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Behari Lal Vs. Ganga Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1945All117
AppellantBehari Lal
RespondentGanga Prasad
Excerpt:
- .....court against the decree of the trial court and during the pendency of that appeal, applied for stay of execution of the decree for costs passed by the trial court. the execution was ordered to be stayed conditional on security being furnished. krishan lal, the father of ganga prasad respondent in appeal no. 45 and hukam chand, respondent in the connected appeal no. 46, executed a security bond and filed the same in court. nand lal's appeal was ultimately dismissed by this court. behari lal then made several applications for execution for the realisation of the costs from the sureties and one of such applications was filed on 5th may 1937 which was disposed of by an order dated 25th august 1937. it is common ground that the application dated 5th may 1937, was within time and it is,.....
Judgment:

Iqbal Ahmad, C.J.

1. This and the connected E.F. A. No. 46 of 1943 are decree-holder's appeals and are directed against an order of the Court below dismissing an application for execution as time-barred. The facts are not in controversy and are as follows: One Nand Lal instituted a suit against certain defendants amongst whom was Behari Lal, the appellant in both the appeals before us. The suit was dismissed with costs by the trial Court. Nand Lal filed a first appeal in the High Court against the decree of the trial Court and during the pendency of that appeal, applied for stay of execution of the decree for costs passed by the trial Court. The execution was ordered to be stayed conditional on security being furnished. Krishan Lal, the father of Ganga Prasad respondent in appeal No. 45 and Hukam Chand, respondent in the connected appeal No. 46, executed a security bond and filed the same in Court. Nand Lal's appeal was ultimately dismissed by this Court. Behari Lal then made several applications for execution for the realisation of the costs from the sureties and one of such applications was filed on 5th May 1937 which was disposed of by an order dated 25th August 1937. It is common ground that the application dated 5th May 1937, was within time and it is, therefore, manifest that time for a fresh application for execution' began to run from 25th August 1937. The decretal amount was, however, not paid to Behari Lal with the result that Behari Lal had again to apply for execution against Ganga Prasad and Hukam Chand, the respondents to the present appeals. This application was filed on 2lst February 1941, i.e. more than three years after 25th August 1937. Behari Lal maintained that in computing the period of limitation for the presentation of the application for execution he was entitled to the exclusion of the period during which the Temporary Postponement of Execution of Decrees Act do of 1937) was in force, viz., from 1st January 1938 to 31st December 1940, and, as such the application for execution was within time. It is not disputed that both Ganga Prasad and Hukam Chand are agriculturists within the meaning of the said Act and so was Kishan Lal. Ganga Prasad and Hukam Chand, however, filed objections contending that, inasmuch as each of them and Kishan Lal though agriculturists paid Government revenue in excess of Rs. 250, the decree-holder was not entitled to the exclusion of time claimed by him. This contention of Ganga Prasad and Hukam Chand found favour with the Court below with the result that that Court dismissed Behari Lal's application for execution as time barred. Behari Lal, the decree-holder, has therefore come up in appeal to this Court.

2. The answer to the question that arises for consideration in the present appeals depends ' primarily on the construction to be put on Sub-section (1) of Section 5, Temporary Postponement of Execution of Decrees Act (10 of 1937). That sub-section runs as follows:

5. (1) In computing the period of limitation prescribed by the Indian Limitation Act, 1908, or any other law for the time being in force, for (a) the institution of a suit in a civil Court against an 'agriculturist for money or for foreclosure or sale in enforcement of a mortgage, and (b) the execution of such decree as is referred to in Section 3, and not covered by Section 6, the period during which this Act shall remain in force, shall be excluded.

3. It is common ground that the decree under execution in the present case is not covered by Section 6 of the Act and it is, therefore, obvious that the period during which the Act remained in force has to be excluded in the computation of the period of limitation provided the decree under execution is such a decree 'as is referred to in Section 3.' The sub-sections of Section 3 which are relevant for our present purpose are Sub-sections (1) and (2). The material portion of Sub-section (1) of Section 3 is as follows:

All proceedings in 'execution of any decree for money or for foreclosure or sale in enforcement of a mortgage passed by a civil Court on the basis of a liability incurred before the passing of this Act, in which the judgment-debtor or any one of the judgment-debtors is, at the date of the passing of this Act, an agriculturist shall be stayed during the period this Act shall remain in force, if such judgment-debtor does not pay more than Rs. 250 as land revenue or rent....

