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Rahim Ali Khan and ors. Vs. Phul Chand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1896)ILR18All482
AppellantRahim Ali Khan and ors.
RespondentPhul Chand
Excerpt:
execution of decree - limitation--civil procedure code, sections 230, 235--subsequent application to execute the same decree'--meaning of the term 'granted.' - - mussammat tamiz-un-nissa failed. following the order by which the sale was confirmed came an order directing that the execution proceedings be struck of as partially satisfied with leave to the decree-holder to take any further steps in execution hereafter. 416. in that case an application for execution was filed on the 13bh of june 1879. it does not appear from the head-note that any order granting attachment issued before an order passed on the 19th of august whereby the application was struck off, the decree-holder having failed to take the necessary steps. the court of first instance set aside the sale in respect of one.....knox, j.1. the first appeal before us is an appeal arising out of execution proceedings consequent upon a decree for the payment of money, and the appellants are the judgment-debtors.2. their contention is that the decree in question was one passed on the 9th of april 1880, and that an application to execute it had been made and granted in the year 1887. the present application was instituted on the 19th february 1894, and, as twelve years have elapsed from the date of the decree which it is sought to enforce, this application is one which cannot be granted.3. before the question whether the present application for execution of the 19th of february 1894 is an application for execution within the meaning of section 230, code of civil procedure, 1882, and is one which can, or cannot, be.....
Judgment:

Knox, J.

1. The first appeal before us is an appeal arising out of execution proceedings consequent upon a decree for the payment of money, and the appellants are the judgment-debtors.

2. Their contention is that the decree in question was one passed on the 9th of April 1880, and that an application to execute it had been made and granted in the year 1887. The present application was instituted on the 19th February 1894, and, as twelve years have elapsed from the date of the decree which it is sought to enforce, this application is one which cannot be granted.

3. Before the question whether the present application for execution of the 19th of February 1894 is an application for execution within the meaning of Section 230, Code of Civil Procedure, 1882, and is one which can, or cannot, be granted, can be determined, it will be necessary to pass in review certain events which have occurred while the decree of the 9th of April 1880 has been under execution. It will also be necessary then to consider whether the application of the 19th of February 1894 is an application to execute the decree or a petition to the Court in seisin of and already executing the decree upon an application for execution to take some step in aid of the execution of the decree upon that application. The respondent contends that the application for execution was filed by him on the 28th of September 1885, and that every application subsequently put in by him has been an application to the proper Court to take some step in aid of the execution of his decree. The application of the 28th of September 1885 was an application for execution of the decree by attachment and sale of certain property. Attachment was duly made.

4. Upon attachment made two ladies, Musammat Ulfat-un-nissa and Mumammat Tamiz-un-nissa, raised certain objections. The objections raised by the ladies were not finally determined till December 1887. In the interim the judgment-creditor had applied, to the Court to except the property claimed by the ladies and to sell the remainder of the property previously attached and still under attachment. But before sale could be made the objections raised by the ladies had been determined, and the decree-holder asked on the 7th of December 1887 that the property claimed by the ladies might be put up for sale. This was done, and the whole property sold on the 20th of December The sale of this property was confirmed on the 20th of February The ladies in the meantime brought a suit to establish their right to the property claimed and obtained an order postponing the sale of that property until their suit was decided. That suit was determined on the 1st of September 1890. Musammat Ulfat-un-nissa succeeded in rescuing her share of the property; Mussammat Tamiz-un-nissa failed. On the 7th of October 1890 the judgment-creditor asked that now the remainder of property attached by him might be brought to sale after excluding from it that portion which had been adjudged to be the property of Muaammat Ulfat-un-nissa. Notification of sale issued fixing the 20th of February 1891, as the day on which the sale should be held. On the 16th of February 1891 the judgment-debtors succeeded in getting the sale postponed, and in gaining further postponements until the date fixed for sale was the 20th of June 1891. On the 19th of June 1891 the Subordinate Judge granted at the instance of one of the judgment-debtors a further postponement of sale over the property with the exception of one siham. The order, however, did not reach the officer holding the sale in time. The sale was held, but it was set aside, and orders were issued for a new sale to be held on the 20th of November 1891. Sale was held on that date and the property was sold for Rs. 705. The judgment-debtors again asked that this sale might be set aside. Their application was heard, and on the 13th of February 1892, the sale was set aside, so far as one siham of the property sold was concerned, and as regards the rest it was confirmed. Following the order by which the sale was confirmed came an order directing that the execution proceedings be struck of as partially satisfied with leave to the decree-holder to take any further steps in execution hereafter. From the order of confirmation there was an appeal to the Judge and the sale was set aside by him on the 13th of December 1893.

