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Onkarsingh Gulab Singh and ors. Vs. Meharbansingh Aharsingh - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. (Second) Appeal No. 152 of 1960
Judge
Reported inAIR1963MP176
ActsLimitation Act, 1908 - Schedule - Article 182 and 182(5); Code of Civil Procedure (CPC) - Order 21, Rule 11
AppellantOnkarsingh Gulab Singh and ors.
RespondentMeharbansingh Aharsingh
Appellant AdvocateR.S. Dabir, ;V.S. Dabir and ;R.P. Sinha, Advs.
Respondent AdvocateB.L. Seth, Adv.
DispositionAppeal allowed
Cases ReferredRadha Nath Das v. Produmna Kumar Sarkar
Excerpt:
.....when it is taken out. (iii) all that could be laid at best was that by operation of equity the respondent company had become entitled to the benefits of the decree as soon as it was passed; however, this cannot be considered to be good law in view of the pronouncement of their lordships of the supreme court in (s) air 1955 sc 376. in that case, the assignee of a decree-holder filed an application for execution under order 21, rule 11, civil procedure code, without specifying the mode in which he sought to execute the decree but only indicating that the assignment in his favour be recognized and he may be substituted for the decree-holder. as at present advised, on the principle of stare decisis, we are of opinion that an application for substitution would be tenable as a step-in-aid..........this application, though it purported to be in the form prescribed under order xxi, rule 11 of the code of civil procedure, no particular mode in which execution was sought was stated in the column meant for the purpose. this application was dismissed as not pressed on 19-3-1956. a third application giving rise to these proceedings was then filed on 24-6-1958. it again was in the form prescribed for applications under order xxi, rule 11, and showed hemabai as the judgment-debtor but in the column meant for mentioning the method by which execution was sought stated that the legal representative of the deceased judgment-debtor hemabai be brought on record.on 29-7-1958, they also filed a substantive application for substitution of the legal representative of the deceased judgment-debtor.....
Judgment:

Naik, J.

1. The only question that arises for consideration in this reference is whether an application made by a decree-holder for bringing on record the legal representatives of the deceased judgment-debtor is 'an application made in accordance with law to take a step-in-aid of execution of the decree' within the meaning of Article 182 (5) of the Limitation Act.

2. The question arises under the following circumstance:

The appellants (decree-holders) obtained a certificate from the Deputy Commissioner, Hoshangabad, under Section 13 of the Debt Conciliation Act. They registered it as a decree in the Court of Civil Judge, Class II, Sohagpur, on 29-1-1953. This decree they sought to execute against the judgment-debtor Hemabai by an application for execution filed on 17-1-1953. This application was dismissed on 26-6-1953. They again applied for execution on 5-11-1955. In this application there was a prayer that as the judgment-debtor Hemabai was dead, her legal representative be brought on record and thereafter the application for execution be further proceeded with. In this application, though it purported to be in the form prescribed under Order XXI, Rule 11 of the Code of Civil Procedure, no particular mode in which execution was sought was stated in the column meant for the purpose. This application was dismissed as not pressed on 19-3-1956. A third application giving rise to these proceedings was then filed on 24-6-1958. It again was in the form prescribed for applications under Order XXI, Rule 11, and showed Hemabai as the judgment-debtor but in the column meant for mentioning the method by which execution was sought stated that the legal representative of the deceased judgment-debtor Hemabai be brought on record.

On 29-7-1958, they also filed a substantive application for substitution of the legal representative of the deceased judgment-debtor Hemabai, supported by an affidavit, and therein stated that the respondent Meharban Singh was her heir in possession of her property and that he be brought on record in her place,

Notice was issued to Meharban Singh to show cause against the application. The respondent Meharban Singh appeared in response to the notice and contested the application contending, inter alia, that it was barred by time. The executing Court, by its order, dated 23-11-1959, dismissed the application holding that a mere application for substitution was not tenable, and inasmuch as the application, dated 24-6-1958, did not mention in what manner execution was to be levied, it could not be treated as an application for execution. It further held that as the earlier application, dated 5-11-1955, also suffered from a similar defect that was also untenable, with the result that the present application whether treated as an application for substitution or as an application for execution was barred by time. The Additional District Judge, Hoshangabad, confirmed this dismissal by his order, dated 27-8-1960. For holding that an application for substituting the legal representatives of a deceased judgment-debtor was not 'a step-in-aid of execution', the Courts below relied on certain observations of Shrivastava J. in Hemchand v. Tekchand. 1959 MPC 380: 1959 MPLJ 733 at p. 734: (AIR 1959 MC 403 at p. 403).

The decree-holders appealed and when the case came up before one of us e.g. Naik J. sitting singly, he in view of the tact that there were direct authorities supporting the contention of the appellants decree-holders that an application for bringing on record the legal representatives of the deceased judgment-debtor was a step-in-aid of execution within the meaning of Article 182(5) of the Limitation Act, which authorities, Shrivastava J. Considered to be impliedly overruled by the judgment of the Supreme Court in Jugalkishore v. Rao Cotton Co. Ltd., (S) AIR 1955 SC 376, referred the case to Honourable the Chief Justice with a recommendation that the appeal be placed before an appropriate Bench which can resolve the difference and dispose of the case according to law. This appeal has accordingly been referred to this Full Bench for disposal.

3. It has been the settled view of this Court following Varadaraja Mudali v. Murugesam Pilial, ILR 39 Mad 923 ; (AIR 1916 Mad 728 (2)) that the provisions of Article 182 of the Limitation Act should receive a fair and liberal but not too technical a construction, so as to enable the decree-holder to obtain the fruits of his decree: (See Ramchandra v. Uka, 24 Nag LR 36 at p. 37: (AIR 1927 Nag 308 at p. 309) and Pilwasao v. Mst. Khairun-Nissa, 31 Nag LR 126: (AIR 1935 Nag 1)).

4. Bearing the aforesaid principle in mind, we have to interpret the operative part of Article 182(5) of the Limitation Act, which, so far as relevant for our present purposes, reads as follows:

'....the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step-in-aid of execution of the decree or order.'

5. The expression 'an application made in accordance with law' has not been given, nor does it bear any technical meaning in the context in which it has been used. In Govind Prasad v. Pawankumar, ILR (1943) Nag 669: (AIR 1943 PC 98), the Judicial Committee of the Privy Council simply says that the words 'in accordance with law' mean in accordance with the law relating to the execution of decrees.

'The Article does not say anything about necessary application and we cannot, therefore, introduce such a notion into it. If an application, written or oral, has been made asking the Court to take some step-in-aid of execution, it forms a starting point under the Article.' (See Sekharipuram Gramom Krishna Aiyar v. Namiassan Veetil Mayankutti, 70 Ind Cas 80: (AIR 1922 Mad 30).

Consequently, in Ram Lal v. Udit Narain Singh, ILR 2 Luck 419: (AIR 1927 Oudh 134) it was held that an application which is not strictly necessary may nevertheless be in accordance with law: (See also Mirza Muhammad Sadiq Ali Khan v. Sajjad Mirza, ILR 3 Luck 126: (AIR 1928 Oudh 30). Similarly, in Janardan Govind v. Nara-yan Krishnaji, ILR 42 Bom 420: (AIR 1918 Bom 236) it was pointed out that the words 'in accordance with law' do not necessarily connote that the application should be one prescribed or required by law but only that it should accord with law. In this connection, we approve the observations at page 1248 in Pal's Law of Limitation that 'to test whether any application is in accordance with law or not, it will not be necessary to find out a provision requiring such application. All that we have to see is that it has not violated any provision of law.' This much, however, appears to be certain that the application must be for a prayer which the Court is competent to grant and which is not absolutely supertiuous in the sense that it, when granted, would in no way further the cause of execution.

6. We shall now proceed to determine whether on the aforesaid considerations an application for bringing on record the legal representative of the deceased judgment-debtor would be a step-in-aid of the execution.

