1. These are two connected Special Appeals that arise out of execution matters. They involve common points and can therefore be disposed of together.
2. The appellant is the decree-holder. He obtained decree No. 2331 of 1933 from the Court of the Judge Small Causes at Gorakhpur on the 30th of August, 1933. Another decree No. 1142 of 1933 had also been obtained by him from the same Court. This latter decree had been transferred for execution to the Munsif of Bansgaon and an execution application in respect of it was pending in that Court. The decree NO. 2331 of 1933 was also transferred to the Court of the Munsif of Bansgaon and an application to execute it was filed in that Court. On the 17th of September, 1941, the decree-holder made a statement before the Munsif of Bansgaon that his execution application in respect of decree No. 1142 of 1933 be struck off though attachment of the attached properties may continue. The execution application was accordingly struck off and it was directed that the attachment might subsist. On the same day another order was passed in respect of the application for execution made for executing decree No. 2381 of 1988 and that application too was struck off. After the two execution eases had thus ended in the Court of the Munsif of Bansgaon by the order dated the 17th of September, 1941, the records were sent back to the Judge Small Cause Court of Gorakhpur. On the 16th of October, 1941, the Munsarim of the Small Cause Court Judge of Gorakhpur directed that the papers be consigned to the record room.
3. On the 14th of October, 1944, the appellant got the two decrees again transferred to the Munsif of Bansgaon and filed applications for their execution. The application were ultimately rejected.
4. On the 14th of April, 1946, within three years of the rejection of the applications for execution which had been made the second time the appellant made his third application for the execution of the two decrees in the Court of the Munsif of Banaras, which gave rise to the execution cases out of which the present appeals have arisen.
5. The two persons against whom the two decrees had been passed were Chander Dev Pathak and Sadanand Pathak sons of Pt. Ram Dihal Pathak. Chander Dev Pathak had three sons. Ram Narain Pathak, Prem Narain Pathak and Rameshwar Pathak. The execution was proceeding against Sadanand Pathak and the sons of Chander Dev Pathak. One of these sons Ram Narain Pathak was employed in the army. It is not disputed that he got employed in the army in July 1944. The lower appellate Court has said that he continued in the military employment till November, 1946, but the learned Single Judge has on the basis of a letter issued by the Officer Commanding on the 8th of January, 1947, said that Ram Narain Pathak had been dismissed from the military service with effect from the 3rd of January, 1945.
6. When the applications for execution were filed the third time the judgment-debtors raised an objection about limitation. They contended that the applications for execution which had been filed the second time had really been filed beyond time and on that account they ought not to have been entertained. They being barred by limitation the subsequent applications for execution also ceased to be maintainable and were liable to be dismissed. The ground on which the applications for execution made the second time were said to be time-barred way that the final order made by the executing Court (the Munsif of Bansgaon) in respect of last execution applications was dated the 17th of September, 1941. The three years period of limitation, it was contended, was to be counted from that date and the decrees ought to have been executed on or before the 16th of September, 1944. The limitation could not, it was urged, be counted from the date on which the Munsarim of the Small Cause Court Judge directed the consignment of the papers to the record room and the fact that the applications for execution were filed within three years from that date could not save them from limitation.
7. Before the learned Munsif in whose court the applications for execution made for the third time had been filed the decree-holder sought to save them from limitation on two grounds. The first was that he could count the three years period of limitation from 16-10-1941, that being the date of final order in the case; and the second was that the applications for execution were really a revival of the earlier applications which had not in fact been dismissed. The second ground was not accepted and it was held that the earlier applications for execution had in fact been dismissed at the decree-holder's own request and could not be deemed to be pending. The first ground was however accepted as the learned Munsif was of the opinion that limitation could be counted from the 16th of October, 1941, and not from the 17th of September, 1941.
