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Badri Prasad Rastogi Vs. Suraj NaraIn Dube - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberExe. First Appeal Nos. 70 and 144 of 1966
Judge
Reported inAIR1969All551
ActsCode of Civil Procedure (CPC) , 1908 - Sections 38 - Order 21, Rule 10; Bengal, Agra and Assam Civil Courts Act, 1887 - Sections 4; Limitation Act, 1908 - Sections 14 - Schedule - Article 182
AppellantBadri Prasad Rastogi
RespondentSuraj NaraIn Dube
Appellant AdvocateJ.S.C.
Respondent AdvocateAmbika Pd., ;Jagdish Pd. and ;Krishna Pd., Advs.
DispositionAppeal dismissed
Excerpt:
.....- section 38 and order 21 rule 10 of code of civil procedure, 1908 - decree passed by additional civil judge - decree presented in the court of civil judge for execution - held, court of additional civil judge is also court of civil judge and presentation not improper. (ii) limitation - presentation of application - section 14 and article 182 of limitation act, 1908 - decree passed by additional civil judge presented for execution in the court of civil judge - decree wrongly returned for presentation in court of additional civil judge - decree returned by additional civil judge for refiling as original application was not filed in his court - second application filed after expiry of period of limitation - held, application not time barred. - - some proceedings then took place..........of certain amount of money from the judgment-debtor appellant from the court of the additional civil judge, mirzapur. the decree-holder first filed an application for execution of the decree in 1956. in this application the court which passed the decree was described as the court of the civil judge and it was presented in that court. some proceedings then took place but the decree was not finally satisfied and this application remained pending. in 1959 the decree-holder made another application for execution and in this application also the court which passed the decree was described as the court of the civil judge and it was presented in the court of the civil judge. while considering the objections of the judgment-debtor against the two applications the learned civil judge, for.....
Judgment:

K.B. Asthana, J.

1. These two connected appeals arising from an execution of a decree can be disposed of by a common judgment, as a common question arises and the parties are the same in both the appeals. It appears that the decree-holder respondent obtained a decree for recovery of certain amount of money from the judgment-debtor appellant from the court of the Additional Civil Judge, Mirzapur. The decree-holder first filed an application for execution of the decree in 1956. In this application the court which passed the decree was described as the court of the Civil Judge and it was presented in that court. Some proceedings then took place but the decree was not finally satisfied and this application remained pending. In 1959 the decree-holder made another application for execution and in this application also the court which passed the decree was described as the Court of the Civil Judge and it was presented in the Court of the Civil Judge. While considering the objections of the judgment-debtor against the two applications the learned Civil Judge, for reasons not necessary to notice intimated the District Judge of Allahabad, who had the administrative control, that the execution be transferred from his file.

The District Judge of Allahabad transferred the execution cases to the court of the Additional Civil Judge by an administrative order. Before the Additional Civil Judge one of the objections raised by the judgment-debtor to the execution in both the cases, was that the execution applications not having been presented before the court which passed the decree were incompetent. This objection prevailed, and the learned Additional Civil Judge returned the two applications for presentation to the proper Court. Apparently, the learned Additional Civil Judge thought that the presentation of the two applications for execution was in a wrong court and was not made in his court therefore he did not acquire any jurisdiction by merely passing of the administrative order of transfer by the District Judge.

2. The two applications for execution were ordered to be returned to the decree-holder for presentation to the proper court on 13-3-1964. The decree-holder then presented the two applications for execution on 28-3-1964 in the court of the Additional Civil Judge. It may be mentioned here that the description of the court which passed the decree in the two applications was not changed and it remained as the court of the Civil Judge. A fresh objection was then raised by the judgment-debtor to the effect that the two execution applications were barred by time on 28-3-1964, as they were filed in the proper court more than three years after the passing of the decree. On behalf of the decree-holder a plea based on section 14 of the Limitation Act was raised and it was pleaded that the two applications for execution were within time as the time spent during the pendency of the two applications filed under a bona fide mistake before the court of the Civil Judge be not taken into account and once it were excluded the presentation of the two applications for execution on 28-3-1964 would be within time. The decree-holder adduced evidence in support of the practice prevailing in Mirzapur which showed that the decrees passed by the Additional Civil Judge were put for execution in the parent court of the Civil Judge formally for execution.

The learned Additional Civil Judge accepted this plea of the decree-holder and giving him the benefit of the provisions of Section 14 of the Limitation Act, held that the two applications for execution were presented within time. It is the orders passed on the said two applications which are the subject matter of the two appeals before me.

3. Sri Sripat Narain Singh, learned counsel for the judgment-debtor-appellant, contended that there was no sufficient material before the Court establishing good faith on the part of the decree-holder and due care and caution in instituting the proceedings in the wrong court and the court below erred in giving the decree-holder the benefit of the provisions of Section 14 of the Limitation Act. The learned counsel submitted that neither the counsel who advised and presented the two applications was produced by the decree-holder nor any responsible person connected with the court was produced in support of the alleged practice of presenting the applications for execution in the court of the Civil Judge in regard to the decrees passed by the court of the Additional Civil Judge. The argument was that the counsel ought to have come and testified before the court that he acted under a bona fide belief and with due care and caution. It was pointed out that the carelessness and negligence of the counsel was manifest that even after a judicial order was passed returning the two applications for presentation to the proper court, he did not make the suitable correction in those applications and left the description of the court which passed the decree as the court of the Civil Judge when admittedly the decree was passed by the court of the Additional Civil Judge.