7. It has been held in Desi Reddi Yellamander V.C. Pitchaiah, AIR 1915 Mad 314 that the expression 'step-in-aid' must be liberally construed. It must, however, as its name implies, be in some way a measure as one of the series which advances the cause of execution. Consequently, the question whether a particular step is a step-in-aid of execution will depend on the facts and circumstances of that case. If the facts show that the proceeding has the effect of facilitating or advancing the execution to any extent or removing some obstacles from the way of execution, it may well be re-garded as a step-in-aid of execution: (See Rambharose v. Rammanlal, ILR 7 Luck 590: (AIR 1932 Oudh 148)). In Tanba v. Chandrashankar, ILR (1939) Nag 367: (AIR 1938 Nag 191), Prayagdas v. Mt. Indirabai, ILR (1943) Nag 734: (AIR 1944 Nag 80) and Sheolal v. Ramrao, ILR (1947) Nag 572: (AIR 1948 Nag 197) it was pointed out that it is not necessary that an application for execution must be pending when an application, which is claimed to be a step-in-aid, is filed and this is now practically the view of all the Courts in India: (see Avi Goundan v. Solai, ILR (1945) Mad 468: (AIR 1945 Mad 139) (FB), Risal Singh v. Lal Singh, ILR (1939) All 728: (AIR 1939 All 483), Firm Ramnarayan Jegan Nath v. Radha Gobinda Deb Nath, ILR (1940) 2 Cal 252: (AIR 1940 Cal 557) and Jagdeo Narain Singh v. Rani Bhubaneshwari Kuer, ILR 7 Pat 70S: (AIR 1928 Pat 612).

8. As soon as a judgment-debtor dies, the records become defective and would require to be corrected. Thus, an application for bringing the legal representatives of the deceased judgment debtor on record would be a measure undertaken by the decree-holder as one of a series which advances execution, because it would be an application for correcting the record so that he (the decree-holder) may, without any objection on that account proceed against the legal representatives in execution of his decree. True, such an application is neither prescribed by the Code of Civil Procedure nor is it one which is absolutely necessary under any provision of law. Because the Code provides for an application for execution against persons whom the decree-holder considers to be the legal representatives of the deceased judgment-debtor. But, all the same, such an application is not also prohibited by law. Ordinarily, when an application for execution is directly made against persons whom the decree-holder considers to be the legal representatives of the deceased judgment-debtor, the question of their being the legal representatives is decided as a subsidiary fact in those very proceedings; but that does not prove that the question as to who the legal representatives of the deceased are is superfluous or irrelevant for facilitating or advancing the cause of execution.

9. In Ramchandra's case, 24 Nag LR 36: (AIR 1927 Nag 308) (supra), speaking on the subject, Kinkhede, A. J. C., said:

'There is nothing in the Civil Procedure Code which prohibits a Court from entertaining an application for substitution of the legal representative in place of deceased decree-holder or judgment-debtor. The application for substitution, dated 30th September, 1924, was, therefore, certainly a step which did not contravene any express provision of the Statute law or conflict with any principle of law, merely because the Court is not expressly empowered by the Statute to have recourse' to that extraneous assistance .....In my opinion, there is no difference in principle, so far as the saving of limitation is concerned, between an application for execution drawn up strictly in accordance with the requirements of Rule 11 of Order XXI, and an application to take some step in aid of execution, or for the matter of that between an application which asks for transfer of a decree from one Court to another and an application which prays for the completion of the array of parties by repairing the breach which death has caused therein. Whatever step aids the satisfaction of a decree, aids its execution even though the latter word would be used strictly in technical sense.

Merely because the decree-holder instead of asking the Court which passed the decree to execute the decree against the legal representative after service of notice under Rule 22 of Order XXI of the Civil Procedure Code, asks that Court to first complete the array of parties and thereafter makes an application for execution of the decree, he cannot be said to have acted in a manner which does not accord with law. He cannot be penalized for having displayed reasonable diligence in getting in the fruits of his decree. The step of substituting the legal representative of the deceased judgment-debtor thus taken as per application, dated 30th September 1924, was a step which must be treated as one in accordance with the spirit as well as the letter of the law, for it must ultimately assist in the realisation of the decree and facilitate the actual execution of the decree when it is taken out. If this step had not been taken earlier the Court whose duty it was to execute the decree would have necessarily been required to take it in execution as contemplated by Rule 22 aforesaid.'

