all practical purposes the application made was not an application of which the Courts of law could take cognizance. (See Mt. Mojibunisa Bibi v. Kadir Bux : AIR1951All380 and Firm Johar Mal Paran Ram v. Biadeswari Prasad Singh, AIR 1937 Pat 522.)

13. The teamed Advocate for the respondent has, however, relied upon the following observation in Durga Prasad v. Dalpat Ram : AIR1952All645 in support of his contention that the word 'law' must be given a restricted meaning and has reference to Civil Procedure Code only.

'In order that an application may be in accordance with law it must be in accordance with the provisions of Civil Procedure Code.'

In this case Raghubar Dayal and Agarwala, JJ., were not considering the scope of the term 'in accordance with law'. They were merely considering whether an application before the executing Court was in accordance with the provisions of Civil Procedure Code or not. It may here be mentioned that the main judgment was pronounced by Agarwala, J., who had the occasion to consider a similar question in : AIR1951All380 (supra). The main judgment in this case also was pronounced by Agarwala, J., who clearly held that the application for execution having contained a prayer which the Court had no jurisdiction to grant was not in accordance with the law.

14. To sum up, the decree-holder must apply for execution of the decree within three years of the date of the final 'order passed on an application made earlier for execution or to take some step in aid of the execution of the decree provided that such an application was in accordance with the laws then in force, that is, that application contained a prayer which the executing Court was competent to grant. In case the executing Court was not competent to entertain the first execution application or to grant the prayer contained therein, that application would not help the decree-holder in applying for execution beyond three years of the date of the decree. In the instant case the first execution application was made on 27-9-1951 and the second during the year 1954. If the first execution application was not in accordance with the law, the decree-holder shall not be in a position to derive any benefit out of this application and, in the eye of law, the first proper execution application made shall he one made during the year 1954 more than five years after the passing of the decree. This application was clearly made beyond the prescribed period of three years and would be beyond time. For this reason the subsequent execution applications including the fourth execution application made on 1-9-1958 shall also be time-barred unless, of course, the first execution application made on 27-9-1951 was in accordance with the law.

15. The Court of Wards had published a notification under Section 15 of the U. P. Court of Wards Act on 14-6-1950. The notification was published in the U. P. Gazette and, consequently, everyone shall be deemed to be aware of the notification. In other words, even though the property of the applicant had come under the superintendence of the Court of Wards in June, 1950, the Court of Wards was not made a party to the first execution application made on 27-9-1951. The applicant-judgment-debtor alone was arrayed as a party to this application, and the prayer made therein was one which the executing Court could not grant.

15a. Section 55 of the U. P. Court of Wards Act runs as below :-

'No ward shall sue or be sued, nor shall any proceedings be taken in the Civil Court otherwise than by and in the name of the Collector in charge of his property or such other person as the Court of Wards may appoint in this behalf'.

This provision has been made applicable to all the suits instituted by the ward or against 'the ward irrespective of whether the property is or is not within the superintendence of the Court of Wards. (See Balwant Singh v. Collector of Saharanpur : AIR1930All602 ). Similarly, the Court of Wards is held to be a necessary party even in an action in tort against the ward. (See Court of Wards Muzaffarnagar v. Ajodhia Prasad : AIR1938All305 .) It is thus the settled view of this Court that the provisions of Section 55 apply to all suits or proceedings by or against the ward and such suits or proceedings have to be taken by and in the name of the Collector in charge of the properties of the ward or such other person as the Court of Wards may appoint in that behalf. I am in respectful agreement with this view, in view of the fact that Section 55 has been worded generally and applies to all suits or proceedings to which the ward was or could be a party. It was, therefore, necessary for the respondent to seek execution of the decree by unpleading the Collector in charge even though the decree was against the applicant. This rule of procedure had to be adopted for so long as the ward was under the superintendence of the Court of Wards. It is the admitted case of the parties that during the months of September to November, 1951, the properties of the applicant were under the superintendence of the Court of Wards. The first execution application should, therefore, have been made in the name of the Collector in charge and not of the applicant-judgment-debtor. When the Collector was not made a party to the execution application, it was not an application in accordance with Section 55 of the Court of Wards Act and for this reason was not an application made in accordance with law.

