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Chhattar Singh and anr. Vs. Kamal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1927All16
AppellantChhattar Singh and anr.
RespondentKamal Singh and ors.
Excerpt:
..............pending, that it be 'struck off,' or 'sent to the record room,' made either without notice to the decree-holder, or without giving him an opportunity of being heard, is a ministerial order, and cannot be regarded speaking generally as a judicial disposal of the application on the merits, though special circumstances may appear which make it so. secondly, whether an application is in substance a fresh one, or an attempt to revive a former one, is, as a general rule, a question of fact to be decided with reference to all the circumstances of the case.lindsay, j2. the question referred to this full bench for decision is one of limitation, namely whether an application made by the decree-holders on the 10th january 1923 was liable to be dismissed as being beyond time. the courts below.....
Judgment:

Walsh, Ag. C.J.

1. I have read the judgments delivered by the other members of the Bench, and agree with them generally. I desire to make only two observations. In my opinion, an order made by a Judge upon an application which is still pending, that it be 'struck off,' or 'sent to the record room,' made either without notice to the decree-holder, or without giving him an opportunity of being heard, is a ministerial order, and cannot be regarded speaking generally as a judicial disposal of the application on the merits, though special circumstances may appear which make it so. Secondly, whether an application is in substance a fresh one, or an attempt to revive a former one, is, as a general rule, a question of fact to be decided with reference to all the circumstances of the case.

Lindsay, J

2. The question referred to this Full Bench for decision is one of limitation, namely whether an application made by the decree-holders on the 10th January 1923 was liable to be dismissed as being beyond time. The Courts below treated it as time-barred; in Second Appeal the decree-holders contend that it was made within time. The facts are fully set out in the referring order; it will be sufficient to state here such of them only as bear immediately upon the question now before us.

3. The appellants, who are the decree-holders, obtained a final decree for sale on the 7th June 1913. They made an application for execution on the 4th January 1916, and on the 23rd March 1916, the execution proceedings were transferred to the Collector for execution as the property sought to be sold was ancestral. On the 13th November 1916, while the proceedings were still pending before the Collector, a suit was brought to obtain a declaration that the property was not liable to be sold in execution. The litigation, thus commenced, went on till the 6th July 1920, when this Court decided that the property was liable to be sold and dismissed the suit.

4. It is admitted before us that by reason of injunctions issued in the course of the litigation just referred to, the execution proceedings in the Collector's Court were stayed, and that the bar to the progress of those proceedings was eventually withdrawn by the judgment of this Court dated the 6th July 1920. It is import ant to consider now what happened after the date just mentioned.

5. The Collector took up the case on the 17th August 1920, and recorded an order in which it was recited that in spite of notice given to the son of one of the decree-holders, no steps were being taken to prosecute the case in his Court. Being of opinion that there was default in prosecution (adam pairawi) he directed that the papers should be returned to the Court of the Subordinate Judge. The record reached the office of the Subordinate Judge and was placed before him on the 31st August 1920, whereupon, without issuing notice to either of the parties, he ordered that the application for execution should be struck off the list of pending applications, that a note to this effect should be recorded in the appropriate register and that an entry should further be made in the register of decided cases. These orders were clearly based upon the statement or opinion of the Collector in his order of the 17th August to the effect that the decree-holders were taking no steps to prosecute the execution proceedings. Nothing more was done by the decree-holders till the 10th January 1953 when they presented the application which forms the subject-matter of the present appeal. In form this application is one for execution of the decree, drawn up in accordance with the rules prescribed for such applications. It refers to previous applications made for execution but, strangely enough, makes no mention of the application made on the 4th January 1916. Attached to the application was a statement setting out the history of the suit concerning the property sought to be sold and reciting that this suit had been finally disposed of by the High Court in second appeal on the 6th July 1920. The narrative concluded as follows:

The appeal was decided in favour of the decree-holders by the Honourable High Court. The application for execution is therefore within time.

