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Mst. Parmeshri and ors. Vs. Mst. Atti - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. Second Appeal No. 739 of 1956
Judge
Reported inAIR1958P& H79
ActsLimitation Act, 1908 - Schedule - Article 182 and 182(7); Code of Civil Procedure (CPC) , 1908
AppellantMst. Parmeshri and ors.
RespondentMst. Atti
Appellant Advocate K.L. Jagga, Adv.
Respondent Advocate D.N. Aggarwal, Adv.
DispositionAppeal dismissed
Cases ReferredMt. Bhagwati v. Sant Lal
Excerpt:
.....in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - it was only the second issue that has been the subject-matter of contest in the proceedings in the lower courts as well as in this court the executing court upheld the contention of the appellants and came to the conclusion that the application for execution was barred by limitation in which according to the finding of the trial court the starting point of limitation was the date of first instalment for giving of grain in the month of..........the month of jeth and 12 1/2 maunds of maize in the month of kartik. in the event of default the decree-holder was to get possession of one-half of the land in suit. it is admitted that no execution was taken out till 22nd june, 1955 when shrimati atti soughtexecution of the decree for the first time. the main contention of the appellants, who were brought on the record as the legal representatives of harnam singh deceased, was that the execution was barred by time as no step of any kind was taken with a view to execute the decree for the last eight years. the executing court framed the following issues:-- '(1) is the decree-holder entitled to possession of the land in dispute? (1a) are the respondents bound by the decree? (2) is the execution within time? (3) relief?' 3. the issue.....
Judgment:

Tek Chand, J.

1. In order to appreciate the respective contentions of the parties a short pedigree-table is given below :--

HARNAM SINGH

__________________________|________________

| | | |

Parmeshri Khushali Gurdit Kaur Budh=Shrimati

(appellant) (appellant) (appellant) Singh Atti

(widow)

(respodent)

2. Shrimati Atti , widow of Budh Singhwho predeceased his father Harnam Singh. Harnam Singh died in May, 1953 leaving three daughters, Parmeshri, Khushali and Gurdit Kaur, whoare appellants, and Shrimati Atti widow daughter-in-law. On 8th July, 1946 Shrimati Atti sued her father-in-law Harnam Singh for possession of85 kanals 19 marlas on account of her maintenance. The suit was filed in the Court of Subordinate Judge, Dasuya, District Hoshiarpur. On 28th April 1947 the parties entered into a compromiseand a decree was passed in terms of the compromise. The decree was to the effect that Harnam Singh shall give to Shrimati Atti grain weighing 25 maunds; 12 1/2 maunds of wheat was to begiven in the month of Jeth and 12 1/2 maunds of maize in the month of Kartik.

In the event of default the decree-holder was to get possession of one-half of the land in suit. It is admitted that no execution was taken out till 22nd June, 1955 when Shrimati Atti soughtexecution of the decree for the first time. The main contention of the appellants, who were brought on the record as the legal representatives of Harnam Singh deceased, was that the execution was barred by time as no step of any kind was taken with a view to execute the decree for the last eight years. The executing Court framed the following issues:--

'(1) Is the decree-holder entitled to possession of the land in dispute?

(1A) Are the respondents bound by the decree?

(2) Is the execution within time?

(3) Relief?'

3. The issue as to the appellants' being the legal representatives of the deceased Harnam Singh was not challenged and in view of this it was found that they as the legal representatives of Harnam Singh were bound by the decree. It was only the second issue that has been the subject-matter of contest in the proceedings in the lower Courts as well as in this Court The executing Court upheld the contention of the appellants and came to the conclusion that the application for execution was barred by limitation in which according to the finding of the trial Court the starting point of limitation was the date of first instalment for giving of grain in the month of Jeth following the decree, i.e. in June, 1947.

