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Smt. Ramji Raja Vs. Puncham Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 166 of 1955
Judge
Reported inAIR1959MP269
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48; Limitation Act, 1908 - Sections 15 and 29; Evidence Act, 1872 - Sections 56 and 57
AppellantSmt. Ramji Raja
RespondentPuncham Singh
Appellant AdvocateJagdamba Prasad Asthana, Adv.
Respondent AdvocateN.K. Shejwalkar, Adv.
DispositionAppeal allowed
Cases Referred and Lalji Dayaldas v. Jugal Kishore
Excerpt:
.....of twelve years from 27-3-1947 when default occurred it is not barred by section 48 of the code of civil procedure. and follow the authority cited above ilr 1948 nag 280 :(air 1948 nag 272). 13. now, in particular, the effect of stay orders passed by the ruler of gwalior is well settled. in the gwalior state, as a measure of relief to zamindars and agriculturists, the ruler of that state passed orders from time to time staying execution of decrees against them because of failure of crops or for similar reasons. 2 of samvat 1991 was issued by the legislative department of that state and that made it expressly clear that the periods during which such stay orders were in force were to be excluded for the purposes of section 48 of the civil procedure code as well as for those of section 15..........karera and registered as execution case no. 567 of 1952 was barred by section 48 of the code of civil procedure.2. on 24-6-1937 a decree was passed in favour of the appellant for the recovery of rs. 2,200/- by the district sub judge, narwar in suit no. 276 of samvat 1989. it appears that costs were not awarded by the trial judge to the plaintiff. on her appeal the district judge, shivpuri awarded hex costs also (civil appeal no. 5 of samvat 1994 decree dated 22-2-1938).3. the first application for execution was made on 16th may 1940 (execution case no. 955 of samvat 1996) in the court of district sub judge, shivpuri. since the decree-holder prayed for an attachment and sale of zamindari property of the judgment-debtor the decree was transferred for execution to the collector, shivpuri.....
Judgment:

S.D. Shrivastava, J.

1. The question in this second ap-peal is whether the application for execution dated 20-12-1952 filed by the appellant in the Court of the Civil Judge, Second Class, Karera and registered as Execution Case No. 567 of 1952 was barred by Section 48 of the Code of Civil Procedure.

2. On 24-6-1937 a decree was passed in favour of the appellant for the recovery of Rs. 2,200/- by the District Sub Judge, Narwar in suit No. 276 of Samvat 1989. It appears that costs were not awarded by the trial Judge to the plaintiff. On her appeal the District Judge, Shivpuri awarded hex costs also (Civil appeal No. 5 of Samvat 1994 decree dated 22-2-1938).

3. The first application for execution was made on 16th May 1940 (Execution Case No. 955 of Samvat 1996) in the court of District Sub Judge, Shivpuri. Since the decree-holder prayed for an attachment and sale of zamindari property of the judgment-debtor the decree was transferred for execution to the Collector, Shivpuri and was registered there on 20-8-1940 as Execution Case No. 57 of Samvat 1997. The proceedings were consigned to record on 7-6-1941 because of stay orders.

4. Eventually, in Execution Case No. 132 of Samvat 1999, on 12-2-1946 Jugraj Singh judgment-debtor prayed that he may be allowed to repay the judgment debt by instalments and the sale of Zamindari be stayed. He was directed to deposit Rs. 1,000/- so that his prayer for fixing instalments could be considered. In compliance therewith the judgment-debtor deposited Rs. 1000/- on 27-3-1946 the decree-holder filed a reply in which she expressed her willingness that the amount of Rs. 1,000/- which the judgment-debtor had deposited be paid to her and, for the balance, instalments for three years might be fixed by his order of the same date the Collector granted it. The decree-holder got the amount of Rs. 1,000/-.

