Skip to content


Ramnarayan Dhan Singh Vs. Anandilal Ratanlal Mahajan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtMadhya Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 16 of 1962
Judge
Reported inAIR1970MP110; 1970MPLJ90
ActsLimitation Act, 1963 - Sections 15
AppellantRamnarayan Dhan Singh
RespondentAnandilal Ratanlal Mahajan and ors.
Appellant AdvocateK.A. Chitaley, Adv.
Respondent AdvocateS.D. Sanghi and ;V.S. Pandit, Advs. for Respondent Nos. 1 and 2
DispositionAppeal allowed
Cases ReferredSreenath Roy v. Radhanath Mookerjee
Excerpt:
- - the division bench answered the question in the affirmative, holding that section 15 of the limitation act is perfectly general and the provisions contained therein can be invoked in computing the period of limitation prescribed by section 48 of the code of civil procedure. it is submitted that in view of the decision of the privy council in kirtyanand singh's case, air 1933 pc 52 and the other cases referred to already, these decisions are not good law. abdul khadar, air 1933 mad 418. we propose to examine these decisions as well. ' since this decision has been relied on air 1955 andhra 229, where the question arose in connection with order 21, rule 53, civil procedure code it may as well be thought that the question in the madras case also arose in connection with order 21, rule.....shiv dayal, j. 1. this letters patent appeal from the judgment of newaskar, j., in miscellaneous appeal no. 76 of 1959, was referred to the full bench by a division bench consisting of dixit, c. j. and tare, j. the question which arises in this appeal is whether an order staying a process in an execution proceeding, or a 'partial stay', as it has been sometimes called, is within section 15 of the limitation act and excludes the period during which it was in force. that question arose in the following circumstances, which have been stated to us by the learned counsel as undisputed. 2. on june 14, 1927, a money decree was passed in civil suit no. 62 of samvat 1983 in the court of the district judge, ujjain, (in the erstwhile gwalior state), in favour of the predecessors-in-title of.....
Judgment:

Shiv Dayal, J.

1. This Letters Patent Appeal from the judgment of Newaskar, J., in Miscellaneous Appeal No. 76 of 1959, was referred to the Full Bench by a Division Bench consisting of Dixit, C. J. and Tare, J. The question which arises in this appeal is whether an order staying a process in an execution proceeding, or a 'partial stay', as it has been sometimes called, is within Section 15 of the Limitation Act and excludes the period during which it was in force. That question arose in the following circumstances, which have been stated to us by the learned counsel as undisputed.

2. On June 14, 1927, a money decree was passed in Civil Suit No. 62 of Samvat 1983 in the Court of the District Judge, Ujjain, (in the erstwhile Gwalior State), in favour of the predecessors-in-title of Kamnarayan appellant, who is now the decree-holder, against the predecessors-in-title of Chunnilal and Anandilal (respondents 3 and 4), now the judgment-debtors. Aggrieved by that decree, an, appeal was preferred to the Gwalior State High Court. During the pendency of the appeal, and in connection with stay of execution, Ratanlal, father of Anandilal and Jankilal (respondents 1 and 2) stood surety for the performance of the decree. On April 5, 1938, the appeal was dismissed by the Gwalior State High Court. Against the appellate judgment and decree, a revision was filed in the Judicial Committee of the Gwalior State (Revision No. 8 of Samvat 1995) under the laws of that State. The revision was dismissed on February 11, 1941. It is that decree of the Judicial Committee which is under execution.

3. The decree passed by the High Court was put in execution on February 23, 1939, (Execution Case No. 41 of Sam-vat 1995) against the judgment-debtors and the surety. Certain objections were raised by the surety which were overruled by order dated December 9, 1939. From that order an appeal was preferred to the Gwalior State High Court (Appeal No. 9 of Samvat 1996), which was dismissed on July 22, 1940. Aggrieved by it, the surety preferred an appeal to the Judicial Committee of the Gwalior State (Civil Miscellaneous Appeal No. 1 of Samvat 1997).

4. On January 23, 1940, while the said appeal No. 9 of Samvat 1996 had been pending in the High Court certain immoveable properties of the surety (i.e., five houses and land) situated in village Madhopura had been attached. They were to be put to sale, but by an order dated August 16, 1940, the Judicial Committe directed stay of the sale, while attachment was to continue.

'TAA HUKM SAANI QURQI QAYAM RAKHKAR NEELAM KEE MAZEED KARRAVAI MULTAVI RAKHI JAY.'

