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M.M. Abdul Karim Vs. Ali Bakhsh and ors. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1949All243
AppellantM.M. Abdul Karim
RespondentAli Bakhsh and ors.
Excerpt:
- - 7. on the whole we are satisfied that there is no reason to give to section 5 the restricted inter-pretation which the lower court has placed upon it......suit against them also must be held to be barred.3. section 5 runs thus:5. (i) 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 in section 3, and not covered by section 6, the period during winch this act shall remain in force shall be excluded.this section or any other provision in the act does not forbid the institution of a suit by a creditor, though section 3 would render the filing of such a suit futile for section 3 (1) lays down thatall proceedings in execution of any decree for money or for fore-closure or.....
Judgment:
ORDER

1. This revision application under Section 25, Small Cause Courts Act, was referred to the Bench by one of us. The question which arises is whether the suit filed against three joint executants of a ruqqa two of whom are agriculturists and the third a non-agriculturist, will be governed by the provisions of Section 5, U.P. Act X [10] of 1937 (The Temporary Postponement of Execution of Decrees Act) so as to prevent its being time-barred.

2. The learned Judge of the Court of Small Caution has dismissed the suit as being time. barred because in his view the limitation for recovery of money due under the ruqqa began to run against the non-agriculturist from the date of execution and as Section 5 does not contemplate the running of one kind of limitation against the agriculturist and another against the non- agriculturist, the suit against them also must be held to be barred.

3. Section 5 runs thus:

5. (I) 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 in Section 3, and not covered by Section 6, the period during winch this Act shall remain in force shall be excluded.

This section or any other provision in the Act does not forbid the institution of a suit by a creditor, though Section 3 would render the filing of such a suit futile for Section 3 (1) lays down that

all proceedings in execution of any decree for money or for fore-closure 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 is, at the date of the passing of this Act, an agriculturist shall be stayed during the period this Act shall remain in force....

Even if a creditor obtains a decree against debtors, both agriculturists and non-agriculturists, Section 3 would prohibit the execution of the decree against both of them. Similarly, under Sub-section (3), all attachment of growing crops, agricultural produce...made in execution of decrees, the execution of which has been stayed under Sub-section (1)...shall be withdrawn. By Sub-section (4) all proceedings under the Provincial Insolvency Act, 1920, against an agriculturist to whom Sub-section (1) applies shall be stayed during the period the Act shall remain in force. It is obvious from the reading of Section 3 as a whole that the intention of the Legislature was to prevent the execution of the decrees and other proceedings permissible by law in the process of execution so long as the Act was to remain in force and this benefit was not taken away by the fact that some of the co-judgment-debtors were non agriculturists. It follows from this that despite the fact that the principal object of the Act was to confer benefit upon the agriculturist debtor, the non-agriculturist also participated in such benefit. The same spirit runs through Section 4 which says:

(1) On the date on which this Act comes into force, all persons in detention in civil prison in execution of any decree for money, passed by a civil Court in which the judgment-debtor or any one of the judgment-debtors is an agriculturist, shall be released.

(2) No person shall in any case be liable to arrest or detention in civil prison in execution of any such decree as is referred to in Sub-section (1) during the period the Act shall remain in force.

4. It is true that in Section 5 the words 'any one of the defendants is an agriculturist' do not find a place as they do in S3. 3 and 4, but this addition was perhaps unnecessary in view of the foregoing provisions of the Act. For aught we know it may be an accidental omission. It seems to us inconceivable that while a decree which is the culmination of a suit was to be expressly stayed both against the agriculturist and non-agriculturist judgment-debtor, the Legislature would not have intended to confer a similar benefit upon the creditor to exclude the period during which the Act was in force in computing the period of limitation prescribed for the institution of the suit against the agriculturist and non-agriculturist who happened to be the joint executants of a promissory note.

5. A learned Judge of the late Chief Court of Avadh held in Bhanpratap Singh v. Surat Singh A.I.R. (33) 1946 Oudh 56 that the right conferred by Section 5, U.P. Temporary Postponement of Execution of Decrees Act was more in the nature of a vested right than a matter affecting merely procedure. This right which vests in the creditor cannot be taken away merely because some of the defendants to the suit are non-agriculturists.

6. We may also refer to Vellayyan Chetty and Anr. v. Muthayya Chetty and Ors. A.I.R. (8) 1921 Mad. 116 where it wag held that where execution against one of several judgment-debtors is stayed, limitation is suspended against the others also.

7. On the whole we are satisfied that there is no reason to give to Section 5 the restricted inter-pretation which the lower Court has placed upon it. Accordingly we hold that the decree of the lower Court cannot be maintained.

8. We allow the revision, set aside the decree of the Court below and decree the suit with costs throughout.


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