8. The judgment debtors went up in appeal in each of the two cases against the order of the Munsif and the appeal were heard by the second Temporary Civil and Sessions Judge Banaras. He disagreed with the view of the Munsif that limitation could he counted from the 16th of October, 1941, and was of opinion that it should have been counted from the 17th of September, 1941. Prima facie, therefore, the applications filed on the 14th of October, 1944, were time-barred. The plea that the earlier applications for execution had not been dismissed and could be revived was not apparently pressed before the learned Civil Judge. Instead a new ground of saying limitation was urged. That ground was that one of the judgment debtors. Ram Narain Pathak had been in military employment from July, 1944, till the 30th of November, 1946, and the decree-holder could under Section 11 of the Indian Soldiers (Litigation) Act, 1925, (Act IV of 1925) get that period excluded while counting limitation. This contention was however rejected on the ground that Section 11 of the Soldiers (Litigation) Act, 1925, was subject to Section 6 of that Act and as the interest of Ram Narain Pathak was identical with that of the other Judgment-debtors in the case the decree holder could not get any advantage of the provisions of the Soldiers (Litigation) Act. The order of the Munsif was therefore set aside and the applications for execution were dismissed as time-barred.
9. Against the order of the Civi1 Judge the decree-holder came up in second appeal to this Court in each of the two cases and the appeals were hoard by Mr. Justice Mushtaq Ahmad. He agreed with the learned Civil Judge that limitation was to be counted not from the 16th of October 1941 but from the 17th of September, 41. He also agreed with him about the interpretation of Section 11 of the Soldiers (Litigation) Act and was of opinion that the decree-holder could not get the benefit of that Act for extending limitation. He therefore dismissed the Execution Second Appeals. He granted permission to file a Special Appeal in each of the two cases.
10. The Special Appeals that are now before us have been filed in pursuance of the permission granted by the learned Judge and the correctness of his view has been challenged on both the points involved.
11. The first question that therefore arises for consideration is as to whether the three years period of limitation was to be counted from the 17th of September, 1941, on which date the munsif of Bansgaon had dismissed the execution cases that were pending before him, or whether it was to he counted from the 16th of October, 1941, when the Munsarim of the Court which had passed the decrees had directed the papers to he consigned to the record room.
12. The answer to this question depends on the interpretation of Clause (5) of Article 182 of the Limitation Act. That Article provides a limitation of three years for the execution of a decree or order of any Civi1 Court and where an application for execution has been made in accordance with the law to the proper Court or an application for taking some stop in aid of the execution of the decree or order has been filed it is to be counted from the date of the final order passed on the application made. The second explanation appended to the Article defines the 'proper Court as the Court whose duty it is to execute the decree or order.
13. It is common ground that the decrees in question were passed by the Small Cause Court fudge and were transferred for execution to the Munsif of Bansgaon under Section 39 of the Civil Procedure Code read with Order XXI Rule 6 of that Code. After the decrees had been received on transfer the applications for execution were filed in the transferee Court and were proceeded with to a certain extent. The applications for execution were then dismissed at the instance of the decree-holder himself. The execution cases thus came to an end and the papers were returned to the Court which had passed the decrees. The presiding officer of that Court did not himself pass any under but the Munsarim made a sort of a note directing that the papers be consigned to the record room. It was contended on behalf of the appellant that the final order contemplated by Clause (5) of Article 182 must in the above circumstances be held to be the order passed by the Munsarim on the 16th of October 1941. The respondents, on the other hand, contended that the final order was really the order passed by the Munsif of Bansgaon on the 17th of September, 1941.
