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Sheo Prasad Vs. Mt. Naraini Bai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1926All95; 90Ind.Cas.938
AppellantSheo Prasad
RespondentMt. Naraini Bai
Excerpt:
.....that the application failed in effect was a real defect, the prosecution of the proceedings had bona fide, and reference was made to the privy council decision in hiralal v. were it otherwise, bona fide applications for execution would fail to save limitation owing to trivial defects of form, a result which i do not think the legislature could have intended. , held that by the very statement of the decree-holder and the fact that he took no steps to make the application effective the application was clearly shown to be nominal and fictitious, and was therefore not in accordance with law. ' here again is a strong indication that the application must be made with the bona fide intention of getting execution. the decree-holder had failed to pay process-fees, and when called upon to do so..........whether, if it were to be held in the circumstances that the application was not made with any bona fide intention of proceeding to execution but merely with the intention of saving limitation, it could rightly be held to be 'an application for execution' or 'a step in aid of execution.' counsel very properly and frankly admitted that it was a very common practice for decree-holders to put in a colourable application asking for execution which they did not mean seriously to prosecute, but which they allowed to be dismissed merely with the intention of relying upon the fact that they had made such an application in order to obtain a further period of three years before execution of the decree could be held to be barred by limitation. he urged that the test of whether the application.....
Judgment:

1. Lala Sheo Prasad, appellant here, obtained a simple money decree against Isri Prasad, husband of Mt. Narainibai, respondent here, in the Court of the Munsif of East Budaun on 9th March 1916. On 12th November 1918 he applied for execution. On 23rd January 1920 this application was struck off with the consent of the decree-holder. On 4th March 1921 he applied again for execution to the Munsif of East Budaun. The relief asked for in that application was that certain property be attached and brought to sale. There was a further reference to the heirs of the deceased judgment-debtor, but it is admitted now on behalf of the respondent that there had been a previous application to bring the heirs on the record and that the reference to these heirs in the application of 4th March 1921 can have no bearing on the matter which we have to decide. This matter need not therefore be further referred to, and the application of 14th March, 1921 will be considered as being simply one for the attachment and sale of certain property. On 19th April 1921 if not before, the attention of the decree-holder was drawn to the fact that all the property, for attachment and sale of which he prayed, was outside the jurisdiction of the Munsif of East Budaun and he was ordered to explain how the Court had any power to proceed against it. Pending that explanation being received the application was to remain pending, On 29th April 1921, as no explanation had been given By the decree-holder, the application was dismissed, and on the same date he took back all the process-fees that he had deposited. A further application was filed by the decree-holder for execution on l2th January 1923. This time the property detailed was within the jurisdiction of the Munsif of East Budaun who had passed the decree. The Munsif dismissed the application holding that it was barred by limitation, limitation not being saved by the previous application of 4th March 1921, in that application was not in accordance with law, as the property was outside the jurisdiction of the Court and no application had been made, even after opportunity had been given, to transfer the decree to the Court in whose jurisdiction the property was situate. In appeal the Subordinate Judge held that the application was made to the proper Court; and concurred with the Munsif that it was not in accordance with law and therefore could not save limitation. It is not suggested that during the twelve days prior to the dismissal of the previous application on 23rd January 1920, any act was done by the decree-holder which would bring his present application of 12th January 1923 within the period of limitation. The sole question, therefore, is whether the proceedings on the application of 4th March 1921 constituted an 'application in accordance with law to the proper Court of execution, or to take some step-in-aid of execution.'

2. The memorandum of appeal to this Court contains two grounds: (1) That the application of the 4th of March 1921 was a 'step-in-aid of execution': and (2) that the application was made to a proper Court. We have noted that the Subordinate Judge held that the application was made to a proper Court and this ground was therefore superfluous. As to the second ground it may be remarked that the application is more correctly to be described as an application for execution rather than as a step-in-aid of execution. For the appellant it has again been argued hare: (1) that the application was made to a proper Court: (2) that the fact that the property specified as liable to attachment was outside the jurisdiction of the Court did not render the application one not 'in accordance with law.'

