Skip to content


Seth Shyam Karan and ors. Vs. the Collector of Benares - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All64(2); 52Ind.Cas.742
AppellantSeth Shyam Karan and ors.
RespondentThe Collector of Benares
Excerpt:
civil procedure code (act v of 1908 ), section 48, schedule iii, para. 11(3), applicability of - 'period of limitation,' uhether includes period provided by section 48. - - for these reasons we hold that the' decision of the court below is right and these appeals must fail......was taken charge of by the colleotor, apparently under the provisions of section 326 of the code of civil procedure, 1882. [the management of the collector continued down to 1917, when he released the property. oh the 4th of april 1917 the court of wards, now in charge of the estate of the decree-holder, applied for attachment and sale of the property situated in the hamirpur district. this application was resisted by the judgment debtors on the ground of limitation. they contended that the application was barred by the three years' rule of limitation prescribed by the limitation act and also under section 48 of the code of civil procedure. the objection was allowed by the court of first instance, which held that having regard to the fact that more than twelve years had elapsed.....
Judgment:

1. This and the connected appeal arise out of execution proceedings in connection with a simple decree for money passed on the 18th of December 1897. Various applications for execution were made between that year and the year 1906. In 1905 the' property of the judgement-debtor in the District of Hamirpur was taken charge of by the Colleotor, apparently under the provisions of Section 326 of the Code of Civil Procedure, 1882. [The management of the Collector continued down to 1917, when he released the property. Oh the 4th of April 1917 the Court of Wards, now in charge of the estate of the decree-holder, applied for attachment and sale of the property situated in the Hamirpur district. This application was resisted by the judgment debtors on the ground of limitation. They contended that the application was barred by the three years' rule of limitation prescribed by the Limitation Act and also under Section 48 of the Code of Civil Procedure. The objection was allowed by the Court of first instance, which held that having regard to the fact that more than twelve years had elapsed since the date of the decree, Section 48 of the Code of Civil Procedure was applicable and the present application for execution could not be maintained. This decision has been overruled by the lower Appellate Court, which has held that the application for execution is within time.

2. The learned Vakil for the appellants has conceded that the three years' rule of limitation under the Limitation Act would not apply to the present case in view of the provisions of Clause (3), paragraph 11 of the 3rd Schedule to the Code of Civil Procedure, : 1908. He contends that, Section 48 is applicable and as more than twelve years have expired since the date of the decree, the present application cannot be granted. There can be no doubt that the present application is a substantive application and afresh application for the execution of the decree. It is not an application in con-tinuapoe of any previous application for execution. The question to be decided is whether Clause (3) of paragraph 11 'of the 3rd Schedule is applicable to the present case, so far as the question of the bar of Section 48 arises. Clause 2 of paragraph 11 provides that during the period that the property of the judgment-debtor is under the management of the Collector, no Civil Court shall issue any proeess of execution either against the judgment debtor or his property in respect of any decree for the satisfaction whereof provision has been made by the Collector under paragraph 7; Clause (3) provides that the same period shall be excluded in calculating the period of limitation applicable to the execution of any decree affected by the provisions of this paragraph in respect of any remedy of which the decree-holder has been temporarily deprived It is contended on behalf of the appellants that this clause applies to the period of limitation prescribed by the Limitation Act for the execution of a decree and that the period after which an application for execution cannot be made in view of the provisions of Section 48 of the Code of Civil Procedure is not a 'period of limitation' within the meaning of this clause. We think that the words 'period of limitation applicable to the execution of any decree' in Clause (3) have been used in a general sense and that they are intended to apply to the time beyond which an application cannot he made for execution of a decree. This was the view taken by the Judicial Commissioner's Court of Oadh in Mohammad Abdul Karim Khan v: Nawaz Singh 8 lad. Cas. 377; 13 O.C. 303. In that case a question similar to the one which arises in this appeal was considered and decided. The learned Judicial Commissioners were of opinion that Clause (3) of paragraph 11 was wids enough to include the case of an application to which Section 48 of the Code of Civil Procedure applies. As the learned Judicial Commissioners point out in that case, there are two descriptions of limitation provided for applications for execution. One is that prescribed by the Indian Limitation Act and the other is that provided in Section 43 of the Code of Civil Procedure. Section 48 forbids the granting of an application after the expiry of 12 years from the date of the decree except in the oases specified in the section. This provision lays down a limitation to the right of the decree holder to execute his decree as much as the Limitation Act prescribes different periods of limitation for repeated applications for execution. It seems to us that in Clause (3) of paragraph It the words period of limitation' are intended to apply to both kinds of restrictions placed upon the right of the decree holder to take out execution of his decree, and in this sense that clause would be applicable to a case to which Section 48 applies. Much reliance was placed on behalf of the appellants upon certain observations contained in the judgment of this Court in Jurawan Das v. Mahabir Dube 44 lad. Cas. 24 : 40 A. 198 : 16 A.L.J. 71. In that case the real question to be decided was whether- Section 15 of the Limitation Act was applicable to the case and whether the word prescribed' in Section 15 of that Act could be construed as including any period of limitation prescribed otherwise than by the provisions of the Limitation Act. It was held that the word 'prescribed' in Section 15 meant prescribed by the Indian Limiatation Act. In the course of the judgment, however, ,it was stated that Section 48 of the Code of Civil Procedure does not in a strict sense provide a, 'period' of limitation' These observations are relied upon in support of the contention that the words 'period of limitation' mentioned in Clause (8) do not include cases to which section. 48 of the Code of Civil Procedure applies. No doubt in a strict sense Section 48 does not prescribe a period of limitation, but in a general sense it imposes a 'limitation' on the right of the decree-holder to apply for execution after the expiry of twelve years from the date of the decree. In that general sense, although by Section 48 a period of limitation', strictly so-called, is not prescribed, the twelve years' rule in effect lays down 'the period of limitation applicable to an application for execution.' Those are the words used in Clause (3) of paragraph 11 of the 3rd Schedule to the Code of Civil Procedure. We think, there' fore, that the case relied on by the learned Vakil for the appellants is not in (sic) with the view which we have expressed above and with the decision of the Oudh Court to which we have referred. For these reasons we hold that the' decision of the Court below is right and these appeals must fail. We accordingly dismiss them with costs including fees on the higher, scale.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //