1. This is a decree-holder's first appeal from an order in execution proceedings.
2. The decree-holder (who was also the auction-purchaser) had secured an order setting aside a sale on the ground that the judgment-debtor had no saleable interest in the property. The judgment-debtor secured a reversal of that order, and the decree-holder comes in appeal. The history of the case is both intricate in its facts and further involves a number of questions of law. It is, therefore, essential to state the facts at some length in order to appreciate the situation which has arisen. There have been many other proceedings since the decree-holder obtained his decree, but after a protracted hearing there is no reason to suppose that any fact material to this appeal is not now before us as a result of the contentions of counsel amplified by a perusal by the Court of the proceedings on the record.
3. In 1915 the appellant, Baldeo Prasad Shukul, obtained a decree against Sukhdeo Prasad Shukul, the respondent, on the basis of a promissory-note.
4. On 19th May 1925, the decree-holder applied for execution of this decree by the sale of two mahals Nos. 2 and 4 which he stated to belong to the judgment-debtor.
5. On 20th June 1925, these two mahals Nos. 2 and 4 were sold at auction and purchased by the decree-holder himself.
6. At some date subsequent to his purchase the decree-holder is said to have discovered that the mahals Nos. 2 and 4 did not belong to the judgment-debtor but the numbers should have been stated as Nos. 3 and 5. We have no information how this mistake, if it was a mistake, arose.
7. The decree-holder thereupon filed an application for amendment of the sale-certificate. On 18th August 1925, this application for amendment was rejected and it is now in question before us whether the rejection was proper or otherwise.
8. On 16th September 1925, the decree-holder applied under Order 21, Rule 91, alleging that the judgment-debtor had no saleable interest in the mahals Nos. 2 and 4 which had been sold and which he had purchased, and asking that the sale be set aside. 12th December 1925 was fixed for disposal of this application, and in the ordinary course on that date the merits of the application would have held to be determined under Order 21, Rule 92 but on this date the decree-holder failed to appear when the case was called on and the application was dismissed for default. But later on the same day the decree-holder appeared in Court and made an application (paper 146/C) asking for restoration of the application. Various dates were fixed and finally the matter came up for disposal on 27th March 1926.
9. The ordinary procedure would have been for the execution Court to give notice to the judgment-debtor and hear the application for restoration, to decide whether it should be restored, and if it is decided in the affirmative then to decide whether the application to set aside the sale should be finally allowed or not. When, however, the case came up for hearing on 27th March 1926, the Court under a misapprehension that notice had been duly served and that this date was fixed for final determination of the question whether the sale should be set aside or not, forthwith set the sale aside. It is not clear how the mistake arose, but it is admitted and clear beyond doubt now that this particular order was passed under a misapprehension. The situation at this time, then was that the auction sale of 20th June 1925, stood set aside.
10. On 17th June 1926, the decree-holder made a fresh application for execution this time asking to be allowed to proceed by sale of the mahals Nos. 3 and 5 (paper 154/C).
11. Eventually 8th September 1926 was fixed for the disposal of what we may for the purposes of this case call this second application for execution. On this date the judgment-debtor appeared and filed an application (paper 167/C) asking the Court to set aside its order of 27th March 1926, by which the sale of mahals Nos. 2 and 4 had been set aside, and praying further that the application for execution (semble of 17th June 1926) be dismissed.
12. On 8th January 1927, the Court heard this application of the judgment-debtor, set forth the circumstances under which a mistake had been made and set aside its order of 27th March 1926. The position now was that it remained for the Court to hear the application of 12th December 1925, asking for restoration of the application of the decree-holder under Order 21 Rule 91, of 16th September 1925, which had been dismissed for default.
13. On 29th January 1927, the Court heard the application for restoration and restored the application of the decree-holder of 16th September 1925, asking for the sale to be set aside. For some reason not before us it did not forthwith hear and decide this application of 16th September 1925. There was no decision upon it till 13th April two and half months later.