14. The final order referred to in Clause (5) of Article 182 is, in our opinion, the final order relating to the application for execution or to the application for taking some steps in aid of the execution. So far as exception case is concerned the final order will be an order which brings the execution ease to an end. The Court which was seized of the execution cases and way the proper Court for the purpose of the second explanation appended to Article 182 was really the Court of the Munsif of Bansgaon before which the execution applications had been filed. So far as the execution applications were concerned the order dated the 17th of September, 1941 brought them to an end and operated as the final order. The papers were certainly sent back to the parent Court i.e., the Court which had passed the decrees but no further order in connection with the execution matter was required to be passed by the latter Court. The papers were bound to be consigned to the record room whether any order was passed by that Court or not. The note or the order of the Munsarim directing the papers to be consigned to the record room was therefore an entirely unnecessary order not contemplated by law. Learned counsel for the appellant has not been able to draw our attention to any rule which required the Court which passed the decree or the Munsarim of that Court to pass an order of that kind. He referred to paragraph 164 of the General Rules (Civil) published in 1957. The relevant part of that paragraph reads like this:
The record of proceedings (by the transferee Court) shall be returned to the Court by which the decree was sent for execution;
(a) when the decree has been executed, wholly or in part, by the court to which it has been sent;
(b) when the decree by found for any reason to be incapable of execution, or
(c) if no application is made for execution, after the expiry of one year from the date on which the decree was received.
In the case of (b) or (c), along with the file shall be sent a statement explaining the reason for the return of the record. In no case shall such file be consigned to the record-room of the court to which the decree has been sent for execution. The court by which the decree was sent for execution shall, on receiving back these papers, cause them to be filed with the application of the decree-holder for execution.'
Even if it be assumed that the last sentence relates to the cases covered by all the three categories mentioned in Clauses (a), (b) and (e), it does not require any order of the court directing the papers to be filed. The only requirement is that the papers shall not be consigned to the record room of the transferee court but shall be sent to the record room of the transferor court. Even though the order consigning the papers to the record room is passed it will not be necessarily the final order relating to the execution ease. That final order will, already have been passed by the court which executed the decree and the execution application will have come to an end by that Order. The order or direction consigning the papers to the record room will only be a consequential or ancillary order which cannot by any stretch of language be called a final order in the execution case.
15. It was, however, urged that the proper court in the present case was the court which had passed the decree and not the court to which the decrees had been transferred for execution and stress was laid on the fact that the court which had passed the decrees was the court which had the ultimate power to execute the decree. So far as the transferee court was concerned it was the proper court in relation to the application for execution filed in that court because it had power to proceed with that execution and to execute the decree as prayed. The residuary power of the court which had passed the decree, however, remained unaffected and for other purposes including other applications for execution that court was the proper court. We are however concerned in the present case with the proper court which passed the final order in the execution cases and that court could only be the court of the Munsif of Bansgaon and not the court of the Small Cause Court Judge.
16. With respect, therefore, we are in agreement with the view taken by the learned Single Judge on this point and are of opinion that he was right in his view that the three years limitations was to be counted from the 14th of September 1941 and not from the 16th of October 1941.
17. For a proper appreciation of the second point reference is necessary to the various provisions of the Indian Soldiers (Litigation) Act, 1925. According to Clause (b) of Section 2 of the Act 'Indian soldier' means a person subject to the Army Act or the Air Force Act Section 3 then defines two expressions 'under special conditions' and 'under war conditions'. The definitions read:
'(a) under special conditions--when no is or has been serving under war conditions, or overseas, or at any place beyond India;
(b) under war conditions--when he is or has been, at any time during the continuance of any hostilities declared by the Central Government by notification in the Official Gazette to constitute a state of war for the purposes of this Act or at any time during a period of six months thereafter-
(i) serving out of India,
(ii) under orders to proceed on field service.
(iii) serving with any unit which is for the time being mobilised, or
(iv) serving under conditions which, in the opinion of the prescribed authority, preclude him from chaining leave of absence to enable him to attend a Court as a party to any proceeding, or when he is or has been at any other time serving under conditions service under which has been declared by the Central Government by notification in the Official Gazette to be service under war conditions;'
Section 4 requires that if a person presenting any plaint, application or appeal to any Court has reason to believe that any adverse party is an Indian soldier who is serving under special conditions, he shall state the fact in his plaint, application or appeal Section 5 authorises the Collector to intervene in the case of unrepresented soldiers. Section 6 then provides for suspension of pending proceedings in cases of unrepresented Indian soldiers. It reads:
'6. (1) If a Collector has certified under Section 5, or if the Court has reason to believe, that an Indian soldier, who is a party to any proceeding pending before it, is unable to appear therein, and if the soldier is not represented by any person duly authorised to appear, plead or act on his behalf, the Court shall suspend the proceeding, and shall give notice thereof in the prescribed manner to the prescribed authority;
Provided that the Court may refrain from suspending the proceeding and issuing the notice if
(a) the proceeding is a suit, appeal or application instituted or made by the soldier, alone or conjointly with others with the object of enforcing a right of pre-emption, or
(b) the interests of the soldier in the proceeding are, in the opinion of the Court, either identical with those of any other party to the proceeding and adequately represented by such other party or merely of a formal nature.