5. On 23-12-1948, the appellant again applied for the execution of the decree by sale of Zamindari property of the judgment-debtor (Execution Case No. 276 of Samvat 2005 in the Court of the District Sub-Judge, Shivpuri). By order dated 11-5-1949, the decree was again transferred to the Collector, Shivpuri. and was registered there as Execution Case No. 68 of 1949 on 1-6-1949. On 31-1-1951 again instalments were ordered but that order was set aside on appeal. The case came back to the Collector, was registered as No. 28 of 1951, and was eventually dismissed for default on 19-12-1951.

6. Then the present application for execution was made on 20-12-1952 to the Civil Judge, Second Class Karera and the same was registered as Execution No. 567 of 1952. The M, B. Zamindari Abolition Act 1951 having come into force, the decree-holder now apolied for attachment and sale of other properties of the judgment-debtor. TheExecuting Court held that the present application for execution was barred by Section 48 of the Code of Civil Procedure and that judgment has been affirmed by the first appellate Court. Calculating from 22-2-1938, the execution application was filed about thirty four months after the expiry of twelve years.

7. In this second appeal Shri Jugdamba Pra-sad Asthana learned counsel for the decree-holder has raised several points before me.

8. First of all he argues that the application dated 20-12-1952 is not a fresh application within the meaning of Section 48 of the Code of Civil Procedure; it is but a continuation of his previous application. This contention is devoid of substance. Not only that for all intents and purposes the application dated 20-12-1952 was a fresh application, but it was so also because it claimed altogether a different relief. Formerly recovery of the decretal amount was sought by the sale of Zamindari property; in the present application other properties were sougth to be sold.

9. Shri Jagdamba Prasad's next contention is that the judgment-debtor was responsible for delaying the proceedings in execution by making various kinds of applications and raising frivolous objection therein and the decree-holder was, therefore, entitled to exclude the period spent in these proceedings. It is argued that such tactics of the Judgment-debtor amounted to a fraud within the meaning of Section 48 of the Code of Civil Procedure. In ray opinion this contention also must fail. It is not shown on behalf of the decree-holder what those objections were which are now being called as frivolous and amounting to fraud. The learned counsel has not been able to point out any such objection specifically.

The judgment-debtor is entitled to take such objections and pleas as the law allows him and it' cannot be said that the time spent in the trial and disposal of those objections must be excluded under Section 48 of the Code of Civil Procedure. I am supported in this view by a decision of the Nagpur High Court reported in Prayagdas Shankerlal v. Mt. Jndrabai. 1LR 1947 Nag 497 : (AIR 1948 Nag 189), where Bose, J. has observed that :

'The fact that the judgment-debtor contests the decree-holder's application only with a view to delay the execution of the decree cannot amount either to force or fraud.'

The learned counsel relies on Devrao Suryabhan v. Ramchandra Amrutlal AIR 1948 Nagpur 272, but the facts of that case were quite different so far as this point is concerned.

10. Then it is argued that the order passed by the Collector in Execution Case No. 132 of Sambat 1999 by which instalments were fixed, must be taken as the starting point for; the purpose of Section 48 of the Code of Civil Procedure and that the said order of the Collector falls within the purview ot the expression 'subsequent order' within the meaning of that section. The order dated 27-3-1948 was not passed by the Court which passed the decree. The question for consideration is whether tinder Clause (b) of Section 48 of the Code, a 'subsequent order' must be one passed by the Court which passed the decree or the expression also includes a subsequent order passed by a court to which a decree was transferred for execution. Decisions on this point are conflicting. Section 48 bars a fresh application for execution presented after twelve years from

'(b) Where the decree or any subsequent order directs any payment of money of the delivery of any property to be made at a certain date or at recurring periods the date of the default in making the payment or delivery in respect of the default inmaking the payment or delivery in respect of which the applicant seeks to execute the decree.'

I am of the opinion that in Section 48 of the Code the words 'subsequent order' are used in a wide sense. If that were not so, a different language would have been employed so as to restrict it to orders passed by that Court alone which passed the decree. I do not see how in principle or reason there could be a difference between the two. An order passed by the Court executing a decree is fully covered by the expression 'subsequent order' whether that court is the original court which passed the decree or a transferee court.

