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Gopal Chand Bhalla S/O Hira Lal Vs. Gobind Sarup S/O L. Ram Chand and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberExecution Second Appeal No. 468 of 1956
Judge
Reported inAIR1959P& H193
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48(1)
AppellantGopal Chand Bhalla S/O Hira Lal
RespondentGobind Sarup S/O L. Ram Chand and anr.
Appellant Advocate H.R. Sodhi, Adv.
Respondent Advocate H.L. Sarin, Adv.
DispositionAppeal dismissed
Cases ReferredKirtyanand Singh v. Prithi Chand Lal
Excerpt:
.....the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of..........did not pay up the stipulated amount and an application for execution was again taken out by the decree-holder on 31-7-1951. gopal chand judgment-debtor preferred objections under sections 47 and 60 of the code of civil procedure. for the second time the parties entered into a compromise on 24-11-1951 in the executing court, the result of which was that the amount of instalments payable was raised from rs. 30/- to 40/- per month.the last execution application was taken up on 13-11-1954 and this was in respect of future interest. the decree-holder claimed that he was entitled to a sum of rs. 1,128-10-0 in respect of future interest and was entitled to execute the decree as the same had not been paid. the judgment-debtor raised various objections on which the following issues were framed.....
Judgment:

A.N. Grover, J.

1. This appeal arises .out of certain execution proceedings. On 25-3-1951, Gobind Sarup obtained a decree against Gopal Chand and Jaswant Kumar for a sum of Rs. 1,414/- with costs and future interest at the rate of 6 per cent per annum. Execution was taken out and during execution proceedings the parties entered into a compromise in 14-5-1949. The judgment-debtors agreed to pay the decretal amount by instalments of Rs. 30/- per month.

It seems that the judgment-debtors did not pay up the stipulated amount and an application for execution was again taken out by the decree-holder on 31-7-1951. Gopal Chand judgment-debtor preferred objections under Sections 47 and 60 of the Code of Civil Procedure. For the second time the parties entered into a compromise on 24-11-1951 in the executing Court, the result of which was that the amount of instalments payable was raised from Rs. 30/- to 40/- per month.

The last execution application was taken up on 13-11-1954 and this was in respect of future interest. The decree-holder claimed that he was entitled to a sum of Rs. 1,128-10-0 in respect of future interest and was entitled to execute the decree as the same had not been paid. The judgment-debtor raised various objections on which the following issues were framed :

1. Is the execution application barred by time?

2. Is the decree-holder not entitled to claim interest?

3. Is the salary of the judgment-debtor exempt from attachment as alleged?

4. What is the effect of the statement dated 24-11-1951 made in the previous execution application?

5. What amount is due to the decree-holder?

6. Is the present execution application irregular and defective?

7. Is the decree-holder estopped from claiming interests?

8. Relief.

2. The executing Court dismissed the application as having been fully satisfied. But in appeal the learned District Judge set aside the order of the executing Court and held that the decree-holder was entitled to execute the decree. The judgment-debtor is dissatisfied with the order of the learned District Judge and has comet to this Court in execution second appeal.

3. The first and the important question that has been raised by Shri Hans Raj Sodhi on behalf of the appellant relates to issue No. 1. His argument is mat the execution application ought to have been held to be barred by time, ft is contended by him as was contended in the Courts below that the execution application was made after a lapse of more than 12 years from the date of the decree and, therefore, it was barred under the provisions of Section 48 of the Code of Civil Procedure.

The question to be seen is whether the compromise which was effected on 24-11-1951 affected the bar created by Section 48. It would be useful to refer to the compromise which took place on 24-11-1951. Gopal Chand judgment-debtor made a statement to the following effect;

'I have compromised with the decree-holder in these terms. The balance of the decree will be paid in instalments of Rs. 40/- per month. In case of default in paying two instalments the decree-holder will be entitled to recover the balance by attachment of my pay. I give up the objection petition. I have already paid Rs. 385-2-0 which may be given credit for.'

