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Firm Daulat Ram Vidya Parkash Vs. Sodhi Surbaksh Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H213
AppellantFirm Daulat Ram Vidya Parkash
RespondentSodhi Surbaksh Singh and anr.
Cases ReferredIn Durga Pal Singh v. Pancham Singh
Excerpt:
.....pro forma defendants. the well known legal maxim that the act of a court shall prejudice no one has been relied upon. 2432 it is clearly stated that where a decree holder recovers in execution, money in excess of what is due to him or to his share or in excess of the decree as amended later on, an application by the judgment-debtor under section 47, civil p. it may well have been discovered a considerable time before the application was actually made. ,in which it is stated clearly that section 48, civil p......could not be attached or sold in the execution of the said decree. during the pendency of this suit an application was made for stay of the sale of the property and notices were issued to the decree-holders to show cause why the stay should not be allowed. the decree-holders appeared in court and filed an affidavit in which they alleged that they were entitled to interest and to security for the depreciation of property. tek chand, j. before whom the application for stay came up for consideration on 12th august 1933 made an order to the effect that the sale of the property should be stayed pending the hearing of the appeal on the sons of the judgment-debtors furnishing security in a sum of rs. 3000 to cover future interest and depreciation if any in the value of the property. one.....
Judgment:

Bhandari, J.

1. The question which falls to be determined in this first appeal is whether the decree-holder is entitled to claim future interest on a personal decree obtained by him even though the said decree does not authorise the claiming of future interest. It appears that on 13th February 1928, the Board of Foreign Mission of the Presbyterian Church in the United States of America obtained a preliminary decree under Order 84, Rule 4, Civil P.C., for the recovery of a sum of Rs. 11,095 on account of principal and interest and Rs. 967-7-0 as costs. Future interest was allowed at the rate of Rs. 1-8-0 per cent, per mensem from the date of the institution of the suit till the date of realisation of the decree. The amount was to be deposited in Court by 14th May 1928. The amount was not deposited on the due date and on 28th August 1928 the preliminary decree was converted into a final decree. The property on which the loan was secured was brought to sale and fetched a sum of Rs. 7125. On 28th January 1930 the decree, holder obtained a personal decree under the provisions of Order 34, Rule 6, for the recovery of a sum of Rs. 8385-7-8 plus Rs. 39-10-0 as costs. On 22nd August 1930 the original decree-holder assigned the decree to Messrs. Daulat Ram Vidya Praksh of the Ferozepore District. On 31st August 1942 the decree which had been passed by a Court at Ludhiana was transferred for execution to a Court at Ferozepore. During the course of the execution proceedings the judgment-debtors raised the objection that the decree could be executed to the extent of Rs. 8385-7-8 plus Rs. 39-10-0 as costs. It was alleged that no future interest had been allowed by the Court granting the personal decree and consequently that no future interest could be realised from the judgment-debtors. The executing Court concurred in the contention of the judgment debtors. The decree-holders are dissatisfied with the order of the executing Court and have come to this Court in first appeal.

2. It will be seen that the decree which was passed under the provisions of Order 34, Rule 6, Civil P.C., was not passed in accordance with the form prescribed in Form 8 appearing in Appendix D to Schedule 1, Civil P.C. The decree was in the following terms:

This suit coming on this day for final disposal before me, Fakir Sayad Said-ud-din, Sub-Judge, First Class, Ludhiana, in the presence of Mr. Kalwant Rai, Advocate for the plaintiff and in the absence of the defendant who did not appear though served and against whom the decree is ex parte, it is ordered that the defendants do pay to the plaintiffs the sum of Rs. 8385-7-8 only and do also pay Rs. 39-10-0 the costs of this suit. The defendants are personally liable for the amount of the decree and costs of the application.

Mr. N.L. Wadhera who appears for the decree, holders contends that this decree must be deemed to be not only for the sums mentioned therein but also for future interest at the rate of Re. 1-8-0 per cent, per mensem. He has given five reasons in support of his contention, namely: (1) that future interest is specifically mentioned in the preliminary decree on which the personal decree is based; (2) that future interest has been specifically provided for in the final decree; (3) that in the order granting the personal decree the amount of the decree included future interest till the date of the decree and it must accordingly be assumed that the intention of the Court awarding the decree was to grant future interest as provided for in the preliminary and the final decrees; (i) that the personal decree for the sum of Rs. 8385-7-8 included interest upto the date of the passing of the personal decree; and (5) that the High Court has already adjudicated upon this matter by allowing future interest to the decree-holder. It is said that during the course of the execution proceedings the sons of the judgment-debtors filed the usual suit for a declaration that the decree obtained by the decree-holders was not binding upon them as the debt was tainted with immorality. The sons of the judgment-debtors later applied for the stay of the sale of the property in respect of which the declaratory suit had been brought. Tek Chand, J. before whom the application came up for consideration directed that the sale be stayed on the condition that the plaintiffs, applicants, i.e., the sons of the judgment-debtors, furnished security for future interest and depreciation of property.