14. Meanwhile on 5th March 1927, the Court heard some argument in the course of which on behalf of the judgment-debtor it was objected that the application of 16th September 1925, was barred by limitation, and the vakil for the judgment-debtor further stated on his behalf that:
it is not true that the judgment-debtor has no interest in mahals Nos. 2 and 4.
15. In consequence no doubt of this raising of the question of limitation the decree-holder became alarmed and on 12th March 1927, he put in an application under Section 47(2), Civil P.C., asking that the execution proceedings might be converted into a suit. Whether the hoped for result of saving limitation would have followed if this application had been granted it is not necessary now to determine, but it is no doubt in that hope that the application was made.
16. On 13th April 1927, the Court proceeded to dispose of two of the decree-holder's pending applications by one order. As to the application of 16th September 1925, asking for the sale of mahals Nos. 2 and 4 to be set aside, it held that the application had not been made within one month and was therefore barred by limitation under Article 166. As to the prayer of 12th March 1927, to be allowed to convert the proceedings into a suit it held that the application should be rejected as the period within which the decree-holder could have brought a regular suit had passed.
17. I am unable to find that the prayer which the judgment-debtor had made in his application of 8th September 1926, asking for the second execution application of 17th June 1926, to be dismissed, was ever specifically dealt with by the Court, probably because if the original sale was likely to be eventually upheld by the Court, the second application for execution might possibly fall of itself.
18. Appealing from the order of 13th April 1927, the decree-holder now comes to this Court.
19. It is contended by Mr. Narbadeshwar Upadhiya, counsel for the appellant, that the application of the judgment-debtor dated 8th September 1926, asking for cancellation of the order of 27th March 1926, by which the sale was set aside, was not open to him. That application purported to be filed under Order 9, Rule 13, or in the alternative as an application asking for review under Order 47, Rule 1, or, again, asking the Court to exercise its powers under Section 151. The appellant contends that Order 9, Rule 13, has no application to execution proceedings, that any application for review was barred by, limitation, and that the circumstances were not such that the Court could be asked to exercise the inherent powers reserved to it under Section 151.
20. In view of what has transpired after the arguments of both sides were concluded, I do not think it necessary to discuss these contentions in great detail. But the conclusions at which we had arrived we had reached after hearing lengthy arguments on both sides and giving our best consideration to the questions raised. Though therefore we appreciate that our conclusions may, in view of the final decision of the case, be regarded as obiter dicta, we think it desirable to leave those conclusions on record.
21. As to the applicability of Order 9, Rule 13, to the judgment-debtor's application of 8th September 1926, I have no doubt that Section 141, Civil P.C., does not operate to make Order 9, Rule 13, applicable to execution proceedings. The matter is concluded by the decision of their Lordships of the Privy Council in Thakur Prasad v. Fakirulla  17 All. 106. It is true that in that case there was question of the applicability to execution proceedings of a different section of the Civil Procedure Code then in force relating to suits. It is true also that the decision of their Lordships as to the scope of Section 617 of Act 14 of 1882, now Section 141, may have been influenced in the particular case by the fact that both practice and the terms of the Limitation Act suggested that successive applications for execution were permissible, and that therefore Section 373 of the Act of 1882 could not be applied to execution proceedings, but the language of their Lordships was of general application, and on the principle of that case it must be accepted that none of the sections or rules of the present Code applicable to suits are made applicable to proceedings in execution by the terms of Section 141. It is manifest, however, that an application under consideration, if not possible under Order 9 Rule 13, must at least be held to be an application entertainable, in the discretion of the Court, if only under the inherent powers of the Court, for it is clear that a litigant could not be left without all remedy if an execution Court passed an order under a complete misapprehension as to what was the matter for decision before it, and it is clear further that if an execution Court had no power to set aside an order passed by it ex parte merely because the sections and rules of the Civil Procedure Code were inapplicable to execution proceedings, it would also have no power, an impossible situation, to dismiss in default of appearance.