3. A third point taken that an alleged request in the application that the heirs be brought upon the record would in any case prevent the application being wholly one not in accordance with law was, as we have noted, abandoned in this Court as not being justified by the circumstances of the case. We have further pointed out that it was conceded by the lower appellate Court and we may add that it has not been disputed here that the application was made to a proper Court. There is therefore only one question remaining for determination, namely do the facts that all the property specified was outside the jurisdiction of the Court and that there was no prayer at any time before the application was struck off (though the Court allowed time for amendment) to transfer the decree for execution to the Court in whose jurisdiction the property was situated render the application of the 4th March 1921 one 'not in accordance with law.'. What is the meaning of this phrase? At an early stage of the case counsel for the appellant was asked whether, if it were to be held in the circumstances that the application was not made with any bona fide intention of proceeding to execution but merely with the intention of saving limitation, it could rightly be held to be 'an application for execution' or 'a step in aid of execution.' Counsel very properly and frankly admitted that it was a very common practice for decree-holders to put in a colourable application asking for execution which they did not mean seriously to prosecute, but which they allowed to be dismissed merely with the intention of relying upon the fact that they had made such an application in order to obtain a further period of three years before execution of the decree could be held to be barred by limitation. He urged that the test of whether the application was made in good faith with a real intention to proceed to execution was never applied. It may be true to say that this aspect of such proceedings has been to a great extent lost sight of, but it is not accurate to say that the test has never been applied.

4. On general principles it would seem clear that the legislature, 'when it used the phrases 'application for execution' and 'step-in-aid of execution,' had in mind a bona fide intention on the part of the decree-holder to proceed with his right to have execution. It does not seem possible that the legislature should have ever contemplated an indefinite period being added to the life of a decree by permitting a decree-holder to take colourable steps in a very thinly disguised pretence of a desire to obtain execution when he really did not want execution at all, but only wanted to secure a further period by limitation during which the amount of his decree might go on increasing. It would therefore, seem on the face of it a proper interpretation of the words 'for execution' and 'step-in-aid of execution' that the decree-holder must really be desiring execution and that the words cannot be read as 'an application made with the sole object of extending the period of limitation' and 'a step taken with the sole object of extending limitation.' The words 'for execution' mean 'for the purpose of obtaining execution' and the words 'step-in-aid of execution' mean 'step taken for the purpose of obtaining execution.'

5. This, which appeared upon a consideration of Article 182 to be a natural and proper interpretation, research has shown to have the support of weighty judicial authority, though the decisions would seem to have been to some extent lost sight of, or, if we may say so, misinterpreted. In Jahar v. Kamini Debi (1901) 28 Cal 238, while Prinsep and Hill, JJ., held that the application which was filed to save limitation was a good application in accordance with law, reliance was further placed on the fact that even if the alleged defect on account of which it was urged that the application failed in effect was a real defect, the prosecution of the proceedings had bona fide, and reference was made to the Privy Council decision in Hiralal v. Badri Das (1879) 2 All 792. To this Privy Council decision we shall refer later. In Gopal Chander Manna v. Gosian Das Kalay (1898) 25 Cal 594 the application was hold to be a valid application. There was no suggestion (that the applicant did not really desire to press the execution proceedings; in other words, there was no suggestion of a mere desire to save limitation.

6. Banerji, J., in his order referring the case to a Full Bench held: 'It is not every informality that would vitiate an application and take it out of that clause. Were it otherwise, bona fide applications for execution would fail to save limitation owing to trivial defects of form, a result which I do not think the Legislature could have intended.' Maclean, C.J. in delivering the judgment of a Full Bench of five Judges in which all concurred, said: I am in entire agreement with the opinion he (Banerji, J.,) has expressed upon the question of whether the application for execution of 7th July 1891 was or was not one according to law. I concur both in the reasoning and in the conclusion expressed by Banerji, J., Here we find again a clear reference to the importance to be attached to the question whether the application was a bona fide effort to proceed with execution. In Adhar Chandra Dass v. Lal Mohan Das (1897) 24 Cal 778 Banerji, J., in rejecting various cases that had been referred to as supporting the argument that the application was not in accordance with law said: 'None of those cases is in point, and I do not think we should be doing right in straining the law and in holding that an application made bona fide, with the object of obtaining satisfaction of a decree, should be held to be not in accordance with law merely because the Court in which the application was made thought fit for some reason not to allow the same.' Stress was here again laid on the aspect of bona fides. In Mangal Sen v. Baldeo Prasad (1892) AWN 70, though there was no detail of the property given in the application, the decree-holder further stated in his application that he would file a list later, but 'at present for the purposes of saving limitation this application is made owing to the defendant having become insolvent.' The application was registered but no list was filed and no further steps were taken and a month later the application was (struck off. Mahmood, J., held that by the very statement of the decree-holder and the fact that he took no steps to make the application effective the application was clearly shown to be nominal and fictitious, and was therefore not in accordance with law.