Sub-section (2) of that section provides that

Any other agriculturist, who is a judgment-debtor to any such decree as aforesaid may apply to the Court which passed the decree or the Court by which such decree is being executed, for stay of execution, and the Court shall stay the execution of such decree during the period this Act shall remain in force.

if the applicant judgment-debtor makes the deposit provided for by the sub-section. The decree 'referred to in Section 3' is obviously a decree for money or for foreclosure or sale passed against an agriculturist on the basis of a liability incurred before the passing of the Act and the decree under execution in the present case complies with all these conditions. Section 5, therefore, prima facie is applicable to the decree under execution. It is, however, contended on behalf of the judgment-debtor respondents that as each of them was paying more than Rs. 250 as land revenue and had not applied for stay of execution by making the deposit prescribed by Sub-section (2) of Section 3, the period during which the Act was in force could not be excluded. In our judgment there is no force in this contention. Section 5 is independent of and is not subject to the provisions of Section 3 and it is controlled by that section only to this extent that its application is restricted to the decrees referred to in Section 3. In other words, for construing Section 5 one has to turn to Section 3 only for the limited purpose of ascertaining the nature of the decree in order to see whether it is one to which Section 5 is applicable. In construing the plain words of Section 5 the Court will not be justified in embarking upon a consideration of the question whether certain anomalies will or will not arise if the words of Section 5 are given their natural and plain meaning. Once it is found that the decree is of the character contemplated by Section 3, it will attract the application of Section 5 irrespective of the fact whether an application for stay has or has not been filed by the judgment-debtor in pursuance of the provisions of Sub-section (2) of Section 3.

4. We may mention that the view which we are taking has consistently prevailed not only in this Court but also in the Chief Court at Lucknow, vide Bhagwat Partab Singh v. Babuain Janakraj ('43) 30 A.I.R. 1943 Oudh 385, Mustafa Khan v. Ram Bharosey : AIR1945All23 , Civil Revision No. Bijai Bahadur v. Simman Civil Revn. No. 87 of 1943, decided by Mathur J. on 10th January 1944 and E.S.A. No. Pokkar Singh v. Mulaim Singh Exn. S. A. No. 1471 of 1943, decided by Braund J. on 2nd January 1945.

5. As is manifest from the preamble to the Act under consideration, it was passed to provide for temporary postponement of the execution of certain decrees 'pending further legislation for granting relief from indebtedness to agriculturist.' It is, therefore, obvious that, 'pending further legislation' the Legislature intended, speaking generally, to discourage the institution of execution proceedings against agriculturist judgment-debtors with the object of affording immunity to them from proceedings in Court. That Section 3 was enacted with this object in view admits of no doubt. As we read Section 5 we consider that that section was enacted with the intention of furthering the object that the Legislature had in view. It would be noted that there is no provision in the Act, on the lines of Section 7, U.P. Encumbered Estates Act (25 of 1934), prohibiting the institution, or enjoining the stay, of suits during the period that the Act was to remain in force. Even then we find that with a view to encourage creditors to refraim from instituting suits for enforcement of pecuniary liability incurred by agriculturists the Legislature by Clause (a) of Sub-section (1) of Section 5 provided for the exclusion of the period during which the Act was to remain in force in the computation of the period of limitation for the institution of suits. Similarly we consider that the object of Clause (b) of Sub-section (1) of Section 5 was to persuade those decree-holders also whose judgment-debtors were agriculturists of the type mentioned in Sub-section (2) of Section 3 to refrain from applying for execution of their decrees. To put it in another way, the Legislature while making provision by Sub-section (2) of Section 3 for the stay of execution conditional on the specified deposits being made by agriculturist debtors of the type mentioned therein, proceeded further to provide that if the decree-holder refrained from executing his decree during the currency of the Act, he shall be entitled to the exclusion of that period. This provision was calculated to have the effect of providing immunity from execution proceedings to such agriculturists also as did not come within Sub-section (1) of Section 3. For the reasons given 'above we allow this appeal, set aside the decree of the Court below and remand the case to that Court with the direction to restore the case to its original number and to dispose of the same according to law. The decree-holder appellant is entitled to his costs of this appeal. The costs in the Court below will abide the result.


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