I, therefore, follow with respect the decision of Hidyatullh J. (as he then was in ILR 1948 Nagpur 230 : (AIR 1948 Nag 272). The same view was taken in Bismilla Meer Jangu v. Jagannath Binraj ILR (1947) Nag 25 : (AIR 1947 Nag 101) and Lalji Dayaldas v. Jugal Kishore, AIR 1931 'Nag 50. The present application for execution is clearly covered by Section 48(b) and computing the period of twelve years from 27-3-1947 when default occurred it is not barred by Section 48 of the Code of Civil Procedure.

11. The next contention advanced by Shri Asthana is that under various orders passed by the Ruler of the erstwhile Gwalior State, execution of decrees against Zamindars of the Gwalior State had been stayed from time to time, and that entitled the decree holder to get all that period excluded in computing the period of twelve years under Section 48 of the Code of Civil Procedure. No material was placed in the first court to substantiate that ground. All that was done there was to inform the Court of the dates of the Gazette notifications. Neither the relevant issues of the Government Gazette were produced nor were the notifications proved, The executing Court refused to take judicial notice of those notifications.

12. As to this, the first question for consideration is whether Section 15 of the Limitation Act controls Section 48 of the Code of Civil Procedure also, so that the period during which a stay or an injunction continued could be excluded in computing the period of twelve years. On this question also judicial opinion is very much divided. With great respect I agree with Hidyatullah, J. and follow the authority cited above ILR 1948 Nag 280 : (AIR 1948 Nag 272).

13. Now, in particular, the effect of stay orders passed by the Ruler of Gwalior is well settled. In the Gwalior State, as a measure of relief to Zamindars and agriculturists, the Ruler of that State passed Orders from time to time staying execution of decrees against them because of failure of crops or for similar reasons. Then, questions arose as to the applicability of Section 15 of the Limitation Act and Section 48 of the Code of Civil Procedure to such stay orders.

For the removal of doubts, Circular No. 2 of Samvat 1991 was issued by the Legislative Department of that State and that made it expressly clear that the periods during which such stay orders were in force were to be excluded for the purposes of Section 48 of the Civil Procedure Code as well as for those of Section 15 Limitation Act. In the Cwalior State the same view was taken by the High Court of that State (See Risala Qanooni Vol. 15 page 304). Both on reason and authority the decree-holder in this case is entitled to get the whole of the period excluded in computing the twelve years, provided the fact that stay orders were passed, is established.

14. The Executing Court as pointed above refused to give the benefit to the decree-holder because tbe notifications were not proved and the first appellate Court has not decided that question. The executing Court relied upon a decision of the M B.High Court. I am aware of several other decisions also in which the M. B. High Court took the view that a notification required formal proof before it could be applied to a case. But subsequently a Full Bench of the M. B. High Court took a contrary view.

15. In the present case the notifications relate to orders of the Ruler of Gwalior State and it is said that they were published in various issues of the Government Gazette. In my opinion, no proof of these notifications was necessary. The original issues of the Gazette ought to have been produced in the first Court by the decree holder; it was undoubtedly her duty. The decree-holder failed in her duty and the first Court was also in error in holding that it would not take judicial notice of such notifications.

But then if the period of twelve years is computed from 22-2-1938, the execution could be held-as not barred only if the total period ot the stay orders were more than thirty-four months. Since according to the appellant herself (see para 4 of the appeal memo) it was only twentysix months, this point does not help the appellant.

16. The conclusion is that the present application for execution filed by appellant in the Court of Civil Judge, Second Class, Karera on 20-12-1952 (Execution No. 567 of 1952) is held as not barred by Section 48 of the Civil Procedure Code. Since both the Courts below held that it was barred and dismissed it on that ground alone, both judgments must be set aside and the case must go back for further proceedings.

17. This appeal is, therefore, allowed the judgments and orders passed by the execution Court and the first appellate Court are set aside and the-case is sent back to the Civil Judge, Second Class Karera with the direction that he must proceed further according to law. The decree-holder-appellant will get her costs both in this Court and in the first appellate Court from the respondents.


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