22. Before, however, considering inherent powers of the Court at all I turn to the next contention of the appellant that the judgment-debtor could not apply in review. Against this position the appellant made two attacks. Firstly, that the allegations made in the petition of the judgment-debtor did not come within the words 'for any other sufficient reason' in Order 47, Rule 1, it being contended that those words must be interpreted as meaning a reason ejusdem generis with the reasons immediately preceding. It is not necessary for us to consider this, for a perusal of the application shows clearly that the reasons given in that application are in fact ejusdem generis.
23. The second line of attack was that the application regarded as an application for review was barred by limitation, since it had not been filed within 90 days of the order passed on 27th March 1926, the period laid down by Article 173. To this Mr. Kamalakant Varma, counsel for the respondent, made two replies:
24. First, he stated confidently that in all such cases limitation could only run from the day on which it might be proved that the judgment-debtor had knowledge of the facts. Despite, however, this confident assertion he was unable to give us any authority of any sort for departing from the plain language of Col. 3, Article 173. The language is there and we are bound by it. But it may be permissible to note that the Article is not as unreasonable as at first sight it might seem. It would be open to a judgment-debtor in such a case to apply under Section 5, Limitation Act, for an extension of the period of limitation, if in fact he could prove that he had no knowledge.
25. Next it was urged by counsel for the respondent that this plea of limitation has not been taken in the memorandum of appeal, and that we ought not to allow it to be taken now seeing that it was not taken even in the trial Court.
26. To this counsel for the appellant has two replies. He has contended first that Section 3, Limitation Act, not only binds the trial Court itself to consider suo motu whether an application is barred by limitation, but that it is also incumbent on the appellate Court to consider suo motu whether the application was barred by limitation. Counsel asserted that this position was beyond dispute. He was not, however, able to quote any authority of this Court in which the question had been considered. Eventually he referred us to Bechi v. Ehsanullah  12 All. 461, a Full Bench decision. But it is clear that the real question there was not concerned with the position now taken before us, and that Section 4, corresponding to the present Section 3, was only incidentally referred to. Counsel for the respondent was not prepared to contest the position asserted by counsel for the appellant. We, however, were unable to accept the view. It appeared to us manifest that all that the section lays down is that the trial Court must suo motu consider whether the suit has been filed within time, that an appellate Court must suo motu consider whether the appeal has been filed within time, and that a Court originally hearing an application must suo motu consider whether the application is filed within time. There is nothing whatever in the section to justify any other interpretation. Counsel for the appellant was forced to concede that if the view he desired us to take was correct, it would be possible for a litigant, knowing that the suit filed against him was barred by limitation, to fight it and lose it all the way up to the Privy Council and then to say to their Lordships of the Privy Council:
I knew the suit was barred by limitation, but I preferred if I could, to suit the purposes of other litigation, to get a decision on the merits. I do not wish to risk a final decision on the merits against me and so now I draw the attention of the Court to the fact that the suit was barred by limitation. Although I have not even now taken it in my grounds of appeal, your Lordships must take cognizance of it suo motu and dismiss the suit.
27. I need only draw attention to the fact that the words in Section 3 'shall be dismissed' are wholly inapplicable to the actual present case of the appellant. If we were bound suo motu to take cognizance of the fact that the application was barred by limitation, though no objection was taken in the trial Court and though no objection finds place in the present memorandum of appeal, we would, such is the contention of the appellant, have to allow the 'appeal.' The section only provides for an appeal being 'dismissed,' and clearly refers only to an appeal being dismissed which was filed after the period of limitation had expired. However, I need not labour the point further for, though counsel for the appellant did not refer to the case, and counsel for the respondent did not meet the appellant's point by quoting the case, the matter has been set at rest by the decision of the Full Bench in Ahmad Ali v. Waris Husain  15 All. 123. The case is quoted in the forefront of the notes on Section 3 in Rivaz on Limitation, and it is difficult to understand why it was not brought to our notice by either counsel.
