Skip to content


S. Mohd. Liaq and ors. Vs. Ramji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad
Decided On
Case NumberExn. Decree Appeal No. 58 of 1944
Judge
Reported inAIR1952All618
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 - Order 21, Rule 12; Limitation Act, 1908 - Schedule - Article 182
AppellantS. Mohd. Liaq and ors.
RespondentRamji and ors.
Advocates:Akhtar Husain, Adv.
DispositionAppeal allowed
Excerpt:
.....12 and section 2 (10) of code of civil procedure, 1908 - term judgment-debtor does not include legal representative of judgment-debtor - by bringing of legal representative on record also he will not be included in term judgment-debtor - decree-holder can get attached any movable property attached he finds in possession of judgment-debtor - he can only get attached such movable property from legal representative which later received from judgment-debtor - decree-holder has to give inventory of movable property which he wants to get attached. (ii) limitation - non-compliance - article 182 of limitation act, 1908 - application not granted for want of inventory - application was not in compliance of law. - - , it clearly emphasises the distinction between the two. in the first place..........the first execution application was filed on 22-8-1932; it was really an application to bring the legal representatives of mir muzaffar husain on the record. it was consigned to the record room on 22-12-1932. second execution application was filed in july 1935 & was consigned to the record room on the ground that the legal representatives were agriculturists. third application was filed in july 1938 & was consigned to the record room in february 1939. the fourth application was presented on 8-5-1941; it was for attachment of the house in which mir muzaffar husain had a half share. the legal representatives filed several objections against the application. in the meantime one of the legal representatives filed a suit for partition of her share in the house. the suit was referred to.....
Judgment:

Desai, J.

1. In 1931 the respondents obtain-ed a decree against Mir Muzaffar Husain for Es. 765 odd together with costs & interest. Mir Muzaffar Husain died on 21-1-1932 & has been succeeded by twelve persons, including the appellants. The first execution application was filed on 22-8-1932; it was really an application to bring the legal representatives of Mir Muzaffar Husain on the record. It was consigned to the Record Room on 22-12-1932. Second execution application was filed in July 1935 & was consigned to the Record Room on the ground that the legal representatives were agriculturists. Third application was filed in July 1938 & was consigned to the Record Room in February 1939. The fourth application was presented on 8-5-1941; it was for attachment of the house in which Mir Muzaffar Husain had a half share. The legal representatives filed several objections against the application. In the meantime one of the legal representatives filed a suit for partition of her share in the house. The suit was referred to arbitration & on 30-1-1943 a decree was passed on the basis of the award. While the suit was pending, the objections to the fourth execution application remained stayed. On 12-7-1943 the respondents-D. Hs. made an application for amendment of the fourth execution application. The amendment was opposed by the legal representatives on the ground that the fourth execution application was not an application in accordance with law & was barred by time & that the amendment application of 12-7-1943 was a fresh application & was consequently barred by the rule of three years' limitation. The objections were rejected by the executing Court. They went up in appeal to the Dist. J. who refused to interfere. So they have come up to this Court.

2. Whether the fourth execution application was time-barred or not depends upon the answer to the question whether the second & the third applications were in accordance with law. The second execution application was for attachment & sale of movables belonging to Mir Mazzaffar Husatin J. D. & in the possession of his legal representatives. The application however, was not accompanied by an inventory of the movables. It was contended that an inventory was obligatory under Order 21, Rule 12 & that as the mandatory provision was not complied with, the application was not in accordance with law. The view of the Court below is that the rule applied because the legal representatives are not J. Ds. within the meaning of the rule. The rule is that:

'Where an application is made for the attachment of any moveable belonging to a J. D. but not in his possession, the D. H, shall annex to the application an inventory of the property to be attached ....'.

Admittedly, no inventory was annexed to the second execution application & whether it ought to have been annexed or not depends upon whether the legal representatives are J. Ds. within the meaning of the rule. The decree was passed against Mr. Muzzaffar Husain; he was, therefore, the J. D. According to Section 2(10), C. P. C. 'Judgment-debtor' means any person against whom a decree has been passed'.

According to this definition a legal representative of a J. D. is not a J. D. because it cannot be said that a decree has been passed against him. He may be liable to discharge the decree out of the assets received by him from the J. D., but that liability attaches itself to him because of the receipt of the assets by him & not because of his being the J. D. There is a distinction recognised in law between 'J. D.' & 'legal representative'. Subject to the provisions of Section 60, C. P. C., all property of a J. D., is liable to attachment & sale & he is also liable to be arrested, but all property of a legal representative is not liable to attachment & sale & he cannot be arrested. Only that property which he has received from the deceased J. D., can be attached & sold.

3. An examination of the provisions of Sections 50 & 52, C. P. C., Supports the view that the teems 'J. D.' & 'legal representative of a J. D.' are not synonymous. It is laid down in Section 50, that where a J. D. dies before satisfying the decree in full the D. H. may apply to the Court to execute it against the legal representative of the deceased. When the section speaks of a J. D. & of a legal representative of a J. D., it clearly emphasises the distinction between the two. Section 52 deals with a decree passed against the legal representative of a deceased person who was primarily liable. Here the legal representative becomes the J. D., because the decree was actually passed against him. So he is described as J. D., in Sub-section (2), In Section 50(2) the legal representative of a deceased J. D., is described as legal representative & not as J. D.