(2) If it appears to the Court before which any proceeding is pending that an Indian soldier though not a party to the proceeding is materially concerned in the outcome of the proceeding and that his interests are likely to be prejudiced by his inability to attend, the Court may suspend the proceeding and shall give notice thereof in the prescribed manner to the prescribed authority.'
Section 10 provides for setting aside decrees and orders passed against Indian soldiers serving under war or special conditions. Then comes Section 11 which reads as follows:
'11. In computing the period of limitation, prescribed by Sub-section (2) of Section 10 of this Act, the Indian Limitation Act, 1908, or any other law for the time being in force, for any suit, appeal: or application to a Court, any party to which is or has been an Indian soldier, or is the legal representative of an Indian soldier the period during which the soldier has been serving under any special conditions, and, if the soldier has died while so serving, the period from the date of his death to the date on which official intimation thereof was, sent to his next-of-kin by the authorities in India, shall be excluded: Provided that this section shall not apply in the case of any suit, appeal or application instituted or made with the object of enforcing a right of pre-emption except where the said right accrues in such, circumstances, and is in respect of agricultural land and village immovable property situated in any such area as the Central Government may, by notification, in the official Gazette, specify in this behalf.'
The contention urged on behalf of the appellant is that Section 11 lays down an absolute rule which modifies the law of limitation and under it if the conditions mentioned in the section are fulfilled the period during which any party to the suit, appeal or application has been serving under special conditions must be excluded from the limitation. In the present case it is urged that Ram Narain Pathak one of the judgment-debtors was admittedly serving in the army and had been serving there from July 1944. According to one version he was in service till the Ist of January 1945 while according to another he was in service till November, 1946. Whatever may be the date of the termination of his services in the army he was certainly in the military employment for more than a year. Under Section 11 of the Act the decree-holder is entitled to have this period of one year excluded from the three years period of limitation prescribed by Article 182 of the Indian Limitation Act and if that is done his second application for execution filed on the 14th of October, 1944, will be within time.
18. Three grounds were put forward on behalf of the respondents to meet this claim of the decree-holder that he could get the benefit of Section 11 of the Act in the present case. The first ground was that as required by Section 4 the decree-holder had not mentioned in the application for execution that Ram Narain Pathak was serving in the army. The second ground was that Section 11 was really subject, to the provisions of Section 6 and according to the latter section the benefit of this Act could be claimed only if there was no other party to the suit having interest identical with the serving soldier. The third ground is that Section 11 by its terms requires that only that period can be excluded from limitation in which the soldier concerned has been serving under special conditions and in the present case there is no material to show for what period, if any, Ram Narain Pathak was serving under special conditions.
19. The first ground does not appear to be of much force. Section 4 only says :
'4. If any person presenting any plaint, application or appeal to any Court has reason to believe that any adverse party is an Indian soldier who is serving under special conditions, he shall state the fact in his plaint, application or appeal.'
It does not provide a penalty for omission to mention the fact and requires the mention only if the appellant or the applicant has reason to believe that the adverse party is an Indian soldier. There appears to be no material before us on the basis of which we can say that the decree-holder was aware of Ram Narain Pathak's being an Indian soldier at the time when he presented the applications for execution or had any reason to believe that he was so employed. If the fact that Ram Narain Pathak was employed in the army is admitted the appellant cannot be deprived of the benefit of Section 11 simply because he omitted to mention the fact in the applications for execution.