6. It is apparent, therefore, that while the decree-holders were styling their application as one for execution they were claiming that the starting point of limitation for it was 6th July 1920, the date of the High Court decision.

7. The Courts below treating the application as one for execution of the decree have applied limitation as provided in Article 182 of the First Schedule to the Limitation Act; and it is conceded that if the application is, in reality, an application for execution the Courts below were right.

8. For the decree-holders, however, it is argued that the application, though in form an application for execution, is in substance one of a different character, namely, an application to revive or continue execution proceedings which had been stayed by injunction. It is contended that the proceedings in execution which began with the application of the 4th January 1916 were never brought to an end by a judicial order which had the effect of disposing finally of the application so as to make it follow that the decree-holders could not thereafter move for execution except by presenting a new and independent application.

9. It is said that the law does not contemplate the simultaneous prosecution of two identical applications for execution; accordingly if, for the reason given above, the earlier application of the 4th January 1916, was still pending, the later application of the 10th January 1923, cannot be treated as an independent application for execution to which the rule of limitation contained in Article 182, applies.

10. On these grounds, then, it is urged that the application of the 10th January 1923 must be governed by Article 181 inasmuch as it is an application for which no period of limitation is provided elsewhere in the first schedule or by Section 48 of the Code of Civil Procedure and as the right to make the application accrued only on the 6th of July 1920, when the decree of this Court removed the obstacle to the execution proceedings, the present application, made within three years of that date is within time.

11. That was the view taken by the Bench which allowed this appeal ex parte on the 8th March 1926.

12. As opposed to this, we have the argument that the application of the 10th January 1923 was, as it purported to be an application for execution, a distinct and independent application to which the provisions of Article 182 necessarily apply. Dr. Agarwala, in support of this contention, has to rely upon the order of the Subordinate Judge dated the 31st August 1920 in order to show that the proceedings in execution had been definitely brought to a close, so that there could be no occasion for their revival. In our opinion, the order of the Subordinate Judge did not produce this effect. In the first place it was an improper order, one passed behind the backs of the parties. It is lear that no notice was given to either party. And in the second place the order in its terms was not one justified by any law of procedure. It has been repeatedly observed in judgments of this Court that an order striking off a pending application' for execution is not recognized by the law. This view was again expressed in a recent judgment of a Bench of this Court where it was said that an order, directing an execution application to be struck off, was not an order sanctioned by any rule; Sat Narain v. Ganga Jal : AIR1926All409 .

13. If this be so it follows that the order of the Subordinate Judge of the 31st August 1920, was invalid in law for the purpose of concluding the execution proceedings initiated by the application of the 4th January 1916. The only result it could have was that of leaving the proceedings still pending.

14. In this view the application of the 10th January 1923 was one made during the pendency of execution proceedings, and is not to be treated, therefore, as a fresh application for execution. It is, in substance, merely an application asking the Court to continue the earlier proceedings. As such it is outside the purview of Article 182.

15. Dr. Agarwala has argued earnestly that applications for revival of previous execution proceedings, though they have for a long time been countenanced by the Courts are, as matter of law, no longer competent, regard being had to an amendment of the law introduced in Section 15 of the Limitation Act (Act 9 of 1908). This section lays down a rule for the computation of the period of limitation according to which the time of the continuance of any injunction or order staying the institution of a suit or the execution of a decree is to be excluded in determining whether the suit, or an application for execution of the decree, is brought within time. It is pointed out that under the previous Limitation Act (Act 15 of 1877) the rule applied only to suits; under the new Act it has been extended to applications for execution of decree. The result is, it is said, that there is now a definite provision which in the case of applications for execution forbids any extension of time beyond the limit arrived at by deduction of the period during which the injunction or order has continued.

16. But Section 15, even as it now stands, refers to applications for execution of decree, and does not affect to deal with applications which, in substance, are not applications for execution, but merely applications to move a Court to continue proceedings which had come under suspension by reason of an injunction order.