The application dated 22nd June, 1955 was, therefore, held to be barred by limitation. The application was consequently dismissed but no order was passed as to costs. Against the above order of the Subordinate Judge 2nd Class, Dasuya, dated 17th April, 1956. Shrimati Atti filed an appeal in the Court of the Senior Subordinate Judge at Hoshiarpur which was allowed. The Senior Subordinate Judge held that under Article 182 (7) of the Indian Limitation Act the execution application is within time and supported his finding with reference to a ruling of Privy Council in Maung Sin v. Ma Tok 101 Ind Cas 736: (AIR 1927 PC 146) (A), and Ainul Haq Khan v. Mt Nawaban, AIR 1939 Oudh 281 (B).

It was held that Shrimati Atti need not have enforced her right to get grain for her maintenance twice a year. The appeal was allowed and the order of the trial Court was reversed and it was held that the execution application in question would proceed and the decree-holder would be entitled to obtain possession of the land in terms of the decree. Parties were ordered to bear their own costs throughout. In this Court the appellants have come up in appeal seeking reversal of the judgment of the Senior Subordinate Judge and restoration of the order of the trial Court.

4. I have heard the parties' learned counsel. Mr. K. L. Jagga appearing on behalf of the appellants, had raised three arguments. His first argument is that Art 182 (7) of the Indian Limitation Act is inapplicable to the facts of this case because according to the terms of the decree the judgment-debtor was required to deliver goods, i.e., grain, twice a year and not to make any payment of money. He wants me to read the words

'where the appeal is to enforce any payment which the decree or order directs to be made at a certain date such date,'

to refer to payment in cash and not to payment in kind. He has not referred me to any authority in support of this restricted meaning of the word 'payment'. According to the Oxford English Dictionary the word 'payment' has among others, the following meaning:--

'The remuneration of a person with money or its equivalent; a sum of money (or other thing), pay.'

Similarly the word 'pay' has also the following sense:--

'to give, deliver or hand over (money, or some other thing) in return for goods or service, or in discharge of an obligation.'

'Pay' also means 'to give money or other equivalent in return for something or in discharge of an obligation.' In an American publication, words and Phrases, Permanent Edition, Volume 31, at pages 483 and 484, the following instances ' are given where the term 'payment' is used in the larger sense in being not only in cash but also in kind.

'Anything of value delivered by debtor and accepted by creditor in discharge of debt will constitute payment. Smith v. Mills, 230 P. 350 (353): 112 Order 496 (C). Anything of value given by debtor and accepted by creditor may, by parties' agreement constitute 'payment.' Rev Codes 1921, Section 7429. Gallaher v. Theilbar Realties, 18 P. 2d 1101 (1103): 93 Mont. 421 (D). 'Payment' is made by the debtor delivering to the creditor money or some other valuable thing to extinguish the debt, which is received by the creditor for the same purpose. Persons v. Gardner, 106 NYS 610 (616, 619): 122 APP Div 167 (E). 'Payment' implies a discharge of the obligation according to its terms, or by something given and received of agreed value equal to the debtor or liability. J F. Morgan Paving Co. v. Carroll, 99 So 640 (641): 211 Ala 121 (F).

Payment made be in any mode which the parties agree shall be treated as the equivalent of a money payment, it may be by means of anything of value which by mutual consent is given and accepted on account of or in satisfaction of the debt. Blair v. Harris, 42 NW 790 (794): 75 Mich 167 (G); Weir v. Hudnut, 18 NE 24 (25): 115 Ind 525 (H).'

5. The above makes it clear, that the word 'payment' has no narrow technical legal meaning restricted to payment of money. It signifies satisfaction of a claim and in this case, the decretal claim. It is the policy of law that Article 182 should receive a fair and liberal and not a technical construction so as to enable the decree-holder to reap the fruits of his decree. It will not be in consonance with the principles or just interpretation, to strain the language of Article 182 in favour of a judgment-debtor who has not paid his just debt. This view has been expressed in several authorities, among others, in Akshoy Kumari Debi v. Nalini Ranjan Mukherjee, AIR 1950 Cal 493: 54 Cal WN 815 (I), and Annapurnamma v. Venkamma, AIR 1938 Mad 323 (J).

