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Daljit Singh Vs. DIn Dayal - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 433 of 1970
Judge
Reported in9(1973)DLT180
ActsIndian Limitation Act, 1963 - Schedule - Articles 136 and 182
AppellantDaljit Singh
RespondentDIn Dayal
Advocates: B. Singh and; O.N. Moolri, Advs
Cases ReferredRabindra Kumar Saha v. Firm Biswanath Bhander. Tripwa
Excerpt:
.....of the decree and the same was dismissed as unsatisfied on 27th july, 1966. the decree-holder next filed an application for execution on 9th january, 1970. as the said application for execution was filed mote than two years after the dismissal of the first application, notice under order 21 rule 22 of the code of civil procedure was ordered to be served on the judgment-debtor. (3) by the impugned order, dated 5th june, 1970, the additional judge of the small cause court held that the limitation act of 1908 was repealed and limitation act of 1963 came into force with effect from 1st january, 1964, that according to the new limitation act the period of limitation for taking out execution was 12 years, that there was no need for filing an execution application within three years as was..........suit was decreed exparte against daljit singh on 14th august, 1963. the decree-holder. din dayal, filed an execution application within three years from the date of the decree and the same was dismissed as unsatisfied on 27th july, 1966. the decree-holder next filed an application for execution on 9th january, 1970. as the said application for execution was filed mote than two years after the dismissal of the first application, notice under order 21 rule 22 of the code of civil procedure was ordered to be served on the judgment-debtor. in response to the said notice, the judgment- debtor, daljit singh, appeared and presented a petition raising an objection that the application for execution was barred by time. (3) by the impugned order, dated 5th june, 1970, the additional judge of the.....
Judgment:

T.V.R. Tatachari, J.

(1) This Civil Revision has been filed by Daljit Singh against an order of Shri P. L. Singla Additional Judge, Small Cause Court, Delhi, dated 5th June, 1970, where by an objection petition filed by the petitioner resisting the execution of a decree against him was dismissed.

(2) The respondent. Din Dayal, filed a suit against the petitioner, Daljit Singh; on 19th April, 1963, for recovery. of a certain amount on the basis of a promissory note. The suit was decreed exparte against Daljit Singh on 14th August, 1963. The decree-holder. Din Dayal, filed an execution application within three years from the date of the decree and the same was dismissed as unsatisfied on 27th July, 1966. The decree-holder next filed an application for execution on 9th January, 1970. As the said application for execution was filed mote than two years after the dismissal of the first application, notice under Order 21 Rule 22 of the Code of Civil Procedure was ordered to be served on the judgment-debtor. In response to the said notice, the judgment- debtor, Daljit Singh, appeared and presented a petition raising an objection that the application for execution was barred by time.

(3) By the impugned order, dated 5th June, 1970, the Additional Judge of the Small Cause Court held that the Limitation Act of 1908 was repealed and Limitation Act of 1963 came into force with effect from 1st January, 1964, that according to the new Limitation Act the period of limitation for taking out execution was 12 years, that there was no need for filing an execution application within three years as was required under Article 182 of the Limitation Act, 1908, and that the second execution application was, thereforee, well within time as it was filed within 12 years from the dale of the decree. In that view, he dismissed the petition of the judgment-debtor. It is against the said order that the present Civil Revision has been filed by the judgment- debtor, Daljit Singh.

(4) Shri B. Singh, learned counsel for the petitioner, contended that it is the Limitation Act of 1908 (hereinafter referred to as the old Act) that applies to the case and not the Limitation Act of 1963 (hereinafter referred to as the new Act), that under Article 182 of that Act the second execution application should have been filed within three years from 27th July, 1966, on which date the first execution application was dismissed as unsatisfied, and that since the second execution application was filed on 9th January, 1970, after more than three years, it was barred by Limitation. The learned counsel argued that the new Act has no retrospective effect, but is only prospective in operation, and that although the old Act was repealed by the new Act which came into force on 1st January, 1964, the decree which was passed on 14th August, 1963, when the old Act was in force, continued to be governed by the old Act. Reliance was placed by him firstly on clauses (c) and (e) of Section 6 of the General Clauses Act in support of his contention. The said clauses read as follows:-

'WHERE.....................ANYCentral Act..................repeals an enactment...............than, unless a different intention appears, the repeal a hall not- (a) ........................ (b) ............ ......... (c) affect any right, previlege, obligation or liability acquired accrued or incurred under any enactment so repealed ; or (d) ........................ (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ; and any such investigation, legal proceeding or remedy may be in. stituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act..... .............. had not been pased.'