3. The law in regard to the execution of decrees has been stated with admirable clarity by the learned author of Chitaley's Commentaries on the Code of Civil Procedure. In Note 8 to Section 38, the learned author observes as follows:

An executing Court cannot go behind the decree. In other words, the jurisdiction of the Court executing a decree must be determined with reference to and is circumscribed by the directions contained in the decree. It has no power to go behind it or question its legality or correctness. This is based on the principles that a proceeding to enforce a judgment [is collateral to the judgment,] and, therefore, no inquiry into its regularity or validity can be permitted in such a proceeding. It follows that the executing Court must execute the decree as it stands and according to its terms. It cannot enter into a criticism of the decree, or give relief against its rigour, or add to or alter the decree even in the light of subsequent events, or correct errors, or grant a relief not contemplated by the decree, such as allowing costs or interest or mesne profits, or question the right of the person whoso name is on the record to execute the decree. Nor can it go into the question whether the decree was a valid one.

4. Judged in the light of these principles, it seems to me that the decree-holder cannot ask for the execution of the decree in excess of a sum of Rs. 8385-7-8 plus a sum of Rs. 39.10-0.

5. The learned Counsel for the decree-holders admits the correctness of the proposition that it Sis not within the competence of an executing Court to go behind a decree, but he contends that the decree that has been passed in this case makes it quite clear that the decree impliedly contains a provision for the realisation of future interest at the stipulated rate. He invites my attention to certain authorities such as Dwarka Prasad v. Umrao Mohammad ; Rajkumar v. Bisheshar Nath 16 All. 270 and Gokuldas v. Ghasiram 35 cal. 221. The Oudh case endeavours to interpret the provisions of Rule 4 of Order 34, Civil P.C. In this case, the preliminary decree directed the payment of future interest upto the date of realisation. The lower Court declined to allow interest subsequent to the date of the passing of the final decree on the ground that the final decree did not allow any interest after the time fixed in the decree. The learned Judges of the Chief Court held that the lower Court was wrong in disallowing such interest as it was not necessary that a specific mention should be made in the final decree of such interest and that the decree-holders were entitled to a further sum by way of post diem interest upto the date of realisation. In the course of their order, the learned Judges observed that the duty of a Court passing a final decree for sale is, in the first place to order the sale, and in the second to direct that the proceeds shall go to the satisfaction of the preliminary decree. It is not enacted that the final decree shall be read by itself and executed as such.

6. The observations of the learned Judges have provided an argument to Mr. Wadhera to put forward the contention that just as a final decree is a continuation of the preliminary decree, a personal decree is a continuation of the final and the preliminary decrees. He contends that as a preliminary decree is the basis of the final decree, similarly a preliminary decree is the basis of the personal decree. As there is no difference in principle between a final decree passed under the provisions of Rule 4, and a personal decree passed under the provisions of Rule 6, it is the duty of the Court dealing with the execution of a personal decree to have regard to the provisions of the preliminary decree. If, therefore, the preliminary decree states in specific terms that future interest would be allowed to the decree-holders, it is the duty of the executing Court to give effect to that provision and to construe the personal decree as if it contained a similar provision for payment of future interest. The inference that the Court granting the personal decree to the decree-holder in this case did intend to award future interest to him is clear from the fact that future interest was in fact included in the sum of Rs. 8385-7-8 for which the decree was granted.