17. We are unable therefore to hold that the law as amended prohibits either expressly or by necessary implication the making of these applications for revival which the Courts both before and since the commencement of the Limitation Act (Act 9 of 1908) have treated as competent. We need only refer in this connexion to the judgment of the Privy Council in Qamar-ud-din Ahmad v. Jawahir Lal [1905] 27 All. 334 and to the interpretation put upon that judgment in the case of Madho Prasad v. Draupadi Bibi A.I.R. 1921 All. 99. At page 385 of the latter report Piggott, J., observes:

The case of Qamar-ud-din Ahmad v. Jawahir Lal [1905] 27 All. 334 is good authority for the proposition that in a case of this sort where the execution of a decree has been suspended through no act or default of the decree-holder, the latter has a right to ask the Court to revive and carry through the execution proceedings which have been suspended.

18. The only other question then is as to the period within which the right of the decree-holder to so apply must be exercised. As to this we think that the law is laid down correctly in a further passage of the judgment of Piggott J., in the above case which reads as follows:

He (i.e the decree-holder) can, however only do this by means of a proper application to that effect.... The application in question would be one for which no period of limitation is expressly provided by the schedule to the Limitation Act and would therefore fall under Article 181 of the schedule requiring to be made within three year of the date on which the right to make it accrued.

19. Obviously the right would accrue upon the date on which the obstacle to the progress of the execution proceedings was withdrawn.

20. Applying these principles to the case now before us we find that the obstacle was removed on the 6th July 1920 when the order of this Court dismissed the suit which led to the suspension of the execution proceedings commenced by the application of the 4th January 1926.

21. The application of the 10th January 1923 which we hold to have been in substance an application for revival was made within three years from the 6th July 1920 and so was within time under Article 181.

22. For these reasons we allow the appeal, reverse the orders of the Courts below and send the case back for disposal to the execution Court. The appellants to get their costs here and in the lower appellate Court. In this Court costs to be allowed on the higher scale.

Banerji, J.

23. I agree with Mr. Justice Lindsay and have nothing to add.

Sulaiman, J.

24. I have come to the same conclusion. The application out of which this appeal arises is certainly defective in form. The respondents' contention has been that having regard to its language, and the prayer asked for, it must be deemed to be a fresh application for execution and not one for revival. This is a matter not only of interpretation but of inference from all the circumstances. As my learned brethren consider that this can be treated as in substance an application for revival of the proceedings in execution, I am not disposed to differ. This inference will be strengthened if it be held that the previous application has really not yet been finally disposed of.

25. The main contention of Dr. Agarwala is that the doctrine of revival which was resorted to by the Courts under the old Limitation Act of 1877, is no longer applicable in cases where stay orders or injunctions have been issued. The Bench which heard the appeal ex parte held that the proceedings should be revived. But the Bench which has referred the case to the Full Bench was inclined to hold that the contention was worthy of much consideration and ought to succeed. The learned Counsel for the respondents argues that this doctrine was invented by the Court to help the decree-holder at a time when the law contained no provision to safeguard his interests. Section 15 of the Limitation Act No. 9 of 1908 is in terms made expressly applicable to cases where execution has been stayed by injunction. He therefore, contends that the only concession which can be made to the decree-holder is to exclude the time during which the injunctions were in force.

26. This argument ignores that the principle allowing a right of revival of a previous application is different and distinct from that permitting exclusion of time. The question of exclusion of time can only arise when a fresh application for execution is made, whereas it is only a previous application which has not been properly and finally disposed of which can be revived. The application for revival is not a fresh application for execution. The principle is based on equity and justice, and the decree-holder is merely to request the Court to take up and continue the proceedings which have not finally terminated, but which have remained in abeyance for some reason or other beyond his control.

