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Sarup Singh and ors. Vs. Bhagwan Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberEx. Second Appeal No. 769 of 1949
Judge
Reported inAIR1952P& H212
ActsDebt Law; Punjab Debtors' Protection Act, 1936 - Sections 11 and 11(2); ;Punjab Relief of Indebtedness Act, 1934 - Sections 26
AppellantSarup Singh and ors.
RespondentBhagwan Das
Appellant Advocate H.R. Sachdeva, Adv.
Respondent Advocate H.L. Sarin, Adv.
DispositionAppeal dismissed
Excerpt:
.....lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. 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. - 7. i am, therefore, of the opinion that thisappeal..........was taken that the execution was barred by time because of the provisions of section 11 of the punjab debtors' protection act. both the courts below have overruled those objections and have allowed the execution to proceed. the judgment-debtors have come up in appeal in this court.3. mr. hans raj sachdev has submitted on behalf of the appellants that under section 11 of the punjab debtors' protection act only 6 years are allowed for the execution of the decrees and that no time can be excluded which was taken by applications made before the debt conciliation board, section 11 provides: 'notwithstanding anything contained in any other enactment for the time being in force where an application has been made to execute a decree passed after the commencement of this act against a debtor.....
Judgment:

Kapur, J.

1. This js an appeal against an appellate order passed by the learned District Judge, Ambala, dismissing the appeal of the judgment-debtors.

2. On the 29th of January, 1941 Bhagwan Dass respondent obtained a decree for Rs. 4,000/- against Sarup Singh and others. On the 30th of April, 1941, one of the judgment-debtors made an application for conciliation to the Debt Conciliation Board. This application was dismissed on the 28th of January, 1943. An application for execution was then brought on the 1st of November, 1943, which was dismissed on the 10th of June, 1944. On the 13th of August, 1945, another application for execution was filed by the decree-holder. All the Judgment-debtors then made an application for conciliation to the Debt Conciliation Board on the 24th of September, 1945, and this was disposed of on the 25th of September, 1946. The execution which was pending was also dismissed on the 19th of April, 1947. The last application was then filed on the 6th of July, 1948, and an objection was taken that the execution was barred by time because of the provisions of Section 11 of the Punjab Debtors' Protection Act. Both the Courts below have overruled those objections and have allowed the execution to proceed. The judgment-debtors have come up in appeal in this Court.

3. Mr. Hans Raj Sachdev has submitted on behalf of the appellants that under Section 11 of the Punjab Debtors' Protection Act only 6 years are allowed for the execution of the decrees and that no time can be excluded which was taken by applications made before the Debt Conciliation Board, Section 11 provides: 'Notwithstanding anything contained in any other enactment for the time being in force where an application has been made to execute a decree passed after the commencement of this Act against a debtor as defined in sub-section (2) of Section 7 of the Punjab Relief of Indebtedness Act, 1934, * * * no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of six years from

(a) the date of the decree sought to be executed, or

(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 at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

(2) Nothing in this section shall be deemed

(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of six years, where the judgment-debtor has by fraud or force, prevented the execution of the decree at sometime within six years immediately before the date of the application; or

(b) * * * *.'

4. Reliance is particularly placed on the opening words of this section 'notwithstanding anything contained in any other enactment for the time being in force' and it is submitted that whatever may be provided in any other Act or statute Section 11 provides for a period of six years only and therefore it cannot be extended by the provisions of Section 26 of the Punjab Relief of Indebtedness Act. Section 26 of Punjab Relief of Indebtedness Act provides:

'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 this Part of this Act shall be excluded when counting the period of limitation for any application, suit or appeal.'

5. Mr. Harbans Lal Sarin has relied on the principle of reconciliation and his submission is that if there is an apparent conflict between the two statutes they should be read in such a manner that one can be reconciled with the other and he says that this principle has the support of the Federal Court. I agree that this principle should be applied it it does apply, and Mr. Sarin further submits that the meaning of the words which I have quoted above is that notwithstanding anything which is contained in any other law which deals with the period during which a decree can be executed, and the reference, according to the learned Advocate, is to Section 48 of the Code of Civil Procedure. In other words, his submission is that all that Section 11 has done is that it has decreased the period of limitation from 12 years to 6 years. There seems to be force in this submission. Under Section 26 of the Punjab Relief of Indebtedness Act the time which has been spent in proceedings taken before a Conciliation Board during which period the decree-holder is debarred from bringing an application for execution to be excluded. The law cannot be read in such a manner that on the one hand it will deprive a decree-holder from taking out execution because of something which the judgment-debtor is, under the law, entitled to do and does and at the same time deprive the decree-holder of his right to exclude the time taken by the judgment-debtor's applications. Relying on this principle I hold that the words which have been referred to by the learned Advocate for the appellant must refer to Section 48 of the Code of Civil Procedure or to Acts which prescribe the period of limitation of executions.

6. It is then submitted by Mr. Sarin that if the judgment-debtor resorts to any dishonest stratagem by putting any frivolous applications or by putting in 'benamidars' to delay executions that would be covered by the word 'fraud' as used in Section 11(2) (a) of the Punjab Debtors' Protection Act. I am doubtful if the putting in of an application under the provisions of the Punjab Relief of Indebtedness Act could be covered by the word 'fraud'. As observed by Mulla relying on 'BANDHU SINGH v. KAYASTHA TRADING BANK LTD.', 53 All 419, the mere fact that there has been a prolongation of execution proceedings due in part to frivolous objections raised by the judgment-debtor, does not constitute 'fraud'; but f it can be shown that the Judgment-debtors were putting forward these applications with the objection of preventing the execution being taken then I think that it would come within the word 'fraud' as used in the section. In 'PATTAKARA ANNAMALAI GOUNDAN V. RANGASAMI CHETTI', 6 Mad 365, it was held that the making of applications which had the effect for the time of staying execution and thus delaying it for more than 12 years would amount to fraud. Similarly in 'BHAGU JETHA v. MALEK BAWASAHEB', 9 Bom 318, concealing oneself has been held to be fraud. But every case has to be judged in accordance with the facts of each case. I have no doubt that in the present case the object of the Judgment-debtors was none other than preventing the decree-holder from executing his decree and this would be covered by the word 'fraud'. But even if this is not so, I think on the principle of reconciliation the period under Section 26 of the Punjab Relief of Indebtedness Act must be excluded.

7. I am, therefore, of the opinion that thisappeal must fail and it is dismissed. The decree-holder will have his costs in this Courtas well as in the Courts below.


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