4. The word 'J. D.' is used very frequently in the Code. In certain rules such as 30, 31, 33, 87, 48 etc. of Order 21 it cannot possibly include legal representative of a J. D. Under Rule 30, a decree can be executed by arrest of the J. D., or by the attachment & sale of his property; since a legal representative cannot be arrested & since all his property is not liable to attachment & sale it necessarily follows that 'J. D.' within the meaning of the rule does not include a J. D's, legal representative. Section 33 refers to execution of a decree for restitution of conjugal rights against a J. D. Rule 48 refers to attachment of the salary & allowances of a J. D. who is a public officer or servant. In the case of a legal representative of a J. D. there cannot possibly arise any question of attachment of his salary or allowances. It may be thought that 'judgment-debtor' within the meaning of Rule 98 includes his legal representative, but Kulsoomunnisa v. Raghubar Dayal 1939 A. L. J. 1160, is definitely against the view.

5. At the same time there are rules which seem to use the word 'J. D.' to include a legal representative of the J. D.; for instance, Rules 2, 26, 42, 43, 46, 54, 60, 61, 66, 68, 79, etc. Some of these rules require some act to be compulsorily done by the Court in relation to the J. D.; as the act must be done, it must be done in relation to his legal representative when he is dead. In other words, the word 'judgment-debtor' must include legal representative of a 'judgment-debtor'. Rule 2 gives a valuable right to a J. D. to obtain certification of payment. If this word is not deemed to include a legal representative of a J. D., a valuable right would be lost be him & there is nothing to indicate that the Legislature intended not to give this right to him.

6. What one finds, therefore, is that though the word J. D. is so defined in the Code itself as not to include a legal representative of a J. D. it seems to include a legal representative in certain rules of Order 21. So it may include a legal representative in Rule 12 also. Whether it does include or not must be determined with regard to the law contained in the rule. The definition meaning must be given effect to unless the context in which the word is used suggests the contrary. There is nothing in the context to suggest that the word is used to include a legal representative; rather it suggests that it does not. No inventory is required when a D. H. seeks to attach movable property belonging to the J. D, & in his possession. That is because no inventory is necessary, all movable property of the J. D. being liable to attachment. It is open to the D. H. to get attached any movable property that he finds in the J. D's. possession. But all movable property of a legal representative is not liable to attachment & it is not open to a D. H. to get attached any movable property that he finds in his possession. He can get attached only that property which he has received from the deceased. So he has to give an inventory of the movables which he wants to be attached. It follows that the word 'judgment-debtor' as used in the rule cannot include a legal representative of a J. D.

7. It was contended on behalf of the D. Hs. that when the names of the legal representatives were brought on the record in place of Mir Muzaffar Husain as the result of the first application, they became J. Ds. When a plff. or an appellant or an applicant dies & his legal representative is brought on record he becomes the plff. or the appellant or the applicant. The same is the case with a defendant, respondent or opposite party. So it was argued that when a J. D., dies & his legal representative is brought on record he also becomes a J. D. There is a fallacy in this argument inasmuch as not only is ' judgment-debtor' (& also 'decree-holder') defined in the Code but also ''judgment debtor' & 'decree-holder' are terms denoting rights & liabilities whereas 'plaintiff', 'appellant', ''applicant', ''defendant', 'respondent', & 'opposite party' are terms which do not denote rights & liabilities bat only denote the position in the title of the case. If a person is arrayed on one side in the title, he is called a plff. appellant or applicant & if he is arrayed on the other side he is called a deft., respondent or opposite party. A person may have absolutely no right or liability & he may have been impleaded only as a matter of formality; if he is arrayed on one side he would still be called a pltff. whereas if he is arrayed on the other side he would be called a deft. A judgment-debtor has nothing to do with the side in which he is arrayed ; he may be on either side. The learned Dist. J., was, therefore, right in his view that a J. D. within the meaning of Rule 12 does not include a legal representative of a J. D. but means the person against whom actually the decree is passed. Mir Muzzaffar Husain was the J. D. within the meaning of the rule. An inventory of the property sought to be attached from the possession of his legal representatives is necessary the provision of the rule being mandatory.

8. There is very little doubt about the effect of non-compliance with Rule 12. Mangal Sen v. Baldeo Prasad, 1892 A. W. N. 70, is one of the oldest cases in which the absence of an inventory of the property to be attached was held to invalidate the application for execution & to prevent the period of limitation being computed from the date of the order passed on it. Abdul Rafi Khan v. Maula Bakhsh, 37 ALL. 527, is another authority for the proposition that an application which is not accompanied by an inventory is not an application in accordance with law. In Sakkargauda v. Bhimappa A. I. R. (18) 1931 Bom. 128, no description of the immovable property sought to be attached was given as required under Rule 13 and the defect was held to be so fatal that the application could not be deemed to be in accordance with law. Non-compliance with Rule 12 stands on the same footing as non-compliance with Rule 13; the difference that one rule deals with movable property & the other immovable property is no distinction in law. An application which could not be granted is not an application in accordance with law; Durga Prasad Sahu v. Mt. Powdha-ro Kuer, 10 Pat. 183. When the application under consideration could not be granted for want of the inventory it was not an application in accordance with law.