5. Accordingly, on the 7th of October 1893, the decree-holder applied that the eight sihams which had been attached so far back as the 29th of September 1885, and which the decree-holder had never yet succeeded in bringing to a complete and matured sale, should be sold. Some difficulty was experienced in serving the judgment-debtors with the necessary notice, and this application too was struck off the file with permission to take fresh steps in execution hereafter, the decree-holder having applied to withdraw it. Once more on the 19th of February 1894 the decree-holder presented to the Court a petition praying that the execution proceedings, which had on the 13th of February 1892 been struck off the file, might be restored to their original number and the prayer contained in the application of the 28th of September 1885 be fully granted. It is the order passed on this petition dated the 17th of March 1894 that forms the subject of this appeal. The judgment-debtors, who are now appellants, as pointed out above, contended in the Court below and again contend here that the decree can no longer be executed against them. Twelve years, they say, have expired from the date of the decree sought to be enforced. An application to execute the decree was granted on the 24tb of August 1887, and the present application, which was not presented until the 19th of February 1894, cannot be granted. They lay stress upon the fact that the application of the 7th of October 1893 was on the face of it an application for execution, and, as that application was by a definite order struck off, they contend that there must be a fresh application for execution. If the petition of the 19th of February 1894 be such an application it dearly cannot be granted.

6. The respondents, on the other hand, maintain that the application for execution which is now before the Court is none other than the application of the 28th of September 1885. The property which is the subject matter of these proceedings is entered in that application as property which the Court was asked to attach. The prayer for attachment in the application was granted, the attachment has subsisted ever since and has not matured into sale solely by reason of difficulties and objections which the appellant has placed in the way and which have had one by one to be removed.

7. In support of the contention of the appellants we were referred to the precedents, The Delhi and London Bank v. Reilly Weekly Notes, 1893, p. 124, and Ram Newaz v. Ram Charan I.L.R. 18 All. 49. There appears to be little if any distinction between the first of these two precedents and the case now under consideration. Both the cases cited proceed upon the assumption that the applications with which the Courts concerned had to deal were applications to execute a decree within the meaning of Section 230 of the Code of Civil Procedure. In The Delhi and London Bank v. Reilly it was laid down that the words in Section 230 of the Code cover both applications to execute and applications to take some step in aid of execution.

8. Now the words of Section 230 are words which tend or operate to restrict a right, and they should be construed strictly therefor. Statutes of limitation are the creation of positive law, and nothing in them should be extended to cases which are not strictly within the enactments.

9. I am not prepared to apply them to any application which is not an application such as is described in Section 235 of the Code of Civil Procedure. That section lays down in great detail the form which an application to execute a decree must, take, the matters which it must contain, and the mode in which the Court is asked to grant its assistance. Section 245 requires that such applications shall on receipt be examined, and if found in accordance with the law admitted on a register. The Court is after such admission to order execution of the decree according to the nature of the application. So long as that order or any further order according to the nature of the application is in progress, provided it be an order which has been evolved from the application so registered, I would hold that the application for execution is in progress. If from some obstacle imposed by the judgment-debtor or by the Court, that obstacle not being a final determination of the application, the progress of the order or subsequent orders to maturity is delayed and such obstacle is removed by an application of the decree-holder, I do not consider such latter application, unless it expressly take the form of a new application under Section 235 and be registered, as a subsequent application, any more than I would consider a petition by a plaintiff in the course of a suit asking the Court to reconsider an order to be a fresh plaint. Moreover, I would hold that the application under Section 235 is granted at the moment when the order is passed ordering execution according to the nature of the application. Except where that order expressly refused any portion of the relief applied for, I would hold that order to cover and govern all subsequent orders to complete execution according to the nature of the application as registered and over the property specified therein. The decree-holder may in his application extend the relief he asks for over a wide area of property, but the fact that he has done so does not make it necessary that he should proceed to deprive the judgment-debtor of more of that property than is at first sight sufficient to satisfy the decree. There is nothing irregular or contrary to the spirit of the law that property attached should be sold in parcels. If the sale of one parcel of attached land is found insufficient, an application that a second parcel of the attached land be sold is not an application to execute the decree, nor is the granting of the request, save and except there has been a previous order refusing such requests still subsisting, a granting of the application to execute which was put in under Section 235 of the Code of Civil Procedure. It is a mere continuation to completion of the first order.