7. The authority reported as Dwarka Prasad v. Umrao Mohammad A.I.R. 1981 Oudh 47 does not appear to be relevant to the decision of this case. In the first place, there is no analogy between a final decree and a personal decree. The expression 'decree' as defined in Section 2(2) means the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Where an adjudication decides the rights of the parties with regard to all or any of the matters in controversy in the suit but does not completely dispose of the suit, it is a preliminary decree. Where it completely disposes of the suit, it is a final decree. In other words, a preliminary decree is passed in cases in which the Court has first to adjudicate upon the rights of the parties and then to stay its hand for such time as it is in a position to pass a final decree in the suit. If a final decree is only a later stage of a preliminary decree it is obvious that it is the duty of the Courts to have a look at the preliminary decree with the object of construing the final decree. A personal decree on the other hand, stands on a completely different footing. Rule 6 of Order 84 empowers a mortgagee by way of application to obtain a personal decree against the mortgagor where the net proceeds of any sale are found insufficient to pay the amount due to him after the mortgaged property is sold. It can be granted only after the sale has been carried out and the deficiency ascertained. The expression 'amount due' appearing in the rule means the amount for the recovery of which a decree for sale has been previously passed. Prima facie, therefore, a personal decree can be passed only for the amount due to the mortgagee after the mortgaged property has been sold and the sale price has been paid to him. A personal decree is obviously a money decree and the realisation of interest on the basis of that decree is regulated by the provisions of Section 84, Civil P.C. Sub-section (1) of that section confers discretionary powers on a Court to allow or not to allow future interest on the amount awarded in the decree. Sub-section (2) declares that where the decree does not provide for interest it will be deemed to have been refused. As the personal decree passed in the present case is completely silent with respect to the payment of future interest, the claim for the grant of future interest must obviously be rejected. Secondly, it is obvious that not only did the Court fail to make a provision in regard to future interest but it actually decided to disallow future interest. Form No. 8 appearing in App. D to which a reference has already been made contains a provision in regard to the payment of future interest. It is paid that the words in regard to future interest were deliberately scored through by the original Court and the word 'only' was added after the amount of the decree. These two facts, it is argued, make it quite clear that the intention of the original Court was only to grant a decree for the amount mentioned in the decree itself and not to grant a decree for the payment of future interest. Thirdly, it is contended that even if it were assumed for the sake of argument that it was the duty of the original Court to award future interest and the Court erred materially in failing to award such interest, it was the duty of the decree-holder to prefer an appeal from the order of the Court passing that decree; it is not open to him to invoke the assistance of the executing Court for rectifying a mistake which could have been corrected by the appellate Court alone.

8. There is another point to which Mr. Gujral attached a certain amount of importance. He invites my attention to the preliminary decree the material part of which is in the following terms:

I, therefore, give plaintiffs a preliminary decree ex parte against defendants for the sale declaring that the amount due on the mortgage up to 7th January 1928, the date of institution of the suit, was Rs. 11,095, that this amount together with the costs of the suit and interest at Re. 1-8-0 per cent. per mensem which shall continue to run on the principal Rs 9537 from the date of institution of the suit till date of payment, shall be deposited by the defendants into Court for payment to the plaintiffs on or before 14th May next but if that payment is not made, the mortgaged property or a sufficient portion of it shall be sold. Decree to be drawn up in the prescribed form.

It is contended that interest allowed by the trial Court was to run from the date of institution of the suit to the date of payment of the amount. The expression 'date of payment' can mean either the date on which the amount was to be deposited into Court in accordance with the terms of the decree or the date on which the amount was actually paid by the judgment-debtor. In the first case the date would be 14th May 1928 as mentioned in the decree; in the other case, the date would be the actual date on which the judgment-debtor actually pays the decretal amount. Mr. Gujral invites my attention to Krishna Tekait v. Surendra Mohan A.I.R. 1921 Pat. 352 in which the Court was called upon to construe the words 'day of realisation' appearing in a preliminary mortgage decree. The Court came to the conclusion that these words should be interpreted to mean the date of the expiry of the period of grace. This interpretation makes it quite clear that the preliminary decree in the present case allowed interest to the decree-holders only for the period commencing with the date of the institution of the suit and ending with 14th May 1928.