7. In Chatter v. Nawal Singh (1889) 12 All 64 the application asked for something which 'the Court was not competent to do.' Straight and Tyrrell, JJ., held that the application must be for 'something which by law the Court is competent to do' and not for 'something which either to the decree-holder's direct knowledge in fact or from his presumed knowledge of the law he must have known the Court; was incompetent to do.' Here again is a strong indication that the application must be made with the bona fide intention of getting execution. In Mahtab Kuar v. Sham Sunder Lal (1888) AWN 272. Mahmood, J., held that if ho had not been dismissing the application on another ground he would further have held that it did not amount to a step-in-aid of execution because it was not made bona fide to obtain execution. The decree-holder had failed to pay process-fees, and when called upon to do so had declared his intention of not prosecuting the application. We now come to three decisions of their Lordships of the Privy Council:

8. In Mangal Pershad Dichit v. Grija Kant Lahiri (1881) 8 Cal 51, when holding that an application was effective their Lordships of the Privy Council remarked: Nor was there any finding of either of the Courts below that the several proceedings were not bona fide for the purpose of enforcing the decree or of keeping it in force,' and they gave reasons why it could not be held that the application of the decree-holder to strike off his application could not be held to be other than bona fide. In Hira Lal v. Badri Das (1879) 2 All 792, which came before their Lordships in 1880, the decree-holder had been prosecuting execution in the Court of a Subordinate Judge who was believed by both the parties and moreover by the Subordinate Judge himself to have jurisdiction, though subsequently he was held not to have jurisdiction. Their Lordships of the Privy Council held that the principle of Section 14 of Act 14 of 1859 (now Section 14 of Act 9 of 1908) based on bona fides must be applied to Section 20 of Act 14 of 1859 (now Article 182 of Schedule 1 of Act 9 of 1908); and applying that principle, the bona fide proceedings in the wrong Court gave a new starting point of limitation. They referred to Roy Dhunput Singh Roy v. Mudhomotee Debia (1973) 11 BLR 23, and said: 'Their Lordships are of opinion that a proceeding taken bona fide and with due diligence before a Court whom the party bona fide believes, though erroneously, to have jurisdiction, specially when the Judge himself also supposes that he has jurisdiction, and deals with the case accordingly, is a proceeding to enforce the decree within the meaning of Section 20.' It should be noted that the principle was applied not merely to exclude the time mistakenly occupied, but to give a new starting point. This is clear from the passage quoted and also from the reliance placed on Roy Dhunput Singh Roy v. Mudhomotee Debia (1973) 11 BLR 23. It is also clear from the fact that an examination of the dates quoted by their Lordships shows that if merely the time mistakenly occupied was to be excluded, the latter application would still have been long after the period of limitation had expired.

9. In Roy Dhunput Singh Roy v. Mudhomotee Debia (1973) 11 BLR 23 the application failed owing to a bona fide mistake by the decree-holder as to an attachment that he thought he had made of money standing to the credit of the judgment-debtor while the attachment had in fact been made in another suit. The Privy Council held that the application having been made bona fide the period of limitation began to run from the date of the disposal of the application by the Court, In delivering their judgment at page 31 their Lordships said: 'It is said that this proceeding cannot be held to be one to keep the judgment in force, because it was a petition to obtain execution of a sum of money which it was not possible that the execution could reach and that must have been so to the knowledge of the decree-holder. It seems to their Lordships that these circumstances really affect only the bona fides of the proceeding. If their Lordships could infer from these facts that the petition was a colourable one, not really with a view to obtain the money, if they could come to that conclusion in point of fact, the proceeding would not be one contemplated by the statute; but their Lordships cannot come to that conclusion.' They therefore come to the conclusion that the proceeding although abortive, was a proceeding, within the meaning of Section 20 of Act 14 of 1859 (now Article 182 of Schedule 1 of Act 9 of 1908). The above cases suffice to show that the application of the test of bona fides to determine whether an application is really one for execution is not novel.