10. This view appears to be in accord, so far as the interpretation of the word 'application' in Section 230 is concerned, with the view taken by the learned Judge who decided the case Bsiswa Sonan Chunder Gossyamy v. Binandar Chunder Dibingar Adhikar Gossyamy I.L.R. 10 Cal. 416. In that case an application for execution was filed on the 13bh of June 1879. It does not appear from the head-note that any order granting attachment issued before an order passed on the 19th of August whereby the application was struck off, the decree-holder having failed to take the necessary steps. On the 4th of March 1882 the decree-holder filed an application asking that the case which had been struck off and sent to the record room might be brought again on the file and property specified in the application might be attached and sold. If the property specified was property not specified in the application of the 13th of June 1879, this case would go even further than I am prepared to go. There is nothing to show whether it was or was not. The application was again struck off on the 2nd June 1882, apparently without attchment granted. The application was readmitted and attachment ordered on the 5th of March 1883. The District Judge held that all these proceedings were one continuous proceeding throughout, and the High Court found no ground upon which to question the Judge's finding upon this matter.

11. Under the Limitation Act of 1871 applications for execution of a decree had to be instituted within three years of the date of applying to a Court to enforce or keep in force a decree, and in construing the word 'applying' the Calcutta and Madras High Courts both held that the word referred to applications under Section 212 of Act VIII of 1859, or otherwise, whereby proceedings in execution are commenced and not applications of an incidental kind made during the pendency of such proceedings. Chunder Coomar Roy v. Bhogobutty Prosonno Roy I.L.R. 3 Cal. 235, Prabhacararow v. Potannah I.L.R. 2 Mad. 1.

12. The way in which I would construe the words 'application' and 'granted' would not do any violence to the language of the Act, and is moreover to my mind a fair and equitable construction. What the section aims at effecting is that a limit should be put to the period within which the holder of a money decree may put in force the decree he holds. If the decree-holder says in his application to the judgment-debtor--'I press for payment of my decree and will enforce it against such and such property of yours,'--and if he does this within twelve years of the date of the decree and in sufficient time to get an order from the Court to the effect that he may enforce it in the terms of the application it cannot be presumed that the Legislature intended him to suffer because, either from a desire not to harass unnecessarily, or owing to obstacles for which the decree-holder is not responsible, the property covered by the application is sold piecemeal, and the Court has to be reminded to complete the assistance it ordered. Such an interpretation would be an infringement of the decree-holder's right and would be construing the Act not in favour of but against the decree-holder.

13. For the above reasons I would hold that the application to execute is not time-barred and would dismiss this appeal with costs.

Blair, J.

14. I also am of opinion that this appeal should be dismissed. The argument upon the hearing quite convinced me that the case of The Delhi and London Bank v. Reilly Weekly Notes, 1893, p. 124, in which I took part was wrongly decided. I have been confirmed in that opinion by the judgments of my brethren which I have had the advantage of perusing. I would dismiss this appeal.

Banerji, J.

15. This appeal has arisen out of proceedings relating to the exceution of a decree for the payment of money, dated the 9tb April of 1880. The question we have to determine is whether the application of the decree-holder presented on the 19th of February 1894, is barred under the third paragraph of Section 280 of the Code of Civil Procedure, more than twelve years having elapsed from the date of the decree when the aforesaid application-was made.