On November 24, 1944, Civil Miscellaneous Appeal No. 1 of Samvat 1997 was disposed of in consequence of which the order of stay became dissolved. Execution was then resumed; it was dismissed for default; but again restored; eventually, on January 11, 1954, the decree-holder applied to the executing Court for sale of the attached property. On January 13, 1954, the decree-holder was directed to furnish by January 21, 1954, the particulars of the property to be sold.

On January 21, 1954, the decree-holder's counsel reported no instructions. As the decree-holder himself did not appear, the execution was dismissed for default.

5. On February 18, 1954, the decree-holder made a fresh application (No. 7 of 1954) for execution. It is that application for execution from which the present appeal has arisen.

6. Ratanlal surety pleaded bar of Section 48, Code of Civil Procedure. Pending those proceedings, Ratanlal died. His sons, Anandilal and Jankilal (respondents 1 and 2) were brought on record. They pursued the objection. The decree-holder resisted it on various grounds, two of them being that he was entitled to the benefit of Section 15(1) of the Limitation Act because of the stay order passed by 'the Judicial Committee on August 16, 1940, and, secondly, under Section 48(2) of the Code of Civil Procedure because the judgment-debtor had by fraud or force prevented execution of the decree.

In his reply, he set out the facts and circumstances in detail. The learned District Judge rejected the objection. Relying on Bai Ujam v. Bai Rukmani, ILR 38 Bom. 153 = (AIR 1914 Bom. 330), he held that the benefit of Section 15(1) of the Limitation Act was available to the decree-holder. In view of that decision, he did not consider the contention that the judgment-debtor had by fraud or force prevented the execution of the decree. Anandilal and Jankilal, sons of the surety, appealed to this Court (Civil Miscellaneous Appeal No. 76 of 1959). There, it was conceded that if the order of stay dated August 16,1940, be held sufficient to attract the provisions of Section 15(1) of the Limitation Act, the present execution petition filed on February 18, 1954, would not be barred by time. Relying on certain decisions, the learned single Judge held that benefit of Section 15(1) of the Limitation Act could not be given because there was no total stay of execution. The appeal was allowed and the application was held barred by time. The decree-holder's plea for exclusion of time under Section 48(2) of the Code of Civil Procedure was again not considered. Aggrieved by that order, this Letters Patent Appeal was preferred by the decree-holder.

7. It is not disputed before us that the period of 12 years, within the meaning of Section 48 of the Code of Civil Procedure is to be computed from February 14, 1941. The present application for execution was made on February 18, 1954, that is, one year and four days beyond 12 years.

8. It is urged by Shri Chitale, learned counsel for the appellant, that the period from August 16, 1940, to November 24, 1944, when the order staying the sale remained in force, must be excluded. The argument is that the language of Section 15 of the Limitation Act is not restricted in its application to a case where there was total stay. Learned counsel relied on Ghulam Nasir-Ud-Din v. Hardeo Prasad, (1912) ILR 34 All. 436; P. V. Ittey v. Mani, AIR 1964 Ker 134 and Subramanian v. Venkitadri Iyer, AIR 1965 Ker. 236. It was further argued that, at any rate, benefit of Section 15(1) of the Limitation Act must be given to the decree-holder in respect of the properties which were attached and the sale of which was stayed by the order of the Judicial Committee, dated August 16, 1940, as was held in Baijnath Prosad v. Nursingdas, AIR 1958 Cal. 1, in which Parmeshwaran Nambudri v. Seshan Pat-tar, AIR 1928 Mad. 627, was relied on. On the other hand, Shri Sanghi, learned counsel for respondents 1 and 2, contended that no stay could be excluded in this case because there was total stay of the execution of the decree. The argument is that mere stay of sale of a particular property is not 'stay of execution of the decree' within the meaning of Section 15. He relied on Chanbasappa v. Holibasappa, AIR 1924 Bom. 383; Kirtyanand v. Pirthi-chand, AIR 1929 Pat 597; Kundo Mal v. Firm Daulat Ram, AIR 1940 Lah 75; Virchand v. Marualappa, AIR 1944 Bom 303; Soorayya v. Mallayya, AIR 1955 Andhra 229 and Union of India v. Moti Ram, AIR 1959 Punj. 613.