28. Counsel for the appellant knew that he was going to urge the plea of limitation and it was his duty to be prepared with the law on the point and not to urge a view of the law in direct conflict with the decision of a Full Bench the existence of which a few minutes research would have brought to his knowledge. As to the other side, it is true that the point was not taken in the grounds of appeal but counsel for the respondent had known for two days that the point was now being taken and might possibly succeed.
29. In this connexion our attention was drawn at a late stage of the case by counsel for the appellant to the decision of their Lordships of the Privy Council in Ghulam Khan v. Muhammad Hassan  29 Cal 167. It was suggested, on the strength of the passage to be found at the bottom of p, 185, that their Lordships had held that an appellate Court was bound by the terms of the Lim. Act to take note of the fact that the application in the lower Court was barred by limitation. It is manifest that nothing of the sort was held. Their Lordships were giving certain reasons why the lower Court should not have entertained the application, and they merely held that among other reasons for rejecting was the reason that the matter was concluded by the Lim. Act.
30. It is clear, therefore, that an appellate Court is not bound to take notice suo motu of the fact that the application was barred by limitation.
31. The question of limitation, then, becomes nothing more nor less than a point of law like any other point of law which might be taken in appeal and which, if not taken in the memorandum of appeal, could only be argued with the permission of the Court Appellant's counsel then fell back on his last position and urged that leave should be granted to take the point. Here I think he would have been on much firmer ground. We must consider the circumstances when exercising our discretion. It is noticeable that the judgment-debtor in drafting his application of 8th September 1926, manifestly felt himself to be on very insecure ground. He found it necessary to call in aid every conceivable section which he might hope would be applicable: Order 9, Rule 13; Order 47, Rule 1, and such inherent powers as the Court may have and which are saved, not granted, by Section 151. Next it is clear that the judgment-debtor himself carefully refrained from saying anything throughout the whole of his lengthy application which might draw the attention of the Court or the decree-holder to the fact that his application was barred by limitation. It is true that he said that he had no knowledge of the proceedings which led up to the order of 27th March 1926, setting aside the sale, but he could not of course avoid saying thus much. He, however, carefully refrained from any suggestion that his application was barred by limitation, and that he desired an extension of the period under Section 5.
32. It is contended for the respondent that it was the duty of the decree-holder to challenge the validity of the judgment-debtor's application, and that if he had so challenged it, he, the judgment-debtor, would have made a definite application for extension of time; and it is urged that even now, if the appeal is to be allowed, we should treat his very prudently worded application as virtually an application asking for an extension of the period. The plea is wholly untenable. In the first place, as I have already noted, the judgment-debtor carefully evaded raising the question of limitation.
33. In the second place, it was manifestly the judgment-debtor's duty and the duty of his legal adviser, to bring all the facts to the attention of the Court. It was he who was asking primarily for the Court's assistance, and he was wholly unjustified in adopting a course based on the hope that the fact that the application was barred by limitation would pass unnoticed. It was their manifest and bounden duty to consider whether the application was barred by limitation and if it was so barred, as it plainly was, to bring that fact to the attention of the Court by an application for extension of time.
34. Thirdly, I note that the application as drafted does not even contain any allegation that the judgment-debtor had any interest in the mahals Nos. 2 and 4, of which the decree-holder says he obtained a sale by mistake. It is true that when he was driven to do so by a question from the Court, the judgment-debtor's vakil on 5th March 1927, made the statement that it was not true that the judgment-debtor had no interest in mahals Nos. 2 and 4. Even then the judgment-debtor was not prepared to say:
I have in truth such and such a specified interest in mahals Nos. 2 and.