(4) The decree-holder Gobind Sarup made a statement to the following effect:

'I have heard the statement. Instalments may be fixed and Rs. 385-2-0 may be given credit for to the judgment-debtor.'

5. The Court made an order thereupon to the following effect:

'The balance of the decree will be paid in monthly instalments of Rs. 40/-. In case of default of payment of two instalments the balance will be realizable in lump sum according to law. The first instalment will be paid on 24-12-1951, The objection petition will stand dismissed. The execution application will be consigned to the record room as partly satisfied to the extent of Rs. 385-2-0.'

6. The decree-holder can get over the bar of limitation created by Section 48 only if the case can be brought within the ambit of Section 48(1)(b) of the Code of Civil Procedure which runs as follows :

(1) 'Where an application to execute a decreenot being a decree granting an injunction has beenmade, no order for the execution of the same decreeshall be made upon any fresh application presentedafter the expiration of twelve years from -

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

7. The question at once arises as to whether the order made by the executing Court on 24-11-1951 can be regarded to be a 'subsequent order' within the meaning of the aforesaid provision. The learned District Judge thought that the 'subsequent order' referred to is the one contemplated by Order 20, Rule 11(2). According to him 'The Court' contemplated by Sub-rule (2) is the same which is referred to in Sub-rule (1) of Order 20, Rule 11.

He, therefore, came to the conclusion that as the order dated 24-11-1951 was passed by Shri Barlow who has succeeded Mr. Sodhi who had passed the decree, all the necessary conditions were satisfied and the decree-holder could invoke the assistance of Section 48(1)(b) which gives a fresh period of limitation.

8. Mr. H.R. Sodhi has largely relied on a Division Bench judgment of the Lahore High Court in Zaheer-ud-Din v. Mt. Amtur Rasheed, AIR 1944 Lah 106. Head note (b) states that a 'subsequent order' which is not passed in the suit in which the decree was made but by the execution Court does not fall within the ambit of Section 48(1)(b). In that case the decree had been passed in favour of Lachhu Mal in March 1923.

Several execution applications were filed by the decree-holder and during the pendency of the fifth application the matter was compromised between the parties. The judgment-debtor agreed to pay the decretal amount by Instalments and through security. The Court passed an order to the effect that according to the statements of the parties based on a compromise the records should be consigned to the record room.

Later on more applications were filed which were consigned to the record room. Among other contentions, an argument was raised that the order of the Court which embodied and gave effect to the compromise must be taken to be an order passed in accordance with the Section 48(1)(b) which gives rise to a fresh period of limitation. Abdur Rahman J. based his decision largely on the order which was made in pursuance of the compromise. On page 109 he observed as follows :

'If I read it correctly, it does not direct any payment of money at a certain date or at recurring periods although it does take notice of and refers to the compromise between the parties arrived at on that date. If therefore, the order does not direct the payment of money, it cannot be held to fall within the purview of Section 48(1)(b), Civil P. C., and cannot give rise to a fresh starting point of limitation. In the absence of any direction by the Court to the parties to receive and pay the money in accordance with the fresh contract arrived at between them, the order passed on 12-12-1927 cannot be, in my opinion, construed so as to contain a direction in regard to the payment of money at any date different from what was provided by the decree.'

The learned Judge distinguished the earlier decision in Banarsi Das v. Ramzan, AIR 1923 Lah 381 of Shadi Lal, C. J. and Fforde J. The distinction pointed out was that in the earlier case there was a direction to the decree-holder to act on the new contract under which the decretal amount was to be received by him by half yearly instalments of Rs. 50/- each. This direction was different from what was contained in the decree and was considered sufficient to bring it within the meaning of Section 48(1)(b).

Similarly the decisions in D. S. Apte v. Tirmal Hanmant, ILR 49 Bom 695; (AIR 1925 Bom 503) and Hirday Mohan Sanyal v. Khagendra Nath, ILR 57 Cal 789: (AIR 1929 Cal 687) were considered to be of no help as in those cases 'subsequent orders' were defined to have been passed under Section 48(1)(b). Then followed the observations on which the head note was based and on which Mr. Sodhi has mainly relied.