9. It is true that the stay order did not employ any general expression, such as, 'execution of the decree is stayed'. The order was a limited and specific one, merely directing stay of sale of the attached property of the surety; attachment was to subsist.

10. Before we consider the question in controversy, let it be stated that in this case execution of the decree did not totally stop consequent upon the stay order dated August 16, 1940. The decree-holder did proceed against another property of the surety and also against some property of the judgment-debtor, although the proceedings were abortive. On December 5, 1940, the decree-holder made an application in the executing Court for attachment of certain debts amounting to about Rs. 4000/-, which were due to the surety from third parties. On December 6, 1940, attachment of the debts as prayed for was ordered and notices were issued accordingly to the surety and the judgment-debtor. It appears that certain objections were raised and they were dealt with, but the fact remains that nothing was recovered. So also, on December 9, 1940, the decree-holder applied for attachment of move-able and immoveable property of the principal judgment-debtor.

On December 11, 1940, the executing Court ordered a warrant of attachment of the judgment-debtor's property to be issued. It appears that in execution of this warrant some moveables belonging to the surety were attached by the Nazir. The surety raised an objection whereupon they were released by order dated July 17, 1941. It does not appear that in those proceedings also anything was recovered. Shri Sanghi, even after going through the entire record, could not point out that anything was done after the last mentioned date. The parties did not, nor do we, consider It necessary to enter details of what happened in those two proceedings. The object with which we have mentioned about those two proceedings initiated by the decree-holder (on his application dated December 5, 1940, against the surety, and that dated December 9, 1940, against the principal judgment-debtors) is to remember that the decree-holder did proceed with the execution of the decree in a manner which was not prohibited by the stay order dated August 16, 1940. We have already stated that that stay order ceased to operate on November 24, 1949. We shall consider the effect of the decree-holder having taken steps in execution during that period.

11. On going through the decisions referred to above, we find that three divergent views have been taken in them. One view is that Section 15 of the Limitation Act comes into play only when there has been absolute stay, by operation of which the execution of the decree could not proceed at all, by any means. The second view is that even in cases of partial stay, in the sense that execution was stayed against any particular property or against any particular judgment-debtor the decree-holder can avail himself of exclusion of time under Section 15 of the Limitation Act. The third view is that where a proceeding in execution is stayed only so far as a particular property is concerned, benefit of Section 15 will be available if execution of the decree is sought against the same property but not where another property is sought to be sold.

12. We shall first consider the decision in Sitaram v. Chunnilalsa, AIR 1944 Nag 155, cited by the Division Bench in the order of reference. In that case, the real question was whether Section 48 of the Code of Civil Procedure was controlled by Section 15 of the Limitation Act, so that the provisions of the latter could be invoked in computing the period prescribed by Section 48 of the Code. The Division Bench answered the question in the affirmative, holding that Section 15 of the Limitation Act is perfectly general and the provisions contained therein can be invoked in computing the period of limitation prescribed by Section 48 of the Code of Civil Procedure. The decision of the Privy Council in Phoolbas Koonwur v. Lalla Jogeshur Sahoy, (1876) 3 Ind App 7, was relied on. That question has not been agitated before us.

The Division Bench gave benefit of Section 15 to the decree-holder and the appeal of the judgment-debtors was dismissed. One of the contentions raised before the Division Bench was that there was no order for stay of execution of the decree; that even if there was such stay of execution, it would only operate in respect of the money recoverable under the decree as against Ramlal but it would not operate as against other judgment-debtors or in respect of claim for possession. This objection was rejected with these observations:--

'A perusal of the order sheets in the case will make it clear that the execution of the decree was stayed. It was not restricted as regards the judgment-debtor Ramlal or in respect of money recoverable under the decree.'

The Division Bench nowhere held that if stay was restricted as regards one judgment-debtor or in respect of any specified property, benefit of Section 15 was not available. The decision in Sita-ram's case, AIR 1944 Nag 155 (supra), therefore, cannot be read as lending support to the first of the three views we have enumerated.

13. Shri Sanghi strenuously argued that the expression 'execution of which has been stayed' (and 'which' here refers to 'a decree') connotes that unless execution is totally stayed in the sense that the Court is prohibited to execute the decree at all, benefit of Section 15 will not be available. The argument is that where merely sale of a particular property is stayed, it is open to the decree-holder to find other properties of the judgment-debtor and proceed with the execution.