9. A plea of res judicata has also been raised. It appears that shortly after the trial Court had decreed the claim of the plaintiffs the sons of the judgment-debtors brought a suit for a declaration that the decree was not binding upon them and that the land could not be attached or sold in the execution of the said decree. During the pendency of this suit an application was made for stay of the sale of the property and notices were issued to the decree-holders to show cause why the stay should not be allowed. The decree-holders appeared in Court and filed an affidavit in which they alleged that they were entitled to interest and to security for the depreciation of property. Tek Chand, J. before whom the application for stay came up for consideration on 12th August 1933 made an order to the effect that the sale of the property should be stayed pending the hearing of the appeal on the sons of the judgment-debtors furnishing security in a sum of Rs. 3000 to cover future interest and depreciation if any in the value of the property. One Amar Singh stood surety for the sons. On 3rd May 1935 the Senior Subordinate Judge made an order requiring the surety to pay a sum of Rs. 1835-18-0 as interest from 7th November 1933 to 12th October 1934 when the appeal was dismissed. The surety appealed to the High Court but the appeal was dismissed in limine. It is contended that the order of Tek Chand J, dated 12th August 1933, the order of the Senior Subordinate Judge dated 3rd May 1935 and the order of the High Court dismissing the appeal in limine operate as constructive res judicata so far as the question of future interest is concerned. This contention appears to me to be wholly devoid of force. Section 11, Civil P.C., provides that no Court shall try any suit or issue in Which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The claim of the decree-holders to the effect that there is constructive res judicata in this case is, in my opinion, wholly untenable. In the first place, the judgment-debtors cannot be said to have been a party to the application for stay which was presented by their sons and was designed to prevent the decree-holders from bringing the property to sale. They were at best pro forma defendants. It has been held repeatedly that there can be no issue between pro forma defendant and the other parties to the suit. A finding, therefore, in such a suit is not binding on him as res judicata in a subsequent suit between him and the other parties. Secondly, the question as to whether future interest is or is not payable by the judgment-debtors was not a point directly and substantially in issue between the same parties. An application was undoubtedly filed for stay of proceedings but this application was decided summarily. The decree-holders asked for security for future interest and for depreciation of property but the petitioners did not object and the usual stay order was passed. There was, in my opinion, no contest whatever between the parties. In the circumstances, I find it somewhat difficult to hold that the matter in issue in the present case was directly and substantially in issue between the decree-holders on the one hand and the judgment-debtors on the other. As far as the proceedings in the Court of the Senior Sub Judge were concerned, those proceedings were only between the decree-holders on the one hand and the surety on the other. There is, in my opinion, no substance whatever in the plea of constructive res judicata.

10. This brings me to the consideration of the cross appeal which has been presented on behalf of the judgment-debtors. Three points have been urged before me in Court to-day. The first is that although a personal decree was passed against the judgment-debtors in sum of Rs. 8385-7-8 on account of the balance and Rs 89-10-0 on account of costs making a total of Rs. 8425-1-8, the decree-holders were able to recover a sum of Rs. 9759 In other words, the decree holders re-covered a sum of Rs. 1333 in excess of the amount to which they were entitled. The executing Court declined to refund this amount to the judgment-debtors on the ground that although the excess amount had been realised long before 7th December 1936, the application for refund was not made till 18th February 1946. Mr. Gujral admits that the application was filed long after the expiry of the period of limitation prescribed by Article 181, Limitation Act, but he contends that this is not a case in which the provisions of that article ought to apply. He invites my attention to certain authorities in which it has been laid down that the provisions of the Limitation Act do not apply when a mistake has been committed by the Court itself. The well known legal maxim that the act of a Court shall prejudice no one has been relied upon. In Ratnaji Chandanmall v. K. Ramakrishnayya A.I.R. 1937 Mad. 95, it was held that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors. It was held further that this statement of law is general enough to cover a case where the executing Court has been made to take a wrong step by an erroneous decision passed by another Court.

11. In Palaniappa v. Ramanathan Chettiar A.I.R. 1934 Mad. 320 it was held that quite apart from Section 144, Civil P.C., it is a power inherent in the Court and a duty laid upon it, to accord restitution in any case, where money has been improperly drawn out under a decree. These rulings are, in my opinion, inapplicable to the facts of the present case. In Chitaley's Commentary on the Law of Limitation, p. 2432 it is clearly stated that where a decree holder recovers in execution, money in excess of what is due to him or to his share or in excess of the decree as amended later on, an application by the judgment-debtor under Section 47, Civil P.C., for the refund of such excess amount is governed by Article 181. According to this Article, the period of limitation commences from the date the right to apply accrues. Now, the right to apply in the case of a mistake accrues on the date on which the mistake is discovered. It is alleged in the present case that the judgment-debtors discovered their mistake on. 18th February 1946 i.e., the date on which they made their application for the refund of money. I find it somewhat difficult to accept this statement as gospel truth. There is no allegation in the application itself that the mistake was discovered that day. It may well have been discovered a considerable time before the application was actually made. My finding, therefore, is that the claim for the recovery of the excess amounts paid by the judgment-debtors is barred by time.