It is quite clear that the order which had been made by the executing Court in the case before the Lahore High Court Bench was very different from the one which has been made in the present case. As has been seen above, the executing Court passed an order which was quite similar to the order made in the case decided by Shadi Lal, C. J., and Fforde J. in the earlier Bench decision.

Harries C. J., and Abdur Rahman J. in the later Bench decision did not dissent from the views expressed in the previous case which was based, if I may say so with respect, on very sound reasons. For all these reasons the decision in AIR 1944 Lah 106 cannot be of much assistance to Mr. Hans Raj Sodhi in the present case. Apart from the earlier decision of the Lahore High Court there are several decisions of other High Courts which take the same view.

9. In AIR 1925 Bom 503, it has been held that the words 'any subsequent order' must not be limited as if the words 'by the Court which passed the decree' were there, but mean any order made by a competent Court, and an order made by a Court executing a decree allowing a judgment-debtor time to pay up the balance of the decretal money by instalments is a subsequent order within the meaning of S, 48 and gives a fresh period to the decree-holder to execute his decree.

In Jitendra Nath v. Heramba Chandra Roy, AIR 1945 Cal 154, the same rule was accepted namely that the words 'subequent order' in Section 48(1)(b) were not restricted to order of the Court which passed the decree but included order of the executing Court. Hidayatullah J. in Deorao Suryabhanji v. Ramchandra Amrutlal, AIR 1948 Nag 272 was of the view that a 'subsequent order' can be passed by both the original Court as well as the executing Court.

10. The view of the Sind Court is expressed in Ali Muhammad v. Gangaram Chatoma AIR 1939 Sind 93, according to which the words subsequent order' in Section 48(1)(b) show that the order must be subsequent to the decree. Hence the order which the Section contemplates must be passed not in the suit but in execution.

But where the parties, keeping the decretal liability unaltered, enter into a compromise by which the method of satisfying the decree is changed and the executing Court by its order records the compromise and directs the parties to act upon it, the order must be deemed to be a 'subsequent order to pay' within the meaning of Section 48(1)(b) and a fresh period of 12 years runs from the date of such order.

11. Similar is the view of the Madhya Bharat High Court expressed in Occhelal v. Ramnarayan, ILR 1954 Madh-B 49. In Laxmi Lal v. Onkarlal, (S) AIR 1955 Raj 33, Wanchoo C. J. and Modi J. considered the matter. It has been laid down by them that the expression 'subsequent order' in Section 48(1)(b) may cover any lawful order passed by an executing Court.

Hence, where such subsequent order directs any payment of money or the delivery of any property to be made at recurring periods, the period of twelve years beyond which a fresh application for execution cannot be filed must be computed from the date of default in making the payment or the delivery.

A similar view has been adopted by the Allahabad High Court, vide Chhatra Pati Pertab Bahadur v. Hari Ram, AIR 1940 All 423. It is true that in Jurawan v. Mahabir Dube, ILR 40 All 198: (AIR 1918 All 216 (2)) a contrary view was taken which was followed in Gobardhan Das v. Dau Dayal, AIR 1932 All 273 F.B. but the later view of that Court has changed over to that of the majority of other High Courts.

12. Mr. Hans Raj Sodhi has also placed reliance in support of his contention on Bishwanath Prasad v. Lachhmi Narain. AIR 1935 Pat 380, Nihal Hussain v. Syed Ahmed, AIR 1936 Oudh 266 and Chettyar Firm v. Narayanan Chettyar, AIR 1934 Rang 165. All these cases were decided before the decision of their Lordships of the Privy Council in Oudh Commercial Bank, Ltd., Fyzabad v. Bind Basni Kuer, AIR 1939 PC 80 which clarified and laid down the law regarding a compromise and orders passed thereon in execution proceedings.