9. The second execution application cannot be treated as a step in aid of execution. In the first place it was clearly & expressly an application for execution. A step-in-aid of execution is to be distinguished from an application for execution & an application for execution cannot be treated as a step-in aid of execution. Steps-in-aid of execution are steps to be taken prior to the presentation of an application for execution. They can be taken after the moving of the application also but since they would merge in the application for execution itself it is not necessary to consider them for the purposes of Article 182, Limitation Act. Only those fate is which are to be taken prior to the presentation of an application for execution & which will advance the execution, are steps-in-aid within the meaning of the article. To treat an execution application which fails on the ground that it is not in accordance with law as a step-in aid would be to nullify the effect of the qualification that an execution application must be in accordance with law. Further a step in-aid also requires to be in accordance with law. Even if an application for attachment of movables belonging to the J. D. but in possession of some body else, not accompanied by any inventory of the movables, is treated as a step-in-aid, it is not a step-in-aid in accordance with law. If the want of an inventory would invalidate an application if treated as an application for execution it would also invalidate it if treated as a step-in-aid. By moving that application the D. Hs. did not at all advance the execution.

10. The file of the second execution application is not before me but it is stated in the judgment of the trial Court that it was consigned to the Record Room on the very day on which it was filed because the legal representatives are agriculturists. Presumably it was filed only to save limitation. There is nothing wrong in filing an application not with the idea of proceeding with the execution but with the idea of saving limitation. If it is in accordance with law it will save limitation even if it be rejected on the very day it is filed. If it is not in accordance with law, it will not save limitation at all. So I hold that the filing of the second execution application did not save limitation.

11. The third execution application which was filed in July 1938 was barred by time if it was computed from the date of the final order on the first application, i. e. from 21-12 1932. It would be in time only if the time was computed from the date of the final order on the second application, i. e. 30-7-1938. But since that application was not in accordance with law, the time could not be be computed from the date of the final order passed on it. The file of the third execution application is not before me & was not before the trial Court even & it is not known on what ground it was consigned to the Record Room in February 1939. But since it was consigned & not 'dismissed' it can be presumed that it was not dismissed on the ground that the second application was invalid & did not save time. But this presumption would not be sufficient to bring into operation constructive res judicata against the legal representatives. If they had not filed an objection to the third application (on the ground that it was barred by time), they would be precluded by constructive res judicata from raising that objection now. So the question is whether they did raise the objection when the third application was pending and if so what order was passed on it. There is no evidence, direct or presumptive, about these matters. Merely because the application was 'consigned' to the Record Room it cannot be presumed that the legal representatives had not raised the objection or that it was dismissed. It is quite likely that they had raised the objection & that the D. Hs. got the application consigned to the Board Room without giving the Court an opportunity of adjudicating upon the objection. In that event the bar of constructive res judicata would not apply. It was for the D. Hs. to establish that it did apply & as they have failed to establish it, the legal representatives cannot be said to be barred from raising the objection.

12. When the third application was barred by time, the fourth application was also barred by time. It would have been within time only if the time had been computed from the date of the final order on the third application. For this it was necessary that the third application was in accordance with law. As it was not, the fourth application is barred by time.

13. The fourth application was for attachment & sale of house. The boundaries of the house were given in it. Mir Muzzaffar Husain had half share in the house & only that share was liable to attachment. After the award decree the D. Hs. applied on 12-7-1943 for an amendment of the application by claiming attachment & sale of half the share. Whether the whole house is to be attached or a share in it, the boundaries of the whole house had to be given. There can be nothing like boundaries of a share. So there was no defect in the fourth application on the ground that the boundaries were not correctly specified.

14. Under the amendment application of 12-7-1943, the D. H. brought on record two more legal representatives. They have not filed any objection against their being brought on record but an objection was filed by the original legal representatives. As the original application itself was barred by time, the amendment application was also barred by time & it is unnecessary to consider whether it became further barred by time because it brought on record two new legal representatives. Nor is it necessary to consider whether the amendment application is a fresh application or a continuation of the fourth application; in either case it would be barred by time. The legal representatives filed objection to the fourth execution application & again to the amendment application. The trial Court disposed of the two objections separately through two miscellaneous cases. There were two appeals to the learned Dist. J. & hence there are two appeals before me. This appeal is from the order passed on the objection to the fourth execution application. The other appeal No. 57 of 1944 is from the order passed on the amendment application. It is governed by this judgment.

15. The appeal is allowed, the objections of the legal representatives to the execution application filed on 8-5-1941. are granted & the application is dismissed as barred by time. The appellants will get their costs of all Courts.


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