10. It is only necessary to note that though there are differences between the contents of Section 20 of Act XIV of 1859 and of Article 182 of Schedule 1 of the present Act IX of 1908 there is no difference that is material to the matter we are considering. The words in Section 20 were 'no process of execution;' the words in Article 182 are 'no application for execution, or to take some step-in aid of execution.' In neither section is there any specific mention of bona fides. If their Lordships held that bona fides were necessary to make 'a process for execution' effective, it follows that the same interpretation should be put on the words 'application for execution or step-in-aid of execution.' Counsel for the appellant stated that since 1871 the bona fides or mala fides of the application have been immaterial. He did not develop this proposition beyond relying on a passage that he quoted from a commentary. It is true that the author makes that statement but we have not been able to find any real support for it in the authorities quoted by him. The idea, in so far as it exists, would appear to have its origin in the decision of the Full Bench, Eshan Chunder Bose v. Prannath Nag (1874) 22 WR 512. In that case Jackson and McDonell, JJ., in their referring order wanted to maintain the incorporation of the principle of bona fides to stop a succession of colourable applications. The idea underlying both the referring judgment and that of the Full Bench was that the question was whether the later application could be refused being hold to be colourable merely because the previous application had been colourable i.e., mala fide, as indicated by the fact that the decree-holder had allowed it to go by default.

11. Clearly the Full Bench was right in holding that the later application could not be refused merely for that reason. The decree-holder was entitled to make an application and until he defaulted in prosecuting it (when it would for that reason be struck off) it could not be known whether that latest application was being made with a bona fide intention to proceed or not. The later application might well be made with a bona fide intention to proceed though the previous one was not, and the latter could not therefore be treated as mala fide merely because the earlier was. But the proceedings on the earlier application having ex hypothesi been concluded, it would be possible to determine whether the facts showed it to have been mala fide and, if it was, then, though it could not be held to show that the later application was also mala fide, it could be held not to be an application 'for execution' i.e., 'intended to obtain execution' and, therefore, ineffective to save limitation. The two aspects are quite distinct. The former was clearly before the Full Bench; the latter was not; and on the principle stated in Quinn v. Leathem (1901) AC 495 particular phrases used by Couch, C.J., should not be treated as a governing question not directly considered.

12. Jackson, J., when reluctantly concurring, remarked that inasmuch as the legislature must be supposed to have been aware of the earlier decisions incorporating the rule of bona fides into Section 20 of Act XIV of 1859 and as it, as I suppose designedly omitted to incorporate in the Act of 1871 the principle of those decisions, I think we ought now to abstain from qualifying the precise terms of the Act, 'It would seem, however, that the legislature would presumably have only legislated if it disagreed with the principle already strongly affirmed judicially. We think that it is clear from the cases later in date that we have quoted that the principle has been frequently recognized that the bona fides or mala fides of the earlier application is an important ingredient in determining whether that application is effective to save limitation for the later application; though the bona fides of the later application cannot be judged at the time that it is presented from anything that has gone before and, therefore, cannot at the time of presentation be entered into.

13. To examine now the circumstances of this case, the decree-holder had obtained a decree as long ago as March 9th 1915. He then made two applications for execution both of which he allowed to be struck off for non-prosecution (budaun pairawi). Next he made an application on November 12th 1918 which he allowed to be struck off on January 23rd 1920. His next application was on March 4th 1921 and this is the crucial application in the case. It contained a prayer that certain property be attached and brought to sale, but none of that property was within the jurisdiction of the Court passing the decree and to which application was made. This was drawn to his attention and he was given an opportunity to amend his application. All that he had to do was to apply for the transfer of the decree. This he failed to do and it was not till a period of nearly two months had elapsed that his application was struck off, and on the same day he withdrew all the process-fees that he had deposited. The property in regard to which he had applied was not situated in any other province or at any great distance; it was situated in the jurisdiction of the adjoining Munsif, i.e., in the jurisdiction of the Munsif of West Budaun, and if the decree-holder had been serious in an attempt to obtain execution there would have been no difficulty in applying for a transfer to the Munsif of West Budaun and prosecuting the execution in that Court. Further we note that when he made the present application in regard to which the question of limitation has to be considered he applied in regard to property within the jurisdiction of the Munsif of East Budaun. It would appear therefore, that there was property within that Munsif's jurisdiction. Finally we note that after his application of 4th March 1921, which was struck off on 29th April 1921 he made no further attempt to obtain execution until he filed the present application on 12th January 1923, nearly two years later. Under these circumstances it is impossible to hold that the application of 4th March 1921, was a bona fide application with the intention of obtaining execution. It was merely a colourable application intended to save limitation and with that intention only. Such applications made only with the intention of keeping the decree alive have, it may further be noted, since 1877 been dropped out of the appropriate article of the Limitation Acts.