35. Fourthly, another curious fact has come to light, not through the assistance of counsel on either side but upon inquiry by the Court. Counsel on both sides had to admit that it is the usual practice for an officer of the Court to note whether an application is being made within the period of limitation, and this note is made for the information of the Court. On other applications we find such a note, but in the case of this application mysteriously enough there is no note of any sort, and I cannot but feel that there is some justification for the suspicion, reading this fact in the light of the other circumstances I have noted, that this particular application was somehow smuggled through to the stage of its being laid before the Court for disposal without any note being made as to the period of limitation, in order particularly to evade raising the question. I think, therefore, that there would have been ample ground for allowing the objection to be taken, for refusing to accept the application as in effect asking for an extension of time, and for refusing to hinder the course of justice any further than we are compelled, by now allowing the judgment-debtor to contest the question whether he had real grounds for asking for an extension of time if he had asked at the proper time.
36. The application of 8th September 1926, regarding as an application under Order 47, Rule 1, was therefore in our view, barred by time and there were no sufficient grounds for permitting the judgment-debtor to invoke the inherent powers of the Court.
37. So far, then, as the decision of this appeal would have been based on the contentions of Mr. Narbadeshwar Upadhya, for the appellant, and Mr. Kamalakant Verma, for the respondent, we would have allowed this appeal and set aside the order of 13th April 1927, on the first ground taken by the appellant that the application of 8th September 1926 was barred by limitation, thereby restoring the order of 27th March 1926, by which the sale of mahals Nos. 2 and 4 was set aside. A reference to the chronological history of these proceedings at the commencement of this judgment will show that one of the reliefs asked by the judgment-debtors in his application of 8th September 1926, was that the application for execution (that is, the second application for execution dated 17th June 1926) be dismissed. This relief does not appear to have been dealt with in either of the three orders of the Court dated 8th January 1927, 29th January 1927, or 13th April 1927, all three of which orders were consequent on the application of the judgment-debtor of 8th September 1926. The result would be that second application for execution directed against the mahals Nos. 3 and 5 of date 17th June 1926, would remain undisposed of and could have been dealt with by the trial Court on its merits, and so justice, as we see it in this case, has been done.
38. While, however, judgment was being delivered it occurred to us that this appeal had been directed against the wrong order. The order of 27th March 1926, had been set aside by the order of 8th January 1927, and that later order has been allowed to become final. The order of 13th April 1927, against which this appeal has been filed, had in fact nothing to do with the order of 27th March 1926, or the application of 8th September 1926. It deals only with the two applications of 16th September 1925, and 12th March 1927, and rejects them both. When counsel for the appellant opened the case he made no reference whatever to the order of 8th January 1927, and counsel for the respondent, who could have founded an instant and complete answer to this appeal on the existence of that order, did not draw it to our attention. It was only mentioned to us incidentally during the second day's hearing of the case by counsel for the appellant.
39. There is no reason to suppose that when counsel filed the appeal he knew of that order, but he should have known of it for to counsel preparing the case with a view to the appeal it must have been manifest that there was a serious hiatus between the application of 8th September 1926, and the order of 13th April 1927, and when he did become aware of it he must have realized that there was at least something very wrong with his appeal.
40. Moreover he must have realized that he had obtained admission of his appeal on what was essentially a misstatement of fact. He had taken as his first ground that the matter was concluded by 'res judicata,' manifestly meaning that the order of 27th March 1926, had not been disturbed and bound the respondent. The instant he realized that the admission of the appeal had been induced by a misstatement, however bona fide, to the Court, it was his absolute duty to bring the order of 8th January 1927, to the attention of the Court, not merely casually leaving the Court to find out for itself the significance of that order, but with an expression of regret for the misstatement and, if he considered proper, a request to be allowed to amend his memorandum. Neither counsel had read to us the order of 13th April 1927, and we were allowed to assume from the statement of counsel for the appellant and from the silence of counsel for the respondent that the order filed and appealed from dealt with the matter which counsel for the appellant was arguing. The unfortunate result of neither counsel, whose duty it was at least to be aware of the facts of the case, drawing our attention to this point is that nearly two days hearing of the case was entirely wasted so far as the addresses of counsel on either side are concerned, On being questioned on this point, that he had directed his appeal against the wrong order, counsel for the appellant had nothing to urge.