16. The prayer contained in the first execution application does not also appear to be one which could be, granted by the executing Court. It is true that there is no clear provision under which a decree against the ward cannot be executed by his arrest or detention, but if Section 55 is given a proper meaning the decree cannot be put into execution by his arrest or detention. Even though the decree is against the ward, the execution proceeding can be taken only in the name of the Collector in charge of his property, and for all practical purposes the Collector and not the ward is a party to that proceeding. Execution cannot proceed against a person not a party to the proceeding and, consequently, for so long as the property of the judgment-debtor was under the superintendence of the Court of Wards, the decree could not be executed by the arrest or detention of the judgment-debtor and could be executed only by attachment and sale of the properties of the judgment-debtor by impleading in that proceeding the Collector in charge of his property. To put it differently, the prayer contained in the first execution application by arrest and detention of the applicant-judgment-debtor was not one which the executing Court could grant. On this ground also that execution application shall be deemed to be one not in accordance with the law.

17. A reference may now be made to two reported decisions of this Court on which reliance was placed by the learned Advocate for the respondent. In Musi Imran v. Collector of Bijnore : AIR1934All434 , it was observed that the provision contained in Section 55 of the Court of Wards Act was a mere matter of procedure and did not affect the law of limitation. After a decree has been passed, the decree-holder has the right to apply for execution but execution can be sought for only in accordance with the procedure laid down under one law or the other. When the execution of the decree is governed by a procedural law, the provisions of that law must be complied with otherwise even though the decree exists it cannot be put into execution. In the instant case the decree against the applicant could not, during the period his properties were under the superintendence of the Court of Wards, be executed unless the execution was sought for in the name of the Collector; and as the procedural law had not been followed, the application was not one made in accordance with the law. Section 55 does not in any way affect the law of limitation; it is when the decree-holder does not apply for execution in accordance with the law within three years of the date of the decree that the law of limitation comes into operation and the decree becomes incapable of execution.

18. The rule laid down in Amar Krishna Narain Singh v. Deputy Commissioner, Barabanki : AIR1958All710 cannot be made applicable to a case covered by Section 55. Section 56 of the Court of Wards Act merely lays down that where in any suit or proceeding two or more wards, being parties have conflicting interests, the Court of Wards shall appoint for each such ward a representative, and the said representative shall thereupon conduct or defend the case on behalf of the ward whom he represents, subject to the general control of the Court of Wards. There is no further provision what shall be the consequence of non-appointment of such representatives. When the legislature did not provide any penalty for the non-compliance of this rule, it shall be deemed to be non-mandatory. Further, Section 56 by itself makes it clear that both the representatives shall conduct or defend the case subject to the general control of the Court of Wards. In other words, the Court of Wards is the final authority which has to look after the interest of- both the wards. Section 55 has, on the other hand, been worded in a different manner laying down the penalty for the non-compliance of the rule contained therein. The words 'no ward shall sue or be sued', clearly indicate that the Civil Court shall not take cognizance of a suit instituted by or against the ward unless the suit is by the Collector in charge or is instituted in the name of the Collector in charge. Section 55 lays down by implication that if there is non-compliance of this provision, the suit shall not be maintainable and the Civil Courts shall not be competent to take jurisdiction thereof. The non-compliance of Section 55 is visited by the penalty that the suit shall not be maintainable and can be summarily rejected on this ground. The same can be said with regard to other proceedings taken in the Civil Court by or against the ward, To put it differently Section 55 not only contains a rule of procedure but also the penalty for non-compliance thereof. Such a provision has been held to be mandatory and for non-compliance thereof the proceeding can be struck off being not in accordance with the law.

19. Lack of knowledge of the notification of June, 1950, whereby the properties of the applicant were taken control of by the Court of Wards cannot help the respondent-decree-holder, firstly, because he shall be deemed to be aware of notifications published in the U. P. Gazette and, secondly, if he had been diligent in the prosecution of the first execution proceeding, he would have become aware of the notification and he could thereafter proceed with the execution by impleading that Collector in charge. To the most, it may be said that the time taken in the hearing of the first execution application be excluded while computing the period of limitation. This period is of less than two months and even if this period is excluded, the second execution application shall be barred by limitation. When the second execution application was barred by time, the subsequent execution applications including the present one shall also be time-barred.

20. The Judge Small Cause Court, therefore, did not have the jurisdiction to entertain the present (fourth) execution application and the Additional District Judge, acted illegally by holding that the execution application was maintainable.

21. The application under Article 227 is hereby allowed with costs and the order dated 7-3-1960of the Additional District Judge is quashed. Itis further ordered that the execution applicationmade on 1-9-1958 which has been registered asexecution case No. 826 of 1958 is not maintainablebeing barred by limitation and shall stand dismissed.


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