27. It is not correct to say that the amendment of Section 15 was intended to sweep and replace the old doctrine of revival. The two principles are not co-extensive or identical. In cases where there has been no previous application for execution, but proceedings in execution have been stayed, Section 15 may be of help, whereas the doctrine of revival would have no application. Similarly, there may be cases where after the removal of the bar a previous application has been properly and finally disposed of. In such cases also no question of revival can arise, but the decree-holder will be entitled to deduct the period of suspension in consequence of the stay order or injunction. On the other hand there may be cases to which Section 15 cannot apply and yet the doctrine of revival may be of utility. For instance, execution proceedings may be postponed by agreement between the parties under some arrangement for payment during a definite period after which the decree-holder may request the Court to revive it, or proceedings might have been stayed long after an application for execution has been pending for three years in which case a mere exclusion of the time of suspension would never save a second application from limitation. That the amendment of the new section has not killed the doctRine of revival is shown by numerous cases decided under the new Act in which the old doctrine has been unhesitatingly applied.

28. The application for revival not being a fresh application for execution cannot be governed by Article 182. There is not, however, any special article which would apply except the omnibus Article 181. It has been held in several cases that this article applied to such applications. I may refer to the case of Balwant Singh v. Budh Singh [1920] 42 All. 564 which was a case under the new Act and in which the same principle was followed. When Article 181 applies, the period of limitation is three years from the date when the bar to the execution was removed. In the present case the bar was certainly not removed till the High Court, on the 6th of July 1920, allowed the appeal and dismissed the suit. The decree-holder, therefore, had three years from this last mentioned date to go to the Court and request it to take up the pending application and continue the proceedings. The mere fact that he did not turn up within a month or two of this date cannot deprive him of his right to move the Court within three years. The papers were returned by the Collector merely because no steps were taken by the decree-holder within two months. The Subordinate Judge, without even issuing any notice to the decree-holder, struck the case off from the pending file and consigned the record to the record room. That order cannot be deemed to be a final disposal of the application. The Court could not penalize the decree-holder for not appearing promptly when no notice had been issued to him. The Court could not cut down the period of three years which the decree-holder had under Article 181 to take steps for revival. The order striking off the proceedings, therefore, is no bar to the present application which, in my opinion, is within time.

Mukerji, J.

29. The point for the decision of which this case has been referred to a Full Bench, briefly stated, is whether Section 15 of the Limitation Act of 1908 has made it incompetent to a decree-holder to apply for the revival of a previous execution application made by him and whether any application that he makes for the continuance of execution proceedings must be treated as a fresh application.

30. The facts of the case will make the point clear and are referred to in the order of reference to which I was a party. Briefly they are as follows: A final decree for sale was made on the 7th of June 1913. After some unsuccessful application an application for execution was made on the 4th of January 1916. As the result of this application the decree was sent to the Collector for execution, as the property to be sold happened to be the ancestral property of the judgment-debtor. While the execution was still pending before the Collector, certain people filed a suit, on the 13th of November 1916, to obtain a declaration that the property ordered to be sold was not liable to be Sold in execution of the decree-holder's decree, On the same date the Court seised of the suit, enjoined the decree-holders from proceeding with the sale. The suit was dismissed. An appeal was filed and the appellate Court again issued an injunction restraining the sale. The appeal succeeded with the result that the decree was declared to be inexecutable. On a second appeal, however, the decree of the Court of first instance was restored, the suit having been dismissed in to by the High Court. This happened on the 6th of July 1920. It was, therefore, on this date that the obstacle to the execution of the decree was removed.

31. On the 17th of August 1920 the Collector recorded an order to the effect that the decree-holder's son had been intimated to, but the decree-holder had taken no steps to proceed with the execution and that, therefore, the papers should be sent back to the civil Court. The papers were received in the Subordinate Judge's Court on the 31st of August 1920 and, on that day, the learned Judge 'struck off' the execution proceedings, recording it, as the reason for his action, that the decree-holders were not prosecuting the case.

32. On the 10th of January 1923 the decree-holders made the application which we have now to consider. The application, if it be treated as a fresh application for execution of the decree, would be time-barred under the provisions of Article 182 of Schedule 1 of the Limitation Act, in spite of excluding the period of three years and odd during which the injunctions were in force against the decree-holders. But if the application of the 10th of January 1923 could be regarded as an application made for reviving the application that was made on the 4th of January 1916 and, if three years' time be computed from the 6th of July 1920, the date of the disposal of the second appeal by the High Court, the application would be in time. The argument on behalf of the judgment-debtors-respondents is that after the enactment of Section 15 of the Limitation Act of 1908, the application of the 10th of January 1923 cannot be regarded as anything but a fresh application for execution. We have to see whether this argument is sound.