41. Judgment having been delivered thus far a further hearing of the case became necessary. Counsel for the appellant admitted that there was nothing further to be said and that his lengthy plea of limitation directed against the application of the judgment-debtor of 8th September 1926, was untenable unless the Court was prepared to exercise its inherent powers reserved to it by Section 151. He was, however, unable to suggest any reason for our exercising those powers. He urged that he had no right of appeal against the order of 8th January 1927, by which the order of 27th March 1926, had been set aside. But he admitted that the very arguments he has raised here could have been raised in revision. He could give no explanation as to why his client had rested with the order of 8th January 1927, standing against him. We therefore see no justification now for exercising our inherent powers.
42. We then heard counsel for the appellant on the second point which he desired to raise before us and with which the judgment of 13th April 1927, appealed against does deal, that the execution Court should not have refused his prayer to be allowed to convert the proceedings in execution of 16th September 1925, into a regular suit. He was, however, compelled to admit that the only reason for the filing of his application of 12th March 1927, to be allowed to convert the proceedings into a regular suit was that he had realized, upon the filing of the judgment-debtor's application of 8th September 1926, in which the objection was taken, that his application of 16th September 1925, under Order 21, Rule 91 was hopelessly barred by limitation, and that he hoped by converting the proceedings into a regular suit that he might be able to meet the objection of limitation. We did not consider that reason was, in the absence at any rate of any explation whatever of the delay in filing the application of 16th September 1925, a sufficient reason for allowing it to be converted into a suit, and on this point we did not call on the counsel for the appellant.
43. In this connexion one final point calls for notice illustrating the carelessness on all sides which has pervaded these proceedings from beginning to end, as a result of which a perfectly simple proceeding has become more and more tangled and a wholly disproportionate amount of private and public money been wasted. The point was noticed by my learned brother and not brought to our notice by either counsel. The single judgment of 13th April 1927, actually appealed against dealt with two matters arising out of separate applications made by the decree-holder. In that judgment the prayer of the decree-holder to be allowed to convert the execution proceeding into a suit was dealt with at length and dismissed; the application to set the sale aside was dealt with in five lines and dismissed. The formal order drawn up never even mentions the former application. What effect, if any, this careless omission might have had it is unnecessary to consider for nobody drew it to our attention.
44. The amount of time occupied by the hearing and the length of this judgment are the unfortunate consequences of the way in which the case has been contested.
45. The result is that this appeal must be dismissed with the consequence that the decree-holder, partly owing to his own negligence and partly owing to the advice which he has received, is left without any remedy, unless he can obtain anything from his purchase at the auction of 20th June 1925.
46. I concur in dismissing this appeal, and particularly in the comments on the way in which it has been conducted.
47. The appellant is a decree-holder. Two mahals which did not belong to the judgment-debtor were sold in execution of the decree and bought by the decree-holder. The date of the sale was 20th June 1925, and the appellant applied for the sale to be set aside on 16th September 1925. Eventually this application was dismissed on 13th April 1927 as timebarred under Article 166, Lim. Act, which requires such an application to be made within one month of the sale. The appellant appeals against this order.
48. By a succession of errors the lower Court did set aside the sale on 27th March 1926, but itself cancelled this order on 8th January 1927. This series of errors is deplorable but immaterial as the appellant has omitted to appeal against the order of 8th January 1927. He, however, now asks us to use our inherent power and set it aside. In view of the fact that the original application to set aside the sale was timebarred we cannot by the use of our inherent power give the appellant a relief to which he is not entitled.
49. The appellant's application to convert the proceedings into a regular suit is also barred by Order 21, R, 92(3).
50. The order of the Court is that the appeal is dismissed with costs.