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Gopal Chand Bhalla Vs. Gobind Sarup and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 5 of 1959
Judge
Reported inAIR1963P& H363
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48(1) and 100 - Order 20, Rule 11(2)
AppellantGopal Chand Bhalla
RespondentGobind Sarup and anr.
Appellant Advocate H.R. Sodhi,; U.S. Sahni and; Amrit Pal Singh, Advs.
Respondent Advocate H.L. Sarin,; M.S. Jain and; K.K. Cucurria, Advs.
DispositionAppeal dismissed
Cases ReferredKirtyanand Singh v. Prithi Chand
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..........a certain date or on certain dates. the subsequent order must be an ordermade by the court which passed the decree and not an order made in the course of execution. hence an orderpassed by an executing court regarding the realisation of a decretal sum by means of instalments does not amount to a subsequent order within the meaning of section 48.' besides these, reliance was placed before the learned single judge as well as before us on a division bench ruling of the lahore high court reported in zaheer-ud-din v. mt. amtur rasheed, air 1944 lah 106. the facts ofthis case are, however, distinguishable and they do not jielp the appellant in this case. in that case an order passed by the executing court did not embody the terms of the compromise nor did it direct the payment of the.....
Judgment:

Harbans Singh, J.

1. The facts necessary for the disposal of this appeal may briefly be stated 33 under:

Gobind Sarup obtained a decree against Gopal Chand and Jaswant Kumar for a sum of Rs. 1,414/- together with costs and future interest at 6 per cent per annum, on 25tn of March, 1941. Execution proceedings were taken and on 14th of May, 1949, the judgment-debtors agreed to pay the decretal amount by instalments of Rs. 30/- per mensem. Only a few instalments were paid and there was a default whereupon the decree-holder look out the execution again on 31st of July, 1951. Gopal Chand preferred objections and during the pendency of these proceedings there was again a compromise between the decree-holder on the one hand and Gopal Chand judgment-debtor on the other. As a result of this compromise, the executing Court passed the following order on 24th of November, 1951: 'The balance of the decree will be paid in monthly Instalments of Rs. 40A. In case of default of payment or two instalments the balance will be realisable in lump sum according to law. The first instalment will be paid on the 24th December, 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/.'

2. The execution application, out of which the present appeal has arisen, was filed on 13th of November, 1954, for the recovery of the future interest. The decree-holder claimed that he was entitled to a sum of Rs. 1,128/10/-. Objections were taken to this by Gopal Chand judgment-debtor as a result of which a number of issues were settled. We are only concerned with issues Nos. 1 and 2 which were as follows:

(1) Is the execution application barred by time?

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

The trial Court dismissed the execution application but the learned District Judge held both the issues in favour of the decree-holder. On a further appeal filed by the Judgment-debtor, a learned Single Judge of this Court affirmed the order of the lower appellate Court.

3. With regard to the question whether the decree-holder was entitled to recover the interest or not, the main point urged before the learned Single Judge was that in the execution application filed on 31st of July, 1951, In which a compromise was entered into, there was no mention in column 7 of the application as to the amount of Interest calculated on that day and that in the katiat appended by the office it was stated that Rs. 1,265/-were due and, interest was never calculated ever in the calculation of the office.

The argument was that, in fact, the judgment-debtor should be taken to have entered into a compromise for payment of this specific amount of Rs. 1,265/- and that impliedly the parties agreed that no interest would be charged. The learned Single Judge went into this question and came to the conclusion that there was nothing in the statements of the parties relating to the compromise from which it could be inferred that interest was given up, and that, in any case, the lower appellate Court, on a consideration of the relevant material, having come to ithe conclusion that interest was never abandoned by the decree-holder, the finding was a finding of fact which was unassailable in second appeal. Though this point was urged before us by the learned counsel for the judgment-debtor, yet it is obvious that finding, which could not be challenged in second appeal, is not open to attack in the Letters Patent Appeal at all.

4. The main argument addressed by the learned counsel for the appellant was relating to the question of limitation. The question involves the interpretation of Sub-section (1) of Section 48 of the Civil Procedure Code. This may be reproduced with advantage-

'48(1) Where an application to execute a decree-not being a decrea 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 expiration of twelve 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 dale of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.'

There is no doubt that the last execution application filed in 1954 was more than twelve years after the date of the decree and, consequently, it would be within time only if it falls within Clause (b) of Sub-section (1) of Section 48, and the order passed by the executing Court in the year 1951 as a result of the compromise between the parties can be treated as a 'subsequent order' directing payment of the money at recurring periods. There can be no manner of doubt that the relevant order of the Court did direct the payment of the decretal amount by instalments of Rs. 40/-per mensem and was an order falling within Clause (b):

The argument of the learned counsel for the appellant, however, was that the order referred to in Sub-clause (b) of Sub-section (1) of Section 48 is an order passed by the Court which decided the suit and not an order passed by the executing Court. He referred to Sub-rule (2) of Rule 11 of Order 20 of the Civil Procedure Code which is to the following effect: 'After the passing of any such decree the Court may, on the application of the judgment-debtor and with the consent of the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest** ** **'

It was urged that the Court which can pass such an order is apparently the Court passing the decree, and not the executing Court and, consequently, an order passed by the executing Court directing the payment at recurring periods would not extend the period of limitation for the execution of the decree. Main support for this contention was sought to be drawn from the observations made in a Full Bench decision of the Allahabad High Court in Gobardhan Das v. Dau Dayal, AIR 1932 All 273. These observations are made at page 281 (column 1) of the report as follows:

'Though the words 'subsequent order' in Section 48 are more general and the operation of the section cannot be confined to the particular orders passed under Order 20, Rule 11, the order under Order 20, Rule 11 can te passed by the original Court only. An executing court as such cannot make an order which would operate as a 'subsequent order directing payment of the decretal amount on a certain date'.'