33. It may be at once pointed out that under the Limitation Act of 1877, Section 15, as it then stood, did not cover the case of an execution application, the proceedings under which had been stayed by injunctions issued by Courts. It is argued on this ground that whenever an application is made by the decree-holder asking the Court to proceed with the execution of his decree, that application must be treated as an application for execution and limitation must be computed having regard to the provisions of Article 182 and Section 15 of the Limitation Act.

34. This argument has, on the face of it, the merit of some plausibility, but is not really correct. There is an essential difference between an application for execution of a decree and an application to a Court asking it simply to revive a previous application made for the execution of the decree. It is really a question of fact, a question of the intention of the decree-holder as to what he wants. It is not a question of pure law. If, in the case before us, on the 81st of August 1920, before the order was recorded by the Subordinate Judge, the decree-holder had gone to him and asked him, by an application, not drawn up in the usual 10-column form for execution, to send back the case to the Collector for execution, it could hardly have been said that they were applying for an execution of the decree, within the meaning of Article 182 of the Limitation Act. In that case, the application would have been simply to the effect that the bar to the execution had been removed, that the Collector had wrongly returned the papers to the civil Court and that the civil Court should re-transfer the-case to the Collector and ask him to proceed with the execution. Thus, it seems clear to me, that there is a difference between a fresh or independent application for execution and an application (to the Court executing the decree) which does not amount to an 'application for execution.' It is to an application of the former class that Section 15 of the Lim. Act would apply and not to an application of the latter class.

35. To make the point clearer, I will give an illustration. Suppose the decree passed and sought to be executed is a simple money decree. The decree-holder seeks the execution of the decree by the arrest of the judgment-debtor. The judgment debtor institutes a suit to obtain a declaration that the decree was obtained by fraud and he obtains an injunction staying the execution of the decree. If after the dismissal of the suit, the decree-holder does not ask the executing Court to proceed with his application for the arrest of the judgment-debtor, but makes an application to it to attach the property of the judgment-debtor and to execute the decree in that way, this application would be a fresh application and would be governed by Article 182 read with Section 15 of the Limitation Act. If, on the other hand the decree-holder should apply to the Court executing the decree to proceed with the arrest of the judgment-debtor, he would be simply asking for a revival of the proceedings which were still pending and his application would not be governed by the rule contained in Section 15 of the Lim. Act.

36. Such being my view of the law, let us consider the present case. As already stated, on the 31st of August 1920, the learned Subordinate Judge 'struck off' the execution application without giving the decree-holder an opportunity to make an application before him to proceed with the execution and without intimating to the decree-holder that the Court was prepared to proceed with the execution. The order striking off the execution amounts simply to an order sending the papers to the record room. The order did not amount to an adjudication of the case. In the circumstances the previous execution application of the 4th of January 1916 was still pending and had not been substantially or judicially disposed of. The decree-holders, in making their application of the 10th of January 1923, referred to the fact that the High Court had disposed of the second appeal on the 6th of July 1920 and relying on that date, stated that their application was within time.

37. It is true that the application was made in the form of an ordinary application for execution with the several columns shown as usual. But it has been repeatedly said that we have to loot to the substance of the application and not to the form of it. If it were otherwise it would entirely depend on the skill of the draftsman whether a certain article of the Limitation Act should apply or any other. This cannot be permitted. We have already shown in our referring order that the plaintiffs' application should be treated as an application asking the Court to proceed with the previous application. To that opinion I still adhere.

38. In this view of the case the appeal ought to succeed and I would, therefore, set aside the decree of the Courts below and remand the execution case to the Court of first instance and direct it to proceed with the execution in accordance with law.


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