To the same effect are the decisions in Deputy Commissioner, Rae Barell v. Ali Khan, ILR 20 Luck 449: (AIR 1945 Oudh 298), Mahalinga Moopanar v. Kuppanachariar, ILR 30 Mad 541, Manmohan Das v. Rashiduddin, AIR 1927 All 698, Ram Kali v, Birbhadraman Tewari, ILR 56 All 890: (AIR 1934 All 463) and Adharchandra Dass v. Lal Mohun Das, ILR 24 Cal 778.

10. Applying the aforesaid principles and following Ramchandra's case, 24 Nag LR 36: (AIR 1927 Nag 308) (supra), it was held in ILR (1939) Nag 367: (AIR 1938 Nag 191) (supra) that an application made by transferees for getting their names substituted in place of the original decree-holder was a step-in-aid of execution within the meaning of Article 182(5) of the Limitation Act. Similarly, in ILR (1943) Nag 734: (AIR 1944 Nag 80) (supra), a Division Bench of this Court held that an application by a son of the deceased decree-holder to be substituted for his father was a step-in-aid of execution.

11. The question then is whether there is anything in 1955 SCR 1369: ((S) AIR 1955 SC 376) (supra), which directly or impliedly overrules the aforesaid decisions.

12. Examining the facts of that case, we find that that case has no relevance for an interpretation of Article 182(5) of the Limitation Act, as it mainly deals with the provisions of Rule 16 of Order XXI of the Code of Civil Procedure.

13. In that case, a firm of one Habib and Sons had filed a suit against the appellant Jugalkishore for the recovery of Rs. 7,113/7/- with interest at 6% per annum due on certain transactions in gold and silver effected by the firm as 'pacca adatias'. During the pendency of the suit, on 7-2-1949 the plaintiff firm transferred all its books and other debts, securities and properties is connection with its' business in Bombay to the respondent Co., viz., Raw Cotton Co., Ltd. The respondent Company, however, did not get itself substituted in the aforesaid Civil Suit against Jugalkishore under Rule 10 of Order XXII of the Code of Civil Procedure. Consequently, the suit was decreed in favour of the original plaintiff, Habib and Sons. In the meanwhile, the partners of Habib and Sons had migrated to Pakistan and their properties in Bombay had vested in the Custodian of Evacuee Properties. However, in December 1950, the Additional Custodian confirmed the transaction of transfer in favour of the respondent firm.

The respondent firm then applied for execution of the decree against the judgment-debtor Jugalkishore. Though the tabular statement purported to be under Rule 11 of Order XXI of the Code of Civil Procedure, the column meant for the mode in which execution was sought contained an endorsement that the Court be pleased to declare the respondent as the assignee of the decree and substitute it for the original decree-holder, viz., Habib and Sons. The executing Court, under Rule 16 of Order XXI of the Code of Civil Procedure, issued a notice to the appellant Jugalkishore to show cause against the aforesaid application. While showing cause the judgment-debtor Jugalkishore, inter alia, contended that the respondent Company was not the transferee of the decree within the meaning of Rule 16 of Order XXI of the Code.

This was the main question debated in all the Courts wherein it appears that the respondent transferee pressed its right to execute the decree in question on all conceivable grounds.