14. In Kirtyanand v. Pirthichand, AIR 1929 Pat 597, relied on by Shri Sanghi, the question was different. In that case, the decree had been executed not less than six times before the execution proceeding which reached the High Court. It was a compromise decree and the right to execute it accrued on April 1, 1915, under the terms of the compromise. An application for execution was made on July 13, 1927, which was beyond 12 years, Benefit of Section 48(2) of the Code of Civil Procedure and also of Section 15 of the Limitation Act was sought by the decree-holder on the ground that in another suit the property of the surety against whom execution of the decree was sought, had been entrusted to a receiver and the decree-holders were directed to wait for payment. Both the contentions were rejected by the Patna High Court. The matter went to the Privy Council and the decision is reported in Kirtyanand Singh v. Pirthichand, AIR 1933 PC 52, where it was held that where a receiver appointed in a different suit has been directed to make payments in discharge of the decree sought to be executed, the provisions of Section 48(1)(b), Civil Procedure Code, do not apply. It was further held that a statement in an order, in that different suit that the decree-holders of the decree sought to be executed must wait for payment was not an injunction or order staying execution of the decree within Section 15 of the Limitation Act. Therefore, that case is of no help here. Shri Sanghi conceded this position.

15. Reference may also be made to Chitaley's Commentary on the Limitation Act (3rd Edition) at page 528, under the heading 'Partial Stay of Execution', where it is remarked thus:--

'It has, however, been held in some cases ILR 38 Bom 153 = (AIR 1914 Bom 303); Nachiappa v. Basiruddin Mandal, AIR 1918 Upp Bur 4 at p. 5; Boyinda Nath Choudhury v. Basiruddin Mandal, AIR 1921 Cal 606 and (1912) ILR 34 All 436, that a stay of execution of a part of the decree or as against a particular property will nevertheless avail to save limitation for the execution of the decree as a whole. The reasoning advanced for this view is that this section does not say that the execution must have been wholly stayed and that it is not justifiable to read into the section more than what It actually says. It is submitted that in view of the decision of the Privy Council in Kirtyanand Singh's case, AIR 1933 PC 52 and the other cases referred to already, these decisions are not good law.'

We have just now seen that in Kirtyanand case, AIR 1933 PC 32 (supra) the Privy Council did not decide this point. (See also observations in AIR 1944 Bom 303 at p. 305).

16. We would next refer to the decision in AIR 1940 Lah 75, a Single Bench decision of the Lahore High Court. This decision was relied on by a Division Bench of the Bombay High Court. In the Lahore Case, in execution of a decree, a house situated in 'Mohalla Rupa Mistri' was sought to be sold on June 12, 1925, but the 'execution proceedings were stayed', while the application which went for consideration before the High Court, related to a house situated in 'Lakar Bazar'. It was observed that the execution of the decree had never been stayed by any order of injunction. Then it was said that it was open to the decree-holders, after order was passed, to have the other properties of the judgment-debtors, both moveable and immoveable, attached and also to have taken action for their arrest. Exclusion of time under Section 15 of the Limitation Act was refused. The learned Judge, who decided that case, referred to the following decisions: Ram Bharosay v. Sohan Lal, AIR 1924 All 707; AIR 1924 Bom 383; the Patna High Court AIR 1929 Pat 597 and the Privy Council decision AIR 1933 PC 52 (supra) and Tripura Sundaram v. Abdul Khadar, AIR 1933 Mad 418. We propose to examine these decisions as well.

17. In AIR 1924 All 707 (supra), Daniels, J., after stating the facts of the case, held that in that case there was no injunction and no order staying execution, still he held that although the decree-holders might have been debarred from one particular mode of execution, it was still open to them to execute their decree in any other way and, therefore, Section 15 of the Limitation Act did not apply.

18. In AIR 1924 Bom 383 (supra), a decree was passed in favour of Basappa Murgeppa against Chanbasappa and another. It was a money decree. It was attached by a creditor of Murgeppa, who had obtained a decree against Basappa. It was held that on the application of the creditor Murgeppa, who had attached the decree of his judgment-debtor; Basappa, that Court was bound to proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed. Thus, there was no stay of execution of the decree. Section 15 of the Limitation Act, therefore, did not apply. It was held that neither the holder of the decree sought to be executed, nor the judgment-debtor was prevented from seeking to execute the original decree. No doubt, it was also observed:--

'But we think that Section 15 only applies to an absolute stay, and not to a limited stay as would be ordered by the notice under Order 21, Rule 53(1) (b)'.