20. The second ground also appears to be untenable. A comparison of the provisions of Sections 6 and 11 of the Act will show that they are independent provisions providing for different situations and the one does not necessarily control the other. Section 6 provides for suspension of pending proceedings and has nothing to do with the exclusion of any particular period while calculating limitation. Section 6 does not require that the unrepresented soldier should be serving under special conditions or under war conditions. The power of suspension has been made dependent 0:1 certain factors including information about where the soldier is employed and the fact that his interest can be looked after by another party in the case. Section 11 has, on the other hand, nothing to do with the pending proceedings and does not deal with suspension of any proceedings. Its provisions do not depend on the information conveyed by the Collector or on the information that the interest of the serving soldier can be looked after by the other parties in the case. Section 11 provides clearly that if an Indian soldier is serving under special conditions the period of his service shall be excluded while computing the period of limitation not only under Section 10 of the Act but also under the Indian Limitation Act or any other law for the time being in force. It is therefore not easy to see how the provisions of Section 11 can be said to be controlled by or subject to the provisions of Section 6. Standing by itself Section 11 has nothing to do with the interest of the soldier being identical with those of the other parties in the case. On that basis it will not be possible to refuse the advantage of the provision to the per son who files the suit, appeal or application. He is entitled under the provisions of that section as of right to get a certain period excluded from the period of limitation if he is able to satisfy the court that one of the persons who is a party to the proceedings is serving under special conditions He will get that benefit whether other parties to the suit can or cannot represent the interest of the soldier party. The considerations which are relevant for the purpose of Section 6 are therefore not material for the purpose of Section 11.
21. If therefore the appellant could satisfy the court that Ram Narain Pathak, one of the judgment-debtors, was serving tinder special conditions within the meaning of the term as defined in the Act for any particular period he can get that period excluded from limitation. He could not be deprived of that right by any considerations which may be relevant for the purpose of Section 6.
22. Unfortunately on the materials now before us it is not possible for us to record any definite finding as to whether Ram Narain Pathak was actually serving under special conditions as defined in Section 3 of the Act during the period of his employment in the military department. A letter of his Commanding Officer issued on the 9th of January 1947 has been referred to but that letter is not available in the file before us. The Munsif or the Civil Judge have not gone into this matter and have not considered the case from this point of view. The learned Single Judge has certainly considered that letter but has not based his finding upon that letter. On the contrary he has expressed the opinion that Ram Narain Pathak must be deemed to be serving under war conditions because 'the entire Indian Army. I understand, was during that period formed of Mobilised Units, and this obviously on account of war. I cannot see how Ram Narain, though serving in the Army in India, could not be regarded as 'serving under war conditions' within the meaning of the said clause'. The learned Single Judge has not mentioned the materials on which he was given to understand that during the period in question the entire Indian army was formed of mobilised unit.
In the circumstances we feel that this point which is a point of fact cannot be decided without further evidence being furnished in .respect of it. The decision on this point is necessary because till it is proved that Ram Narain Pathak was serving under war conditions or under special conditions within the meaning of the terms as denned in Section 3 of the Act, the question whether the benefit of Section 11 of the Act can be claimed or not cannot be properly decided. We think it will be fair if the case is sent back to the trial court for a decision of this question of fact. The question whether the appellant can claim benefit of Section 11 of the Act must be decided after that question of fact has been decided keeping in view the observations we have made in this judgment.
23. The appeals therefore succeed to this extent that the order allowing the judgment-debtors' objection about limitation is set aside and the cases are sent back to the trial court for a decision of the question whether Ram Narain Pathak judgment-debtor was serving under special conditions or war conditions as denned in Section 3 of the Soldiers (Litigation) Act during the period 17-9-1941 to 14-4-1946. Parties will have a right to produce any additional evidence they may like to produce on this point. After that question has been decided the trial court shall, bearing in mind the observations we have made in this judgment, proceed to decide the question whether the appellant is entitled to get the benefit of Section 11 of the Soldiers (Litigation) Act and then decide the question of limitation.
Costs hitherto incurred shall abide the finalresult.