Apart from the fact that this view was held in Bhiki Mal Murari Lal v. Kundan Lal, AIR 1940 All 107 as having been impliedly overruled by a decision of the Privy Council in Oudh Commercial Bank Ltd. Fyzabad v. Bind Basni Kuer, AIR 1939 PC 80, this view runs counter to that taken by e majority of the other High Courts.

In Nihal Husain v. Syed Ahmed, AIR 1936 Oudh 263, King C.J., following this Full Bench decision of AllahabadHigh Court and not fallowing D.S. Apte v. Tirmal Hanmant,AIR 1925 Bom 503 and H. Fialding v. Janki Das and Sons,AIR 1926 Lah 465, took a similar view. The head-note runs as follows:

'An executing Court as such has no power to make an order which would operate as a 'subsequent order' withinthe meaning of Section 48, Sub-section (1)(b) directing payment of the decretal amount on a certain date or on certain dates. The subsequent order must be an ordermade by the Court which passed the decree and not an order made in the course of execution. Hence an orderpassed by an executing Court regarding the realisation of a decretal sum by means of instalments does not amount to a subsequent order within the meaning of Section 48.'

Besides these, reliance was placed before the learned Single Judge as well as before us on a Division Bench ruling of the Lahore High Court reported in Zaheer-ud-Din v. Mt. Amtur Rasheed, AIR 1944 Lah 106. The facts ofthis case are, however, distinguishable and they do not Jielp the appellant in this case. In that case an order passed by the executing Court did not embody the terms of the compromise nor did it direct the payment of the decretal amount by instalments. It only noticed that there was a compromise between the parties and in view of that compromise the proceedings were consigned to the recordroom. Abdur Rahman J., delivering the judgment of the Bench, clearly observed that the order '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'. In fact, reference was made to an earlier Division Bench decision, 1o which Shadhi Lal C.J. was a party, reported as Banarsi Das v. Ramzan, AIR 1923 Lah 381 and that case wasdistinguished on facts.

In Banarsi Das's case, AIR 1923 Lah 381 it was specifically held that an order passed by the executing Court to pay the decretal amount by instalments on compromiseas the result of extending time under section 48(1) (b). Head-note (a) runs as follows:

'The parties to an execution agreed that the decretal amount should be' paid by instalments and the Court accepted the compromise and consequently passed an order striding off the execution proceedings. Held that the Court,when accepting the request of the parties, intended thatthe decretal amount should be payable by instalments,that Section 48(b) of the new Code applied and the order which it passed was in essence and substance one made under Section 210 of the Civil Procedure Code (now Order20, rule 11) which extended the period of limitation.'

In fact, Banarsi Das's case, AIR 1923 Lah 381 was followed by Jai Lal J. in Bhagwant Singh v. Santa Singh AIR 1933 Lah 758. The High Court of Travancore Cochin in Kuriakko v. Kurian Pylee, AIR 1953 Trav. Co. 394 at p. 397 also took a view similar to the one taken by the Full Bench of the Allahabad High Court, referred to above. In its subsequent decision reported as E. Valia Raja v. Chacko, AIR 1959 Ker 83, this earlier decision was overruled. Head-note (a) runs as follows:

'An executing Court's order accepting a comoromise arrangement entered into between the parties for paying up the decree-debt by instalments or on a specified date, would constitute a subsequent order within the meaning of Section 48(1) (b).'

Similarly the earlier view taken by the Patna High Court in Bishwa Nath Prasad v. Lachhmi Narain, AIR 1935 pat 380 to the effect that an order passed in a subsequent compromise is not an order contemplated by Section48(1)(b), has been reversed recently in Omprakash NarainSingh v. Jagarnath Prasad, AIR 1959 Pat 158.

Bombay High Court has always taken the view that the subsequent order contemplated by Section 48 (1) (b) of the Civil Procedure Code can be an order passed by the executing Court. D. S. Apte's case, AIR 1925 Bom 503 is a direct authority on the point.

Calcutta High Court -- See Monmohan v. Khalishkhall cooperative Bank, AIR 1937 Cal 236 and Jatindra Nath v. Heramba Chandra, AIR 1945 Cal 154, recently Madhya Pradesh High Court in Gulab Chand v. Sawa Chand, AIR 1960 Madh Pra 70 and Rajasthan High Court in Laxmilal v. Onkarlal, (S) AIR 1955 Raj 33 have also taken the same view.

5. We, therefore, find that almost all the High Courts have now taken the view that an order passed by the executing Court directing the payment of decretal amount by instalments or at a future date does amount to a 'subsequent order' within the meaning of Section 48(1)(b) and, in fact, there is hardly any authority to the contrary.

The opposite view was really based on the observations of the Full Bench in Gobardhan's case, AIR 1932 All 273 which view has not even been adhered to by the Allahabad High Court itself in subsequent decisions, and Banarsi Das's case, AIR 1923 Lah 381 is distinguishable and is hardly any authority on the point. Reference was also made to a Privy Council decision in Kirtyanand Singh v. Prithi Chand, AIR 1933 PC 52, but that was a case in which an order for payment by instalments was not made in the course of the execution proceedings but in another suit and, consequently, this case has no bearing.

6. In view of the above, the decision of the learned Single Judge and the lower Appellate Court that the order passed by the executing Court in 1951 gave fresh period of limitation is well based and must be upheld. This appeal is, consequently, dismissed, in the peculiar circumstances of the case, however, there will be no order as to costs.

D. Falshaw, C.J.

7. I agree.


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