16. In order that the twelve years' bar of that section may apply two conditions are essential, first, that an application to execute the decree was previously made under the section and was granted; and, second, that the present application to which the bar is sought to be applied is an application to execute the same decree. I agree with the ruling of Buekitt, J., in Tileshar Rai v. Parbati I.L.B. 15 All. 198, that the previous application, referred to in the section is not necessarily the last previous application, and that the section will apply if any previous application for execution has been made under the section and has been granted. I am also of opinion that an application for execution is granted within the meaning of the section when, after admitting the application under Section 245 and taking such preliminary measures as may be necessary, the Court orders the decree to he executed by the issue of its warrant for execution. I cannot accede to Mr. Sundar Lal's contention, if I understood him rightly, that an application cannot be held to have been granted unless the assistance of the Court sought in the application was actually and completely given.

17. In the present case an application was made on the 24th of August 1886 for the execution of the decree by the arrest of the judgment-debtor. A warrant of arrest was ordered to be issued, and was actually issued, but the judgment-debtor could not be apprehended. That application was made under Section 280 of Act No. XIV of 1882 and it was undoubtedly granted. If therefore the application now in question, namely, that of the 19th of February 1894, can be held to be an application to execute the decree within the meaning of Section 230, the prohibition of that section will undoubtedly apply to it.

18. We have therefore to consider whether the application of the 19th of February 1894 is an application for the execution of the decree dated the 9th of April 1880. In terms it is an application praying that the execution case No. 413 struck off on the 13th of February 1892 'be restored to its original number and sale notification be formally issued in respect of the properties previously attached.' In form it is not an application for execution containing the particulars required by Section 235. We have to see whether in substance it is an application for execution such as is contemplated by Section 230. In my judgment the application for execution referred to in that section is an initial application of the nature provided for in Section 235 upon which an order has to be made by the Court for granting or refusing execution. An application ancillary or incidental to an application already made for execution in the mode prescribed in Section 235 cannot, in my opinion, be regarded as an application to execute a decree within the meaning of Section 230. An application, for example, praying the Court which has issued a notice under Section 248 to issue its warrant for the attachment of the property specified in the original application for execution under Section 235, or an application asking the Court to issue a proclamation for the sale of property already attached, is not 'an application to execute' contemplated by Section 230, but is only an application to proceed with the application for execution already made and granted. Similarly an application to proceed with execution proceedings suspended or stayed by an injunction or other order or by reason of the institution of a suit has been held by this and other High Courts to be not an application for execution but an application to revive a previous application for execution. The words 'application to execute' in Section 230 have in my judgment, the same sense as the words 'applying for execution' in Clause (4) of the third column of Article 179, Schedule II, of the Indian Limitation Act, 1877., and contemplate, as I have said above, an initial substantive application for execution, and not an application to revive an application already made. In this view I am unable to agree with the ruling in the Delhi and London Bank, Ld. v. Raeilly Weekly Notes, 1898, p. 124. In my judgment, if the application of the 19th of February 1894 was not an application to execute the decree held by the decree-holder, it was not obnoxious to the twelve years' bar of Section 280.

19. That application was, as I have said, in terms an application to revive 'the execution case No. 413 of 1890 struck off on the 13th of February 1892. The execution case No. 413 was initiated by an application made on the 7th of October 1890 for the sale of a portion of the property for the attachment and sale of which the decree-holder had applied on the 28th of September 1885, but the sale of which had been stayed by reason of objections raised by two ladies in regard to that property under Section 278 and the institution of a suit under Section 283 upon the dismissal of the objections. The proceedings which took place upon the filing of the two applications referred to above have been detailed at length in the judgment of my brother Knox, and it is not necessary for me to recapitulate them. Suffice it to say that when a sale of the property mentioned in the application of the 7th of October 1890 finally took place on the 20th of November 1891, an application was made under Section 311 to set aside the sale. The Court of First Instance set aside the sale in respect of one siham out of nine sihams sold and affirmed it in respect of the remaining eight sihams, and on the 13th of February 1892 struck off the execution case, the decree having been partially satisfied.