4. Before I consider the question whether the decree-holder was entitled to the benefit of Section 14 of the Limitation Act, I may point out one feature of the case. In one view it appears to me that the whole controversy which arose has hardly any legal foundation. Under the provisions of the Bengal, Agra and Assam Civil Courts Act, 1887 I do not find the Court of the Additional Civil Judge amongst the classes of Court recognised by Section 3 of that Act. Section 4 of that Act empowers the State Government to alter the number of Civil Judges. It is in exercise of the power under that section that as many numbers of courts of Civil Judges are created under the administrative control of the District Judge in a district as the situation requires. Every court thus created under the administrative control of the District Judge and there may be more than one court, would be a Court of Civil Judge. The description of the Court created that it is the court of the Additional Civil Judge is merely for administrative convenience to distinguish it from the original court of the Civil Judge, nonetheless the court so created would be the court of the Civil Judge. Sometimes the courts so created are described as the court of the First Civil Judge, the court of second Civil Judge and so on or the court of the Civil Judge No. 1, Court of Civil Judge No. 2 and so on.

I have no doubt, in my mind, that a decree passed by the court popularly described as the court of the Additional Civil Judge is a decree of the Civil Judge. So there is no mistake or error in the two execution applications in describing the court which passed the decree as the Court of Civil Judge. In giving such a description in the execution application the counsel who signed that application cannot be said to be not acting in good faith and with due care and caution. On the same reasoning it follows that the presentation of an application in the court of the Civil Judge for execution, though the decree was passed by the Court of Additional Civil Judge would not be a wrong presentation. I do not agree with the view taken by the Division Bench of Patna High Court in the case of Sam Narain Singh v. Raghubans Mani Prasad, AIR 1952 Pat 4. May be the decision in that case turned on the peculiar provisions of the law which constituted the subordinate courts in that State. The provisions which the learned Judges considered in that case were that of Section 3 of their Civil Courts Act and not the provisions of the Bengal, Agra and Assam Civil Courts Act 1887 which apply to the subordinate courts in our State.

5. It was then contended by the learned counsel that there being a judicial order returning the application for presentation to the proper court and which was not challenged by the decree-holder he was bound by it and it was not open to him to urge before this Court now that the original presentation in the Court of the Civil Judge, which admittedly was within time, of the two applications for execution was proper. I do not agree with this contention either. Once the original presentation which was admittedly within time of the two applications for execution was valid in law, no orders passed later on would affect the limitation. May be that the decree-holder was bound by the order and he obeyed that order by taking the two applications back from the court of the Additional Civil Judge and again presenting them formally before the same court subsequently. I do not subscribe to the view canvassed by the learned counsel for the judgment debtor that this presentation will amount to the filing of fresh application for execution. I think that the order of the Additional Civil Judge returning the two applications for presentation to the proper court was itself hyper technical and can be disregarded in the special circumstances of the instant case. The fact remains that it were the same two old applications which were formally again presented in pursuance of the said order. It is still the same subject matter in execution which was prosecuted in the two execution applications originally presented within time in the court of the Civil Judge. In this view of the matter no occasion arises for the decree-holder to take the benefit of the provisions of Section 14 of the Limitation Act as the two applications were filed within time.

6. However, I would prefer to make certain observations on the question whether the decree-holder was entitled to the benefit of the provisions of Section 14 of the Limitation Act assuming that the original presentation of the two applications for execution was in a wrong court. It has come in evidence that the decree-holder consulted a lawyer, engaged and instructed him to file the execution applications. There is no material on record to show that the lawyer so engaged was not competent enough to deal with such matters. A clerk of the court had been examined as also certain clerks of the lawyers practising in Mirzapur to prove that the practice in Mirzapur was that the applications for execution of the decrees passed by the court of the Additional Civil Judge were invariably filed in the parent court, that is, in the court of the Civil Judge. To me it appears that this practice which prevails in Mirzapur was not wrong or illegal. Once the correct description of the decree is that passed by the court of the Civil Judge as observed above, then the presentation of the application for execution of such a decree in the parent court of the Civil Judge would not be illegal. However, even if it be assumed that the court of the Additional Civil Judge is a different and distinct court from that of the Civil Judge even then as a matter of law it always remains doubtful whether an application for execution of a decree passed by the court of the Additional Civil Judge cannot properly be presented in the court of the Civil Judge.

It has come in evidence that there is no separate office attached to the court of the Additional Civil Judge in Mirzapur. That circumstance all the more justified the practice which prevailed in Mirzapur. The judgment-debtor has not produced any cogent and reliable evidence to controvert the evidence of the witnesses of the decree-holder on this prevalent practice. Rather the own conduct of the judgment-debtor shows that he himself never raised the objection as to the legality of the presentation till after a number of years the matter in execution was being considered by the Additional Civil Judge and in the course of the argument it struck his counsel to raise an argument on that score. A perusal of the order of the Additional Civil Judge gives a hint that it was the Court who really initiated that controversy. It goes to show that even the counsel for the judgment-debtor felt that under the prevailing practice, the presentation of the two applications for execution was proper and no invalidity attached to it.

7. For the reasons given above, I do not find any merits in these appeals and dismiss them with costs.


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