After examining the rival contentions of the parties, the learned Judges of the Supreme Court, through their separate opinions, though agreeing in their main conclusions, inter alia, held:

1. That the provisions of Order XXI, Rule 16 of the Code of Civil Procedure postulate

(a) that the decree has been passed and

(b) that the decree has been transferred by assignment or by operation of law; and that view-ed in this light the respondent Company was not a transferee of the decree in question because--

(i) there was no transfer of the decree in favour of the respondent Company after its passing and by an assignment in writing;

(ii) the transfer in question could not be reated as an equitable assignment also, as there was no agreement to transfer a decree to be passed in future;

(iii) all that could be laid at best was that by operation of equity the respondent Company had become entitled to the benefits of the decree as soon as it was passed; and

(iv) the transfer in question could not be held to have transferred the decree in question to the respondent Company by operation of law within the meaning of Order XXI, Rule 16 of the Code.

2. That the respondent Company was nonetheless the real owner of the decree because it was passed in relation to and for the recovery of the debts which undoubtedly it acquired by the transfer in question and could therefore execute it by virtue of Section 146 of the Code.

14. It would thus be seen that not only did the aforesaid case not directly or indirectly deal with the interpretation of Clause (5) of Article 182 of the Limitation Act but that it does not also by down any principles which may be said to have everruled any of the principles which had so far teen relied on for the interpretation of that clause.

15. Reliance was, however, placed on the observations of Bhagawati J. in the aforesaid case where, approving the observations of Sen J. in Radha Nath Das v. Pradumna Kumar Sarkar, ILR 41939) 2 Cal 325, the learned Judge said that he (Sen &) had correctly laid down that Order XXI, Rule 16 of the Code of Civil Procedure nowhere provides for an application to record an assignment or for an application for leave to execute a decree by an assignee or for an application for substitution and that consequently an application for recognition of an assignment was defective as an application for execution. From this it was sought to be argued, on the basis of the decision of shrivastava J. in 1959 MPC 380: 1959 MPLJ 735: (AIR 1959 MP 403) (supra), that an applica-tion for substitution simpliciter being defective as an application for execution, it could not also be construed as 'an application in accordance with law to take some step-in-aid of execution of the decree' within the meaning of Clause (5) of Article 182 of the Limitation Act.

16. The observations of Shrivastava J. in 1959 DPPC 380: 1959 MPLJ 735: (AIR 1959 MP 403) (supra) relied on by the learned counsel, are:

'It would thus appear from these two decisions (e. g., 24 Nag L R 36: (AIR 1927 Nag 308) and ILR (1943) Nag 734: (AIR 1944 Nag 80)) that an application for substitution of legal representatives, unaccompained with an execution application, is valid in law and can be maintained.

However, this cannot be considered to be good law in view of the pronouncement of their Lordships of the Supreme Court in (S) AIR 1955 SC 376. In that case, the assignee of a decree-holder filed an application for execution under Order 21, Rule 11, Civil Procedure Code, without specifying the mode in which he sought to execute the decree but only indicating that the assignment in his favour be recognized and he may be substituted for the decree-holder. In paragraph 60 of the judgment, their Lordships referred to a Calcutta case, Radha Nath Das v. Produmna Kumar Sarkar, ILR (1939) 2 Cal 325 in which it was held that under Order 21, Rule 16, Civil Procedure Code, the assignee of a decree cannot make two applications, one for recording the assignment and another for executing the decree. The following passage from that judgment was quoted:--

'It seems to me to be obvious from the wording of the Rule that there can be no notice to the transferor or judgment-debtor and no hearing of any objection unless and until there is an application for execution. The notice and the entire proceedings under Order 21, Rule 16, originate from an application for execution. If there is no such application, the proceedings are without any foundation. Order 21, Rule 16 of the Code nowhere provides for an application to record an assignment or for an application for leave to execute a decree by an assignee or for an application for substitution.' This view was accepted as stating the correct position of law. A contrary view had been expressed in two Bombay cases, which were dissented from ,in the Calcutta case, and their Lordships laid down that the view taken by the Bombay High Court was not correct. It must, therefore, be held that a mere application for substitution, unaccompanied by an application for execution, is not contemplated under Order 21, Rule 16, and is not tenable.'