20. The judgment-debtors appealed to the District Judge from the order confirming the sale, and on the 13th of December 1892 that order was reversed, arid the sale of the remainder of the property was set aside. In my opinion the effect of that order was to put back the execution proceedings to the point where they were before the sale of the 20th of November 1891, and the only application which it was necessary, if at all, for the decree-holder to make was an application to proceed with the execution proceedings which the Court of First instance had terminated by its order of the 13th of February 1892, but which were resuscitated by reason of the order of the District Judge dated the 13th of December 1892. Such an application was made on the 19th of February 1894, and I agree with my brother Knox in holding that it was not an application to execute the decree within the meaning of Section 230 and is not barred by the provisions of that section. The decree-holder, it is true, made an application for execution on the 7th of October 1893, but, as he withdrew that application with the leave of the Court, that application may well be excluded from consideration. For the above reasons I would affirm the order of the Court below and dismiss this appeal.

21. In this view it is not necessary to consider the question which was raised in Ram Newaz v. Ram Charm I.L.R. 18 All. 49. Were I called upon to decide that question I would hold with the ruling of turner, C.J., and Mottdsami Ayyab, J., in Virarama v. Annasami I.L.R. 6 Mad. 369, and the dictum of Field, J., in Pana-ul-huq v. Kishen Mun Dabee 9 C.L.R. 297, that the twelve years' prohibition of the third paragraph of Section 230 refers to the words 'application to execute the decree' and not to the word 'granted.' Any other construction would lead to results which could not possibly have been contemplated by the Legislature. If, for instance, an application for execution was made within the twelve years, but the Court through negligence omitted to make an order for execution before the expiry of that period, the decree-holder's right to execute the decree would be gone through no fault of his own. Take again the not unfrequent case of an application for execution made several years before the expiry of the twelve years but rejected by the Court of First Instance on the ground of limitation under Act No. XV of 1877. If the appeal from the order of the Court of First Instance be decided by the appellate Court after the expiry of twelve years from any of the dates mentioned in the third paragraph of Section 230 the appellate Court, which might be the Judicial Committee of the Privy Council, would not have the power to grant execution of the decree, although it might hold that the ruling of the Court of First Instance was erroneous and that the decree-holder was entitled to obtain execution of his decree on the date on which he made his application. I must concede that the section as it stands is not happily worded and needs improvement, but I am unable to hold that the intention of the Legislature was to create a prohibition of the nature referred to above, and that its true intention cannot at all be gathered from the section as it exists at present in the Act.

Aikman, J.

22. This is an appeal arising out of proceedings taken in execution of a decree for money which was passed on the 9th of April 1880. It is admitted that a previous application to execute has been made and granted. When this is the case, Section 230 of the Code of Civil Procedure provides that no subsequent application to execute the same decree shall be granted after the expiration of twelve years from any of the following dates, namely, '(a) the date of the decree sought to be enforced or of the decree (if any) on appeal affirming the same or (b) when the decree or any subsequent order directs payment of money, * * * the date of the default in makingthe payment.'

23. In the present case the date from which the twelve years is to be reckoned it the date of the decree sought to be enforced. In the lower Court the judgment-debtors pleaded that under the above provision of law, execution of the decree against them is barred. The lower Court overruled this objection. They appeal to this Court, relying on the same plea which was overruled by the Court below. I concur with my learned colleagues in thinking that the appeal must fail.

