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Jagannath S/O. Rambux and ors. Vs. Bhilu S/O Kalu - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Appeal No. 3 of 1962
Judge
Reported inAIR1963MP181
ActsLimitation Act, 1908 - Sections 19
AppellantJagannath S/O. Rambux and ors.
RespondentBhilu S/O Kalu
Appellant AdvocateG.M. Chafekar, Adv.
Respondent AdvocateS.L. Dubey, Adv.
DispositionAppeal dismissed
Cases ReferredBalbhaddar Singh v. Sheo Pearey Lal
Excerpt:
- 1. this second appeal involves only 8 question of limitation with reference to an execution application.2. the claim of the decree-holders-appellants in the present execution is held barred by limitation under article 182 of the limitation act by both the courts below and the appellants seek to assail those decisions. they had obtained a decree for money against the respondent in civil original suit no. 56 of 1948 on 29-3-1948. subsequent to this decree the respondent submitted an application for instalments under section 15 of the madhya bharat money lenders act on 5-1-1949. this application was dismissed on 15-7-1950. in the course of this petition for instalments an application was submitted on 15-7-1950 which contained a reference to the decree in execution, me present execution.....
Judgment:

1. This second appeal involves only 8 question of limitation with reference to an execution application.

2. The claim of the decree-holders-appellants in the present execution is held barred by limitation under Article 182 of the Limitation Act by both the Courts below and the appellants seek to assail those decisions. They had obtained a decree for money against the respondent in Civil Original Suit No. 56 of 1948 on 29-3-1948. Subsequent to this decree the respondent submitted an application for instalments under Section 15 of the Madhya Bharat Money Lenders Act on 5-1-1949. This application was dismissed on 15-7-1950. In the course of this petition for instalments an application was submitted on 15-7-1950 which contained a reference to the decree in execution, me present execution petition was filed on 29-10-1953 and it is not disputed that that is the only execution petition which has so far been filed. Reckoned from the date of the decree viz. 29-6-1948 this execution petition filed on 29-10-1953 is apparently barred by time but on behalt of the decree-holders reliance is placed upon two petitions submitted by the respondent on 5-1-1949 and the second on 15-7-1950 and it is contended that these petitions constitute sufficient acknowledgment within the meaning of Section 19 of the Limitation Act to save the present execution petition from the bar of limitation.

They also depend upon the provisions of the Madhya Bharat Famine (Suspension of Proceedings) Act, 1953, for exclusion of the period from 16-1-1953 to 31-12-1953 on the ground that for this period the decrees against the agriculturist-debtors had been suspended under the orders of the- Government due to existence of famine conditions in the parts where the village of the respondent was situated.

3. It is not disputed by the learned counsel for the appellants that the present execution petition will not be subject to bar of limitation only if the application submitted by the respondent dated 15-7-1950 amounts to an acknowledgment within the meaning of Section 19 of the Limitation Act. Respondent's earlier application dated 5-1-1949 even if it amounts to an acknowledgment Will not any way help the appellants. The learned counsel further concedes that even if the application dated 15-7-1950 is treated as an acknowledgment still the appellants will have to take aid of the provisions of the Madhya Bharat Famine (Suspension of Proceedings) Act, 1953, to bring the present execution petition within limitation.

Thus it is clear that it is only when the application of the respondent dated 15-7-1950 is treated as an acknowledgment and the case of the respondent is covered by the protective provision under the Madhya Bharat Famine (Suspension of Proceedings) Act that the execution petition is to be taken to be saved from the bar of limitation. It will therefore be necessary in the first instance to examine the petition of the respondent dated 15-7-1950 which is produced as Ex. P./3. In that petition the petitioner has slated that the appellants had obtained an ex parte decree against him and that he had submitted an application for a hearing being given to him, that in pursuance of the later application an order for producing evidence had been passed but that in spite of this en order later on had been passed fixing the case for argument and for orders. It was on these facts he prayed that his evidence might be taken. Question for consideration is whether reference to the existence of an ex parte decree in a petition such as this can be considered to be an acknowledgment of his liability under the decree within the meaning of Section 19 of the Limitation Act.

4. In ILR 18 All 384 Hingan Lal v. Mansa Ram, it was observed with reference to an acknowledgment in a written statement which was relied upon for the purpose of Section 19 of the Limitation Act that a statement that the judgment-debtor had been declared liable to the payment of certain sum of money by a certain decree passed in a certain year, which happened to be the decree then sought to be executed, was a mere statement of tact that a decree was passed against a party on a certain date for a certain amount and does not amount to an acknowledgment that the decree is capable of execution so as to come within the purview of Section 19 of the Limitation Act. Their Lordships observed:

'If we were to hold that the statement of fact in that written statement amounted to an acknowledgment within Section 19 of Act No. XV of 1877, we should be practically making it impossible for a defendant to comply safely with the Code of Civil Procedure by giving in his written statement a simple narrative of the facts on which he based his defence.'

5. In another case reported in AIR 1930 Oudh 67, Balbhaddar Singh v. Sheo Pearey Lal, it was observed that:

'Section 19 does not prescribe that an acknowledgment should be express; it may be implied. Nor is it necessary that it should specify the exact nature of the right. The question as to whether there is or is not an acknowledgment is one of construction of document in which the alleged acknowledgment is contained and to construe the document is function of the Court.'

6. In view of these observations, with which I respectfully agree, question for consideration is whether the application dated 15-7-1950 Ex. P/3 amounts to sufficient acknowledgment for the purpose of Section 19 of the Limitation Act. It will be sufficient in case the application is construed to contain an affirmative admission of subsisting liability under the decree apart from any statement as to the writer's ability or willingness to pay.

In the present case the application construed as a whole will not, in my opinion, be capable of being con-sirued as involving an acknowledgment of subsisting liability although it may have contained reference to the passing of a decree. The tenor of the whole application is not one of admission of liability but denial of it although factually it is not disputed that a decree had been passed. The case, in my opinion, is covered by the observations in 1LR 18 All 384.

I would, therefore, be disinclined to hold that the application amounts to an acknowledgment of the respondent's liability. It would certainly lead to a very strange result if a defendant against whom an ex parte decree is passed and who makes a mention of it in order to seek assistance of the Court to set it aside is held to be liable as acknowledging his liability under the decree by reason of such reference in his petition.

7. As 1 hold that the application dated l5-7-1950) does not amount to sufficient acknowledgment for the purpose of Section 19 of the Limitation Act it is unnecessary to consider the further question as to whether the provision of the Madhya Bharat Famine (Suspension of Proceedings) Act, 1953, can really be availed of by the decree-holders for exclusion of the time covered by that provision.

8. The appeal accordingly is without force and is dismissed with costs.


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