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Sham NaraIn Rai Vs. Nagesar Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Case NumberExecution First Appeal No. 332 of 1945
Judge
Reported inAIR1952All360
ActsDebt Law; Uttar Pradesh Agriculturists' Relief Act, 1934 - Sections 6; Uttar Pradesh Temporary Postponement of Execution of Decrees Act, 1937 - Sections 3, 3(1) and 5
AppellantSham NaraIn Rai
RespondentNagesar Ram
Appellant AdvocateGopalji Mehrotra, Adv.
Respondent AdvocateShambhu Prasad and ;Shripati Narain Singh, Advs.
DispositionAppeal dismissed
Excerpt:
.....the nature of decree in order to see whether decree is of character contemplated by section 3. - - the contention of the learned counsel is that before giving the benefit of section 5 to a decree-holder the court has to see if the conditions prescribed by section 3 of the act satisfied in the case of a particular decree which is sought to be..........only the first instalment of the decree which fell due on 5-9-1937, was barred by time on the date of the present application for execution i. e. 7-11-1944. the application for execution in regard to the other instalments would be within time as time would begin to run in respect of them only on 1-1-1941.9. the decision of the court below is thus quite correct. the result is that the appeal is dismissed with costs.
Judgment:

Wali Ullah, J.

1. This is an appeal by the judgment-debtor against an order passed by the Court below by which his objections were partly allowed and partly dismissed.

2. It appears that a simple money decree was passed against the appellant on 27-10-1930. An application for execution of this decree was made on 16-3-1933 and eventually it was struck off, after part satisfaction of the decree, on 30-8-1933. Later, the judgment-debtor appears to have made an application under Section 5, U. P. Agriculturists' Relief Act (Act 37 of 1934) with the result that the decree was converted into one payable by four instalments. The first instalment was payable on 5-9-1937, the second on 5-9-1938, the third on 5-9-1939, and the fourth on 5-9-1940. It was provided that on default of payment of any two instalments, the whole amount due under the decree was to become payable. It appears that no instalments were paid till 16-12.1941 when the second application for execution was made. This second application for execution was transferred to the Collector for execution and eventually on 11-7-1942, after the grant of a self-liquidating mortgage of some property in part satisfaction of the decree, it was struct off. Later it appears, the judgment-debtor claimed a reduction of interest in accordance with the provisions of Sections 8 and 9, U. P. Debt Redemption Act (Act XIII [13] of 1940). This was allowed. On 7-11-1944, the third application for execution was made. In execution proceedings besides other properties, some agricultural produce of the judgment-debtor was attached. Against the attachment of the agricultural produce, the judgment-debtor filed objections. In the main, the objections centred round the bar of limitation pleaded by the judgment-debtor. It was pleaded that Section 15, Debt Redemption Act, read with Section 6, Agriculturists' Relief Act, made the application for execution barred by time.

3. The Court below, after considering the relevant provisions of law, came to the conclusion, that the execution application in regard to only the first instalment of the decree, which fell due on 5-9 1937, was barred, while the remaining amount due under the decree, under the remaining three instalments, was recoverable. Against this order, partly dismissing the objections, the appellant has come up in appeal to this Court.

4. It has been contended by the learned counsel for the appellant that the application for execution in respect of all the instalments provided for in the decree was barred by time. Learned counsel has referred us to Section 6, particularly proviso (2), Agriculturists' Relief Act, and has contended that the limitation provided by the first para. of the section i.e., a period of four years calculated from the date of the filing of the first application for execution, would govern this case and that the second proviso, which refers to the grant of instalments for payment of a decree under Section 3 or Section 5 of the Act, would apply only in a case when a previous application for execution has been made.

5. We find no warrant for this contention of the learned counsel in the provisions of Section 6 of the Act. It is clear that the period of four years' limitation calculated from the date of the filing of the first application for execution is provided in the ease of an ordinary decree where there is no question of instalments. By reason of proviso (2) to this section, however, the legislature seems to have intended that the period of four years' limitation prescribed in the earlier part of the section should be counted in respect of each instalment from the date on which such instalment falls due. It is clear, therefore, that the application for execution would be within time if made within four years of the date of default of a particular instalment. There is, therefore, no force in this contention of the learned counsel.

6. The next question which arises for consideration is whether the decree-holder is entitled to the benefit of Section 5, Temporary Postponement of Execution of Decrees Act (U. P. Act X [10] of 1937). The decree-holder has been given the benefit of Section 5 of this Act. Learned counsel for the appellant, however, has contended that benefit of the provisions of Section 5 of the Act is available only in the ease of 'such decree as ia referred to in Section 3' as provided in Section 5 (1) itself. The contention of the learned counsel is that before giving the benefit of Section 5 to a decree-holder the Court has to see if the conditions prescribed by Section 3 of the Act satisfied in the case of a particular decree which is sought to be executed. It has, however, been held by this Court in several cases, viz. Mustafa Khan v. Ram Bharose : AIR1945All23 and Pohkar Singh v. Mulaim Singh : AIR1945All137 , which are single Judge cases, and a Full Bench case of this Court Behari Lal v. Ganga Prasad : AIR1945All117 , in which both the earlier single Judge decisions have been approved, that :

'Section 5 is independent of and is not subject to the provisions of Section 3 and it is controlled by that section (S. 3) only to this extent that its application is restricted to the decrees referred to in Section 3 and not covered by Section 6 of the Act. 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 .... Once it is found that the decree is of the character contemplated by Section 3 and not covered by Section 6, it will attract the application of Section 5, irrespective of the fact whether an application for stay has or has not been filed ..... or whether the agriculturist judgment-debtor comes within Section 3 (1) or not.'

7. It must be noted that Section 5, Temporary Postponement of Execution of Decrees Act, which governs the computation of the period of limitation affects not only limitation as prescribed by the Limitation Act, but also limitation which may be prescribed by 'any other law for the time being in force'. There is no question hereof the applicability of Section 6. It seems, therefore, clear that benefit of Section 5 of this Act was available, to the decree-holder.

8. The result, therefore, is that from 1-1-1938 to 31-13-1940, execution of this decree could not be carried out. It follows that the time available by reason of Section 6, proviso 2, Agriculturists' Relief Act, read with Section 15, Debt Redemption Act, has to be considered in this case and the exclusion of time prescribed by Section 5, Temporary Postponement of Execution of Decrees Act, would be applicable. Applying the principles deducible from the above, only the first instalment of the decree which fell due on 5-9-1937, was barred by time on the date of the present application for execution i. e. 7-11-1944. The application for execution in regard to the other instalments would be within time as time would begin to run in respect of them only on 1-1-1941.

9. The decision of the Court below is thus quite correct. The result is that the appeal is dismissed with costs.


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