17. In our opinion, the argument is misconceived. The Supreme Court case, (S) AIR, 1955 SC 376 (supra) was not concerned with the interpretation of the expression 'in accordance with law to the proper Court for execution, or to take some step-in-aid of execution of the decree' occurring in Clause (5) of Article 182 of the Limitation Act. It may here be noted that in that case the decree was passed on 15-12-1949. The application for execution or rather what was meant to be an application for execution under Order 21, Rule 11, Civil Procedure Code, though defective in form, in that it did not specify any of the modes in which the assistance of the Court was sought as required by the Rules was filed on 25-4-1951 and later, on 27-3-1952, a further application, complete in all respects, under Order 21, Rule 11, was also filed. There was thus no question of limitation and the observations of Bhagwati J., relied on by Shrivastava J., were made by him when considering the submission of the learned counsel for the appellant that the application for execution, dated 25-4-1951 filed in that case was defective qua an application for execution and that consequently no execution could levy on its basis.

It was in this context that the learned Judge of the Supreme Court pointed out that the plainwords of Rule 16 of Order XXI of the Code of Civil Procedure required an application for execution; that the application filed in that case did not comply with all the requirements of Order XXI, Rule 11; that, no doubt, the tabular form used was of. Order XXI, Rule 11 and the application was also headed 'An application for execution', under Order XXI, Rule 11, Civil Procedure Code; but that it did not specify, in the column meant for the purpose, the particulars in regard to the mode in which the assistance of the Court was sought as required by Order XXI, Rule 11 (2) (j); and that because of this defect the first application, dated 25-4-1951, was defective as an application for execution but as the decree-holder had in the meanwhile filed another application for execution on 27-3-1953, the detect was cured, as the filing of this second application was a sufficient compliance with the provisions of Order XXI, Rule 11 (2) (j) of the Code of Civil Procedure.

18. Thus, all that the Supreme Court rule was that Order XXI, Rule 16, of the Code or Civil Procedure contemplated an application for execution and an application which did not comply with the requirements of Rule 11 (2) (j) of Order XXI was defective as an application for execution.

19 But the mere fact that an application was untenable qua an application for execution does not conclude the question so far as the interpretation of Clause (5) of Article 182 of the Limitation Act is concerned. That clause speaks of two things: (i) an application in accordance with law to the proper Court for execution of the decree; and (ii) an application in accordance with law to the proper Court to take some step-in-aid of execution of the decree. And in regard to the second of the two alternatives, as pointed out earlier: (a) an application, which is a step-in-aid of execution, need not necessarily be filed during the pendency of an application for execution, and (b) it need not be one which is prescribed by any provisions of law--it is sufficient if it is not prohibited by law and is made to a competent Court for some relief which that Court can grant and which relief is not quite superfluous, but in some way furthers the cause of execution of the decree.

There is nothing in the decision of the Supreme Court in 1955 SCR 1369: (S) AIR 1955 SC 376 (supra) which impairs the validity of any of the aforesaid propositions on which the decisions in 24 Nag LR 36: (AIR 1927 Nag 308) (supra) and ILR (1943) Nag 734: (AIR 1944 Nag 80) (supra) rest and, in our opinion, a more direct pronouncement of the Supreme Court would be needed before we are persuaded to hold that the aforesaid two decisions of this Court, which have held the field for over 30 years, should be deemed to be overruled. As at present advised, on the principle of stare decisis, we are of opinion that an application for substitution would be tenable as a step-in-aid of execution within the meaning of Clause (5) of Article 182 of the Limitation Act and in so far as 1959 MPC 380: 1959 MPLJ 733: (AIR 1959 MP 403) (supra) says anything to the contrary it is not good law.

20. In the instant case, if the application, dated 5-11-1955, is held to be an application in accordance with law to the proper Court to take some step-in-aid of execution within the meaning of Clause (5) of Article 182 of the Limitation Act, the application for substitution, dated 25-4-1958, was within time and was also tenable as a step in aid of execution.

21. In the result, the appeal is allowed with costs throughout and the order of the executions Court dismissing the application of the appellants (decree-holders) for substitution as barred by time is hereby set aside. The case shall now go back to the (executing Court for further trial and disposal according to law.


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