For these observations, no reasons were given in the judgment.

19. AIR 1933 Mad 418 (supra) was decided by a Full Bench. In that case, the mortgagee decree-holder applied to sell the mortgage security. He cited a previous application dated October 2, 1922, and claimed to be in time because he was restrained by an injunction from executing the mortgage decree and that injunction was dissolved on August 16, 1927, The executing Court dismissed the application as barred by time. Before the High Court, the appellant no longer maintained that there was an application as originally stated, but it was argued that there was a decree, which in its effect was tantamount to an injunction and which, therefore, attracted the provisions of Section 15 of the Limitation Act. It was found that 8 months after the appellant obtained her decree, certain worshippers, impleading both the mortgagor and the mortgagee, got it declared that the security of the mortgage was a religious endowment and not the property of the mortgagor. It was that decree which the appellant asked the High Court to treat as an order staying the execution of her prior decree until it was set aside on appeal by the High Court on August 16, 1927. It was held that the appellant was not restrained or prevented from executing her decree and if she had applied for execution, the Court could not have refused it. The High Court refused to read the word 'stayed' as 'inconvenienced'.

20. Then there is a decision in Raju v. Ayyaparaju, AIR 1935 Mad 352, delivered by Beasley, C. J., on behalf of the Division Bench. The facts of that case are not stated in the judgment. That decision has been followed in AIR 1955 Andhra 229 (infra). Beasley, C. J., said:--

'In our view, the stay was a limited one. It was an order merely staying the Court. It did not put an end to the rights of either the judgment-creditor or the judgment-debtor to apply for execution which within the plain terms of the order they are entitled to do. The execution of the decree, therefore, remained stayed, for just so long as the judgment-creditor or the judgment-debtor chose not to apply for execution. As soon as either of these parties applied for execution, then the stay would be removed. It was thus within the power of the execution petitioner at any time himself to remove the stay and under these circumstances, in our view, it is impossible to say that this is a case which comes within Section 15, Limitation Act.'

Since this decision has been relied on AIR 1955 Andhra 229, where the question arose in connection with Order 21, Rule 53, Civil Procedure Code it may as well be thought that the question in the Madras Case also arose in connection with Order 21, Rule 53, Civil Procedure Code, and that is why the possibility of the judgment-debtor putting the decree into execution was also taken into account.

21. In AIR 1955 Andhra 229 (supra), the facts were that Veerina Venkatarathnam and some others had a preliminary decree, which was followed by a final decree to enforce a mortgage. As the decree-holders made default in payment of income-tax, the Income-tax Officer issued a certificate to the Collector intimating him that a certain sum was due from the decree-holders and requesting him to recover the same under the provisions of Section 46(2) of the Income-tax Act. Pursuant to this certificate, the Collector attached the decree and at the same time requested the Court to stay execution of the decree. The Collector then filed an execution petition for executing the decree. It was held that the Collector had no right to execute the decree. Then the decree-holders filed an execution petition for executing the decree. It was held by the executing Court and the first appellate Court that the application was barred by limitation as having been filed more than three years from the date of the final order. The decree-holders preferred a second appeal to the Madras High Court. The Second Appeal was dismissed, but the learned Judge declared the case fit for Letters Patent Appeal. The Letters Patent Appeal was heard by the Andhra Pradesh High Court. The question, inter alia, was whether the period during which the stay order passed by the Collector remained in force, could be excluded under Section 15 of the Limitation Act in computing the period of limitation for executing the decree.

In answering this question in the negative, reliance was placed on AIR 1935 Mad 352 (supra) and Saroj Ranjan Sinha v. Joy Durga Dassi, AIR 1934 Cal 140, which, again, was a case under Order 21, Rule 53, Civil Procedure Code. Having cited those decisions, the principle underlying Section 15 of the Limitation Act was stated thus:--

'If execution of the decree was stayed, it would be an unnecessary burden on the decree-holder and an empty formality if he should be compelled to file execution application at the risk of his decree otherwise getting barred. A decree, which has been stayed, cannot obviously be executed. So under this section, the period covered by the stay order is allowed to be excluded from the period of limitation.

That reason cannot hold good if the decree-holder, or his representative is not prevented from executing the decree. If he has a right to execute the decree and has failed to exercise that right, it can only be at his own risk.'