24. In my decision in the case of Ram Newaz v. Ram Charm I.L.R. 18 All. 49, I held that what was forbidden by Section 230 was not the making or receiving an application to execute after the expiry of the time fixed, but the granting of such an application after the expiry of that period. I do not think it can be denied that making an application is not the same thing as granting an application. As Straight, J., observed in Paraga Kuar v. Bhagwan Din I.L.R. 8 All. 301,--'It is one thing to ask for execution of a decree and another to have such application granted.' When I decided the case of Ram Newaz v. Ram Charan I was not aware that an opposite interpretation had been put upon the words of the section by the Madras High Court in the case Senra Disai Venra Jagath Virarama Dhikku Vijaya Sethurayar v. Annasami Ayyar I.L.R. 6 Mad. 359. I have now carefully considered that judgment, but with all deference to the learned Judge who delivered it, I am unable to agree with him in thinking that the words of the section can possibly admit of the interpretation which he has put upon it. The way in which he would read the would is as follows: 'When an application to execute a decree for the payment of money has been made and granted no subsequent application to execute made after the expiry of twelve years from the dates given shall be granted.' This in my opinion is legislation, not interpretation. I am quite ready to admit that the words of the Statute as they stand may in some cases result in a decree-holder being for no fault of his own deprived of his rights. For instance, an application to execute may have been presented in good time, but owing to negligence on the part of the Court or the Court officials may not have been granted within the prescribed period after the expiry of which, according to the plain meaning of the words of the section, it cannot be granted. This in all probability escaped the attention of the Legislature' when it framed the section as it did. But we must not on that account violate the leading canon of construction, which is to take words in their natural meaning, and according to the ordinary rules of grammatical construction. If this canon is obeyed it is impossible, in ray opinion, to put upon the words of the section the meaning which the learned Judges of the Madras High Court think it capable of bearing.

26. As Wilberforee in his work on Statute Law observes (p. 116)--'If the Courts were at liberty to travel out of the words of any particular Act of Parliament and to consider what would in any case be the consequence of giving those words their natural meaning they would become legislators and not interpreters.' In other words, to use the expression of Coleridge, J, this would be 'to make, not to interpret, law.'

27. But although I adhere to the view I took in Ram Newaz v. Ram Charan I.L.R. 18 All. 49, as to the meaning of Section 230, I am of opinion that the objection of the judgment-debtors, appellants in this case, based upon that section cannot prevail.

28. On the 7th of December 1887 the decree-holder applied to have the property which is the subject of dispute sold in execution of his decree, and the Court by its order dated the 23rd of December 1887 granted that application. A suit having been instituted to contest the right of the decree-holder to bring the property to sale, the Court by its order dated the 19th of January 1888, postponed the carrying out of its order of the 23rd of December 1887 until the suit should be decided; but it never cancelled the order granting the application. The suit referred to was partly successful. On the 7th of October 1890 the decree-holder applied for sale of all the property referred to in the order of the 23rd of December 1887, save that in regard to which the suit of the intervenors had been successful. The application was granted on the 17th of December 1890. After various delays the sale took place on the 20th of November 1891, but the sale was set aside by the District Judge owing to some irregularity. The decree-holder now moves the Court to carry out the sale regularly. Here then we have the case of an application to execute granted within the statutory period but not carried out owing to causes for which the decree-holder is in no way responsible. Under such circumstances I am of opinion that it is no violation of Section 230 for the Court now to proceed upon the application which was granted by an order passed within time, but which order for no fault of the decree-holder and owing to circumstances beyond his control has not yet been carried out. This cannot be said to be granting a fresh application to execute. I do not think it can seriously be contended that the meaning of Section 230 is that not only must the application to execute be granted within the twelve years, but that all execution proceedings following upon the grant must be terminated within that period.

29. In support of the view that the decree-holder's petition to proceed with the sale is no fresh application, I may refer to the decision in Kalyanbhai Dibchand v. Ghanasham Lal Jadunathji I.L.R. 5 Bom. 29, and Paras Ram v. Gardner I.L.R. 1 All. 356, Subject to the above explanation, I adhere to all that I said in Ram Newaz v. Ram Charan For the reasons set forth above, I am of opinion that this, appeal should be dismissed with; costs.

30. In conclusion, I would express a hope that the Legislature, may see its way to amend Section 230 of the Code of Civil Procedure so as to avoid cases of hardship to decree-holder such as those referred, to above.

Blennerhassett, J.

31. For the reasons stated by my learned eblleagues I concur in holding that the present is not a 'subsequent application to execute the same decree' within the meaning of Section 230 of the Code of Civil Procedure. An application to execute the decree had been made. Certain objections had been raised against the application for execution and proceedings under that application were stayed. After the disposal of those objections the decree-holder by the present application prayed the Court to continue proceedings under the previous application. The present application is not barred by Section 230 of the Code of Civil Procedure. I concur in the order proposed.

2. The order of the Court will be that this appeal is dismissed with costs.


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