These authorities, therefore, cannot be of much assistance. It may then be possible for Mr. Sodhi to press the observations of their Lordships of the Privy Council in Kirtyanand Singh v. Prithi Chand Lal, AIR 1933 PC 52 which were to the effect that in Section 48(1)(b) the subsequent order must be an order in a suit in which the decree was made. But the point which their Lordships considered was entirely different.

In that case the decree-holder put in an application in a suit in which the property of the judgment-debtor was the subject-matter and in which a Receiver had been appointed. An order was passed on the. Receiver directing him to pay a certain amount half-yearly to the decree-holder in respect of his judgment-debt. It was held that the order was not such an order as was contemplated by Section 48(1)(b). On page 54 the following observations were made.

'Their Lordships are of opinion that on the true construction of the section the subsequent order must be an order in the suit in which the decree is made and an order which directs payments by the debtor or the surety of money in respect of the judgment debt. The order of 31-1-1920 satisfies none of these conditions. It is an order made at a time when some of the property which was believed to be the property of the debtors was the subject of some suit in the nature of an administration suit in which a receiver had been appointed. The application for the order made in that suit was made in the absence of the judgment-debtors and in the absence of the surety, and the order for payment was an order on the receiver in that suit. That, in their Lordships' opinion, is not such an order as is contemplated by Section 48(1)(b) at all, and that point therefore fails.'

13. The result, of all this discussion is that almost all the High Courts are agreed with regard to the true interpretation which is to be placed on the words 'subsequent order' occurring in Section 48(1)(b) of the Code of Civil Procedure. It means that the said order may be of any competent Court including the Court of execution. In this view of the matter the decision of the learned District Judge that the execution application was within time must be affirmed.

14. The next point that has been raised by Mr. Hans Raj Sodhi on behalf of the Judgment-debtors relates to issue No. 2. The executing Court held that the decree-holder could not claim any interest because the original decree was varied with the consent of the parties on 24-11-1951. The lower appellate Court, however, considered the material on the record and came to the conclusion that there was nothing in the compromise which took place on 24-11-1951 which showed that interest had been given up by the decree-holder nor was there any indication in the order of the Court from which it could be inferred that interest had been disallowed by the Court.

It is contended by Mr. Sodhi that in the execution application which was filed on 31-7-1951 there was no mention in column 7 of the amount of interest as calculated on that date. He further points out that in the Kafiat submitted by the office the only amount which was stated was Rs. 1,265/- and the interest was never included in the calculation made by the office.

From this it is sought to be argued that the decree-holder had abandoned or given up the claim with regard to interest. It is true that according to Order 21, Rule 11(2)(g) it is necessary to state in the execution application the amount of interest due upon the decree but it appears that in the execution application which was filed on behalf of the decree-holder by his counsel he omitted by inadvertence or otherwise to mention the actual amount of interest as calculated up to that date and simply mentioned the amount of the decree.

But it is noteworthy that in that very column after the mention of the principal amount there is a clear mention of the word interest at Rs. -/8/-per cent per mensem and costs. It cannot be inferred at all from what is stated in column 7 that the decretal amount due on account of interest was given up by the decree-holder. As regards the calculation in the Kafiat it is not possible to hold that the decree-holder was in any way bound by the same.

The Kafiat is put up by the Ahlmad and there is nothing to show that the decree-holder accepted that calculation to be correct. The statements made on 24-11-1951 by virtue of which the compromise was recorded and the order of the Court made thereon do not show that interest was given up by the decree-holder at any stage. On the contrary the indications are that the balance of the decretal amount was to be paid up by the judgment-debtor by instalment of Rs. 40/- per month.

It cannot possibly be said that the amount of interest did not form a part of the decree. In any case the lower appellate Court on a consideration of the relevant material has come to the conclusion that interest was never abandoned by the decree-holder. That is a finding of fact with which it is not open to interfere in second appeal.

15. For all these reasons, this appeal fails andis dismissed. In the circumstances of the case, however, there will be no order as to costs. The partiesare directed to appear before the executing Courton 24-11-1958 for further proceedings.


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