Then the implications of Order 21, Rule 53, Civil Procedure Code, were stated, and the appeal was dismissed.

22. In AIR 1944 Bom 303, a stay order was passed as regards a fraction of the property sought to be sold. It was held that there was nothing to show that the decree-holder could not have proceeded against the fractional share of the property which was not affected by the stay order. AIR 1940 Lah 75 (supra) was relied on. The decision in Gurudeo Narayan Sinha v. Amrit Narayan Sinha, (1906) ILR 33 Cal 689, was distinguished. The decision in ILR 38 Bom 153= (AIR 1914 Bom 303) (supra) was also distinguished as it was found on reference to the facts that in that case stay was of the whole of the decree.

23. In AIR 1959 Punj 613, an application for execution of a decree passed by a Delhi Court on August 12, 1935, was dismissed on January 4, 1936. The decree was transferred to Agra Court for execution, but the execution was stayed under the U.P. Temporary Postponement of Execution of Decrees Act, 1937, and remained pending till January 1950. In the meanwhile, another execution application was filed and dismissed at Delhi in 1939. Then the application for execution, where the question of Section 15, Limitation Act, arose, was filed on January 24, 1961. It was held that there was no absolute stay of execution under the U.P. Act and that what was stayed by the Act was recovery of decretal amount by sale of some land owned by the judgment - debtor in the district of Agra and since there was nothing to prevent the decree-holder from taking proceedings at Delhi against any assets of the judgment-debtor, which could be found there, and, further, since in fact while the Act which stayed those proceedings was in force, an execution application was filed and dismissed at Delhi, the application in question was held barred under Section 48(1), Civil Procedure Code. The benefit of Section 15 of the Limitation Act was not given.

24. Having carefully gone through all these decisions, we find that the basis for the first view is that where execution of the decree was stayed as regards merely a part of it, the decree-holder could have obtained execution of the decree against another property, so that, if he did not, he was not entitled to exclusion of time under Section 15.

25. The second view is founded on the following reasoning. There is nothing to limit the wording of Section 15 and there is no justification for adding words to that section. The decree-holder's discretion to execute the decree in any manner he deems fit should not be fettered. To compel him to adopt a particular mode of execution is to take away the discretion vested in him. However, the legal position will be different where a decree is not a single decree but is a composite decree which consists of several decrees and stay of execution, partial or complete, of one or the other of the several decrees, would not be stay in respect of the remaining decrees.

26. A third interpretation to Section 15 of the Limitation Act was given in AIR 1928 Mad 627 and AIR 1958 Cal 1. In the Madras Case it was held that where an order stayed execution of the decree as against one judgment-debtor, the period during which the stay continued cannot be excluded in computing the period of limitation for an execution against the other judgment-debtors, when there was no stay order against them. The Calcutta decision was pronounced by Chakravartti, C. J., speaking for the Division Bench. While notice was taken of the preponderance of judicial opinion in favour of the view that Section 15 contemplated an absolute stay, it was held that it applied also to a case of partial stay but only so as to allow exclusion of the period of stay in computation of time for a further execution against the same person or against the same property against which execution was previously stayed. It was observed that the view they took was not without hesitation and it appears that they found themselves compelled to take that view because they could see anomalous results flowing from the first view and also the second one.

27. These, then are the three views based on the reasons we have summed up above. We shall test these views by the language of Section 15. Omitting the words which are not relevant, it reads thus:--

'In computing the period of limitation prescribed for any application for execution of a decree, the execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.'

There are no words like 'totally', 'wholly' or 'as a whole' after the word 'execution'. Therefore, if the first view is accepted, we will have to read those words in the section which are not there and this cannot be justified when that interpretation leads to an obvious anomaly. It is incontestable that the choice is entirely of the decree-holder against what property of the judgment-debtor and against which of the judgment-debtors, in case they are more than one, he will proceed in execution of the decree. Where he had already got a certain property of a certain judgment-debtor attached and had applied for its sale, but the sale was stayed, it was no duty of his to make a searching enquiry for other properties which the judgment-debtor may have had. To accept the first view as correct, it will have to be said that the decree-holder was under an obligation to trace out another property of the judgment-debtor and to proceed against. If he did not, he cannot avail himself of the benefit of Section 15. To put it differently, the benefit of that section would be denied to the decree-holder if the judgment-debtor is able to show that he had, during the pendency of the stay order, any property moveable or immoveable, in any nook or corner of the country. It would suffice that the judgment-debtor could show some money deposited in some bank in any corner of the country. To chase a wild goose may perhaps be possible, but to require the decree-holder to comb the entire country to trace out some other property, moveable or immoveable, visible or hidden, of the judgment-debtor, will be generally looking to an impossibility. In our opinion, Section 15 does not intend so.