14. We have been asked to remand the case. We see no reason to do so as we have the whole history of the case before us counsel for the appellant who has displayed great industry on behalf of his client has had more than a month since the question was raised at the first hearing before us, in which to consider this matter of the good or bad faith of the earlier application, and it is certainly no fault of his if he has been unable in the circumstances of the case to take up any other position than that decree holders habitually file colourable applications merely to save limitation and allow the debt to accumulate and the question of their bona fides is never challenged. As we have shown it cannot be challenged, at the time of presentation and if the application is not prosecuted it is struck off, but it can be and should be challenged when the application comes to be used to save limitation. Further we may note that a remand could not in any event avail the appellant for as we shall proceed to show, the appeal must fail on a second ground also. This being our view of the law and of the, facts we hold that the application of 4th March 1921 was not an application 'for execution' or 'a step-in-aid of execution' and that the application of 12th January 1923; was barred by limitation and the appeal must be dismissed.

15. As to the second point we hold that the application of 4th March 1921 was not in accordance with law in that it asks the Court to do something which it was not competent to do. On behalf of the appellant we have been referred to Ramaswami Ayyangar v. Bhagirathi Ammal (1883) 6 Mad 181, Ramanandan Chetti v. Periatambi Shervai (1883) 6 Mad 250, Rama v. Varada (1893) 16 Mad 142, Samia Pillai v. Choakalinga Chettiar (1894) 17 Mad 76, Mangal Khan v. Salim Ullah Khan (1893) 16 All 26, Aptapuddin Ahmad v. Jogendra Narain Tewari AIR 1920 Cal 172, Nathubhai Kasandas v. Pranjiwan Lalchand (1910) 34 Bom 189 and Bando Krishna Kunbargi v. Narsimha Konher Deshpande (1913) 37 Bom. In Mangal Khan v. Salim Ullah Khan (1893) 16 All 26 the applicant filed no succession certificate and it was held that did not render the application one not in accordance with law. There is nothing in that case to show that the decree-holder was given any time to file the certificate as he should have been and that he neglected to fit it. The case is clearly analogous to the case in Nathubhai Kasandas v. Pranjivan Lal Chand (1910) 34 Bom 189 quoted by the appellant but which is really against his contention. In both cases the Court was competent to order that the execution should begin on the decree-holder making good the defect within a certain time. In the present case the Court could not order execution at all; it could not do at all what it was asked to do, i.e., to attach and sell. The same remarks apply to Ramasami Ayyangar v. Bagirathi Ammal (1883) 6 Mad 181. In the case of Rama v. Varada (1893) 16 Mad 142 there was a purely formal defect and in Samia Pillai v. Chockalinga Chettiar (1894) 17 Mad 76 a bona fide mistake. In view of the rulings of this Court to which we shall next refer none of the above cages nor the case of Ramanandan Chetti v. Periatambi Shervai (1883) 6 Mad 250 which to some extent helps the appellant need be further considered. For the respondent we have been referred to Chattiar v. Nawal Singh (1889) 12 All 64; Munwar Husain v. Jani Bijai Shankar (1905) 27 all 619; Langtu Pande v. Baijnalh Saran Pande [1906] 28 All 387 and Jamilannissa, Bibi v. Mathura Prasad AIR 1921 All 208. These cases clearly establish the proposition that whereas in this case the Court could not give the relief asked for, i.e., attachment and sale of property outside its jurisdiction, the application is not in accordance with law and at any rate in this Court, must far outweigh any such slight inference as may possibly be drawn from the Madras cases quoted for the appellant. We, therefore, hold that the application was further not in accordance with law because it was made to a Court which was not competent to grant the relief asked for. The result is that the appeal is dismissed with costs.


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