12. The next point for determination in this case is whether the sum of Rs. 1335-13-0 which was recovered for Amar Singh surety during the pendency of the case brought by the sons of the judgment-debtors against the decree-holders ought to be allowed to be deducted by the judgment-debtors. The amount was recovered by the decree-holders for the person who had stood surety for the payment of future interest. The judgment-debtors were not a party to that litigation or, if they were, they were only pro forma defendants. The surety cannot demand any money from them in respect of the payment made by him to the decree-holders. It seems to me, therefore, that the claim put forward by the judgment-debtors for adjustment of that amount towards the decree is wholly untenable. The cross appeal of the judgment-debtors must, in my opinion, be dismissed with costs and I would order accordingly.

13. With reference to the appeal which has been preferred by the decree-holders an objection has been raised to the effect that the application for execution is barred by the provisions of Section 48, Civil P.C. This section provides that where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiry of twelve years from the date of the decree sought to be executed. The decree in this case was passed on 25th January 1930. The present application was made on 16th April 1943. Prima facie, therefore, the application for execution is barred by time. It appears, however, that the judgment-debtors approached the Debt Conciliation Board for the settlement of the debt. Their application under the provisions of the Punjab Relief of Indebtedness Act, 1934, was pending before the said Board from 19th October 1938 to 24th June 1910, i.e., for a period of one year eight months and five days. This period must be excluded from consideration under the provisions of Section 26, Punjab Relief of Indebtedness Act, 1934. This section declares that the time spent in proceedings before a Conciliation Board and time during which a person is debarred from suing or executing his decree under the provisions of the statute shall be excluded when counting the period of limitation for any application, suit or appeal. Prima facie, this section would apply to the facts of the present case and would bring the application for execution within the period prescribed there for by Section 48, Civil P.C.

14. My attention, however, has been invited to Ganeshi Lai v. Imtiaz Ali. , in which it is stated clearly that Section 48, Civil P.C., contains an unqualified prohibition, subject to exceptions contained in Clause (2) thereof, against execution of certain kinds of decrees more than twelve years old and is not controlled by Section 15(1), Limitation Act, 1908. Consequently, an application for execution of a decree stayed by an injunction or order of Court filed after twelve years from the date of the decree cannot be saved from the bar under Section 48 of the Code by excluding under Section 15(1) of the Act the time during which execution was stayed. At p 351, the learned Judges observed that the period mentioned in Section 48 is not a period of limitation in the strict sense of the word, and consequently Section 15(1), Limitation Act, is not applicable thereto. In Jagmohan Terwari v. Mahadeo Prasad A.I.R. 1932 Oudh 220 it was held that it is the Limitation Act (and not Section 48) which prescribes a period of limitation for execution of decrees. Section 48 only fixes an outside period after which execution of a decree, though not barred by limitation, may not be granted. These authorities have, however, been more or less superseded by certain other rulings such as Durga Pal Singh v. Pancham Singh : AIR1939All403 , Rango Ramachariya Katti v. Gopal Narayan A.I.R. 1939 Bom. 75 and Kalyanasundaram Pillai v. Vaithilinga A.I.R. 1939 Mad. 270. In Durga Pal Singh v. Pancham Singh : AIR1939All403 , a Full Bench expressed the view that the provisions of the Civil Procedure Code are subject to the provisions of the Limitation Act as both Acts are general Acts and are in pari materia. It was held further that the general provisions of Section 15, Limitation Act, are intended to apply to periods of limitation prescribed in the Civil Procedure Code, and are not confined in their operation to periods prescribed by the Limitation Act or by Schedule I. Section 48, Civil P.C., does prescribe a period of limitation and consequently Section 48 is not uncontrolled by the provisions of Section 15, Limitation Act. In other words, Section 48 of the Code does not impose a complete bar to the execution of a decree after the expiry of the period of twelve years, irrespective of the provisions of Section 15, Limitation Act. Section 26, Punjab Relief of Indebtedness Act, 1934, has been drafted on the lines of Section 15, Limitation Act, and the arguments which extend the period of limitation as prescribed by Section 48, Civil P.C., by virtue of the operation of Section 15, Limitation Act, would, in my opinion, apply equally in relation to the provisions of Section 26, Relief of Indebtedness Act. This section declares that the time spent in proceedings before a Conciliation Board and time during which a person is debarred from suing or executing his decree under the provisions of the said Act shall be excluded when counting the period of limitation for any application, suit or appeal. I have accordingly no hesitation in holding the view that the present application is not barred by time by reason of the operation of Section 48, Civil P.C.

15. For these reasons, I would uphold the order of the lower appellate Court and dismiss both the appeals with costs.


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