28. Take another case. Suppose, after stay of sale of a particular property, the decree-holder actually proceeded against some other property of the judgment-debtor and got it sold but the decree remained not fully satisfied. After the bar of stay is lifted, he applies for execution and seeks to get the same property sold in respect of which stay order was passed. To deny the benefit of Section 15 in such a case would be to defeat the object and purpose of Section 15. That section is intended to prevent accrual of any injury to the person who is interdicted by an injunction or order from exercising his right of execution of the decree.

29. Then, suppose, the judgment-debtor had no other property at all but the stay order was in limited terms, directing sale of the particular property attached to be stayed. Still on the first view, it will be argued that benefit of Section 15 is not available to the decree-holder for a further execution. Otherwise, it will have to be said that the impact of the stay order, when it is in limited terms, will depend upon the existence or non-existence of another property of the judgment-debtor for the purpose of application of Section 15, that is to say, if the judgment-debtor had some other property then Section 15 will not apply, but if he had none, then it would apply. In our opinion, the true meaning of Section 15 is not dependent on such an extraneous factor,

30. By giving all these illustrations we do not mean to say that the first view cannot be accepted on the grounds of equity or for considerations of hardship. We have only tried to demonstrate why we are not persuaded to see any justification for adding words to the section, more so when such a course produces anomalous results.

31. The provisions of the Limitation Act, like any other statute, must receive a construction which the language in its plain meaning imports. It is the duty of the Court to give full effect to the language used in the Act. See London Rubber Co. v. Durex Products Inc., AIR 1963 SC 1882. Their Lordships held in British India General Insurance Co. Ltd. v. Itbar Singh, AIR 1959 SC 1331, that the Court cannot add words to a section unless the section as it stands is meaningless or of doubtful meaning. In our opinion. Section 15 of the Limitation Act is neither meaningless nor of doubtful meaning. In accepting the first interpretation, the words like 'wholly' or 'by all possible means' have to be added. We see no justification for reading any such words in the section. The plain object of the section is to exclude the period during which the process of execution was stayed. As regards the third view, we think that it also would involve reading into the section something which it does not contain. The phrase 'for any application for execution' will have to be read as 'for any application for execution in the same manner in which its execution was stayed'. Again, we see no justification for adding those words to the section.

32. As we shall presently say, the intent and purpose of Section 15 are clear enough, and so is its language. We however, desire to add that even otherwise we would have supported the second view on the principle that where the language Is not precise, the provisions of the Limitation Act should be construed equitably and, if alternative constructions are possible, the one which is beneficent should be adopted. This principle was accepted, for instance, in Kandeswami v. Kannappa, ILR (1952) Mad 421 =(AIR 1952 Mad 186) (FB).

33. We are clearly of the view that 'execution' in Section 15 of the Limitation Act does not mean merely the title of the proceedings, nor necessarily the whole process of execution. 'Execution' means enforcement of a decree or an order by the process of Court so as to enable the decree-holder to recover the fruits of the decree. As held in Sreenath Roy v. Radhanath Mookerjee, (1883) ILR 9 Cal 773 at page 776, the words 'execution of decree' mean the enforcement of the decree by what is generally known as 'process of execution'. The Code of Civil Procedure deals with different kinds of processes against person and property of the judgment-debtor, or for the restoration of any specific property, land, or goods, or for compelling the judgment-debtor, by attachment, to obey the decree of the Court. In 33 CJS 1, at page 134, there is the following statement:--

'It (execution) sometimes embraces all the appropriate means to execution of the judgment; all means by which the judgments or decrees of Courts are enforced; all processes issued to carry into effect the final judgment of a Court; all processes and proceedings in aid of, or supplemental to execution that are customary in civil cases.'

We read the word 'execution' in Section 15 in this broad sense so as to embrace the various processes of execution, and any of them. We are further of the view that the words 'has been stayed by an injunction or order' are clearly relat-able to the factual position. An order or injunction staying execution of a decree may either be in general or unspecified terms (such as 'execution is stayed' or 'the decree-holder is restrained from executing the decree'). It may be in limited or specified terms (such as 'the sale of property 'A' is stayed' or 'the decree-holder is restrained from taking possession of property 'B', etc.'). In the latter case also, it will be said that execution has been stayed because a certain specified process in execution is also 'execution'. If we are right in this interpretation of the word 'execution', as we think we are, we are not adding any words to the section.