Justice ought not to be allowed to be defeated by technicalities of the nature referred to in the above argument, advanced on behalf of the appellants, who wished to deprive their widowed sister-in-law of her legitimate maintenance for obtaining which, she was compelled to go to a Court of law and got a decree. The appellants cannot put a premium on the fact that as they had failed to supply the grain to her in the previous years, that conduct of theirs should become a justification for permanently depriving the respondent of her livelihood.

6. The next argument of Mr. Jagga is equally ineffective. His contention in brief is, that Article 182 contemplates cases where the decree contemplates payment in instalments of the decretal amount and in default the entire amount of money becomes payable. He says, that in this case, the decree provides for supply of grain twice a year on instalment basis and in default it orders possession of land. Mr. Jagga thinks that such a decree is of a novel character and for its execution there is no provision under Article 182 of the Indian Limitation Act. There is no substance in this contention. In Muhammad Islam v. Muhammad Ahsan, ILR 16 All 237 (K), the decree was for possession of immovable property, but its execution was contingent on default being made by the judgment-debtor in the payment year by year of a certain annuity to the decree-holder.

In that case too it was held that the decree-holder was not obliged to execute such decree once and for all upon the occurrence of the first default, and might be executed on any such subsequent default. The decree in Har Gopal v. Ram Rachhpal, ILR 2 Lah 155: (AIR 1921 Lah 42) (L), was of a similar nature. In that case the appellant had obtained a decree against the respondents for Rs. 370/- payable in annual instalments of Rs. 25/-, which provided, that in default of payment of the whole or part, the judgment-debtors would put the decree-holder in proprietary possession of 5 bighas 4 biswas of land. In that case no instalment had been paid under the decree for a period of nine years, and the decree-holder applied to be put in possession of the land.

The High Court of Lahore held that it was not, intended that the option given to the decree-holder of obtaining possession Of the land on a default being made in payment, was to be exercised only on the occurrence of the first default. The decree-holder was entitled to apply for delivery of possession on the occurrence of any subsequent default and the application was consequently held to be within time. In ILR 5 Rang 422: 101 Ind Cas 736: (AIR 1927 PC 14(6) (A), the facts were that in 1916 the respondent had obtained against the appellant, who was her husband, a decree in terms of an award.

The decree provided that certain properties would remain in the possession of the husband who will pay to the plaintiff (wife) annually the sum of Rs. 2,000/- in the month of Kason, on default of payment of the same (Rs. 2,000/- annually) the said properties will be made over to the plaintiff (wife)'. No payments had been made for 1923 and 1924. In 1924 an application was made by the wife to execute her decree in respect of the amounts and also she asked for delivery of possession of the properties on the default so made. The Privy Council, agreeing with the High Court at Rangoon, held that she was entitled to execute the decree for the two annual instalments, and also for the possession of the properties referred to in the decree.

Upon the true construction of the decree, in the view of their Lordships of the Privy Council, each instalment as it fell due was a claim originating under the decree from the date when such) claim arose, and to which the provisions of Clause 7 of Article 182 of the First Schedule of the Indian Limitation Act applied. In the light of the above authorities it is futile for the appellants to contend that Article 182 (7) is not applicable, or, that the execution application is barred by time.

7. Lastly it was contended by Mr. Jagga that the only Article which was applicable was Article 181 and he referred me to a Division Bench judgment of the Allahabad High Court, Mt. Bhagwati v. Sant Lal, AIR 1946 All 360 (M). That was a case of a preliminary mortgage-decree for sale, providing, that the decretal amount would be paid in instalments and in case of nonpayment of any three instalments the entire unpaid amount would be payable in a lump sum. It was held in that case that the expression 'when the right to apply accrues' means 'when the right to apply first accrues'. This authority having regard to the facts of this case, has no applicability.

8. The result of the above discussion isthat the contention of judgment-debtors-appellants is unsound and I hold that the executionapplication of Shrimati Atti respondent is within limitation under Article 182 (7) of First Schedule of the Indian Limitation Act. The appealof Shrimati Parmeshri and others is dismissedwith costs throughout.


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