34. In short, if further progress of an execution of the decree is staved by an injunction or order, the period of such stay shall be excluded in computing the period of limitation prescribed for any application for execution of that decree. The word 'any' is of emphatic import and the exclusion will be available for any application for execution of the decree by whatever process the decree-holder likes to enforce it. It was, however, contended that some anomalies are also involved in accepting the second view such as those pointed out in Baijnath Prosad's case, AIR 1958 Cal 1. It is argued that where sale of property 'A' is stayed, it is not reasonable that limitation should be saved against the sale of property 'B'. This criticism, in our opinion, loses sight of the very purpose of providing limitation. The whole object and purpose of limitation is to create a bar to the decree as a whole being executed after the prescribed time, and not to protect a particular property of the judgment-debtor or to prevent a particular mode of execution after the prescribed time. What has to be seen is whether the decree is executable or not. If it is, then there is no restriction on the decree-holder's right to enforce it as best as he can. The effect of Section 15 of the Limitation Act is to arrest the running of limitation when its execution remained stayed by an injunction or order and thus extend the life of the decree beyond the prescribed time. It is in that light that we have to read the section.

35. We may observe that Section 15 of the Limitation Act appears to be analogous to Section 48(2)(a) of the Code of Civil Procedure, which applies to a case where the judgment-debtor has, by force or fraud, prevented the execution of the decree. In our opinion, it will not be reasonable to suggest that the benefit of Section 48(2)(a) of the Code will accrue to the decree-holder only if the judgment-debtor had made it impossible to execute the decree by any possible means. In our view, as long as the decree-holder was prevented from taking steps which he liked to take to execute his decree, limitation did not run against him.

36. The referring Bench, while thinking that the question is of considerable importance, also observed that it involved the question of the correctness of certain observations made in Sitaram's case, AIR 1944 Nag 155 (supra). We find that Sitaram's case, AIR 1944 Nag 155 does not take a contrary view. There, on the facts of that case it was found that the stay order was not restricted as regards any property or any judgment-debtor. The real question canvassed in that case whether Section 48 of the Code of Civil Procedure was controlled by Section 15 of the Limitation Act and that question was decided in the affirmative,

37. We, therefore, answer the question thus: (1) 'Execution' in Section 15 of the Limitation Act embraces all the appropriate means by which a decree is enforced. It includes all processes and proceedings in aid of or supplemental to execution. (2) Stay of any process of execution is stay of execution within the meaning of the section. (3) Where any injunction or order has prevented the decree-holder from executing the decree, then, irrespective of the particular stage of execution, or the particular property against, which, or the particular judgment-debtor against whom, execution was stayed, the effect of such injunction or order is to prolong the life of the decree itself by the same period during which the injunction or order remained in force. In other words, the period of stay shall be excluded from computation of the period of limitation for further execution without creating any restriction on the rights of the decree-holder to execute the decree as he chooses.

38. As this appeal itself was referred to the Full Bench, we shall decide it by applying the conclusions we have just now expressed. By virtue of the order dated August 16, 1940, passed by the Judicial Committee, the sale of the properties of the surety, which had been attached, was stayed. That order became dissolved on November 24, 1944. That entire period must, on the view we have taken, be excluded in computation of the period prescribed by Section 48 of the Code of Civil Procedure. It is without consequence that during the period of stay the decree-holder did take some other steps between Demember 9, 1940, and July 17, 1941, against another property of the surety and also against some property of the judgment-debtor, which proceedings remained fruitless.

39. This Letters Patent Appeal is allowed. The judgment and order passed by the learned single Judge in Civil Miscellaneous Appeal No. 76 of 1959 are set aside and the order dated April 3, 1959, passed by the learned District Judge is restored. Anandilal and Jankilal (respondents 1 and 2) shall pay to the appellant his costs in this appeal; counsel's fee Rs. 200. They shall also pay to the appellant his costs in Civil Miscellaneous Appeal No. 76 of 1959; counsel's fee according to the prescribed schedule. Chunnilal and Anandilal (respondents 3 and 4) shall bear their own costs in both these appeals.


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