(5) Section 6 of the General Clauses Act makes a general provision as rewards the effect of repeal of a statute by a Central Act. It, however, makes it clear that the provision therein applies 'unless a different intention appears' Obviously, such different intention has to appear in the repealing Act. In other words, the provisions in section 6 of the General Clauses Act regarding the effect of repeal of a statute will not apply if the repealing Act contains in itself a provision or provisions regarding the effect of the repeal, i e., regarding the cases to which, the circumstances in which and the extent to which the repeated statute continues to apply notwithstanding its repeal. Section 32 of the new Act repealed the old Act, and Sections 30 and 31 of the new Act contain provisions regarding the cases to which and the extent to which the old Act continues to apply. thereforee, in a given case, the question as to whether and to what extent the old Act applies has to be determined by reference to the aforesaid Sections 30 and 31 of the new Act and not Section 6 of the General Clauses Act.

(6) Before considering Sections 30 and 31 of the new Act, it is necessary to refer to the contention of the learned counsel for the petitioner. The argument of Shri B Singh was that since the decree in the present case was passed on 14th August, 1963, when the old Act was in force, all applications for execution of that decree have to be filed in accordance with the provisions in Article 182 of the old Act. It has to be noted that Article 182 of the old Act did not provide a period of Limitation for the execution of the decree in general, but provided a period of three years for such application for execution of the decree. thereforee, there is no question of Article 182 being applicable to the execution of the decree for all lime. Since the Article provided a period of limitation for such application for execution of a decree, the applicability of the said Article has to be considered each time an application for the execution of the decree is filed. If the Article ceases to be in force when a particular application for execution of the decree is sought to be filed the said application would not be governed by that Article In the present case, the decree in question was passed on 14th August, 1963. As the old Act was in force on that date, the period of Limitation for filing an application for execution of that decree was the period of three years prescribed in Article 182. In fact, the first execution application was admittedly filed within three years from the date of the decree as required by Article 182 of the old Act. The said execution application was dismissed on 27th July, 1966. The period of limitation for the next execution application has to be reckoned from that date under an Article which was in force on that date. Article 182 of the old Act was no longer in force on 27 July, 1966. It was the new Act that was in force on that date. Article 136 of the new Act, unlike Article 182 of the old Act, does not provide a period of limitation for successive applications for execution of a decree. It provides a consolidated period of 12 years for the execution of the decree. thereforee, when the second application for execution had to be filed, there was no question of the applicability of the period of three years provided in Article 182 of the old Act. It was to be filed within a period of 12 years from the dale of the decree as provided in Article 136 of the new Act. The second application for execution filed on 9th January, 1970, was thus quits within time as held by the lower Court.

(7) It has next to be examined whether Sections 30 and 31 of the new Act support the contention of the learned counsel for the petitioner. Section 30 makes provision to cover cases where the period of limitation under the old Act is reduced in the new Act. In the case of an application for execution of a decree, the Article in the old Act applicable is 182, while the Article in the new Act applicable is 136 The period provided in Article 182 was three years, and the period provided in Article 136 is 12 years Section 30 of the new Act is not, thereforee. relevant and need not be considered further. Section 31 of the new Act provides as follows :-

'31.Nothing in this Act shall- (a) enable any suit, appeal or application to be instituted, perferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908 expired before the commencement of this Act; or (b) affect any suit, appeal or application instituted, preferred or made before, and pending at, such commencement.'

Clause (a) of Section 31 makes it clear that any suit appeal or appellation for which the period of limitation prescribed by the old Act had expired before the commencement of the new Act, such a suit, appeal or application remains barred and is not rev.ved by the new Act. Clause (b) of section 31 provides that any suit, appeal or application, instituted, preferred or made before and pending at the commencement of the new Act, i.e., 1st January, 1964, shall not be affected by the new Act.

(8) Clause (a) of the Section speaks of an application for which the period of limitation prescribed by the old Act expired before 1st January, 1964 Obviously, the second execution application which was to be filed subsequent to 27th July, 1966, cannot be said to be an application for which the period of three years provided in Article 182 of the old Act expired before 1st January, 1964. The learned counsel cannot. thereforee, derive any assistance from clause (a) of Section 31. As regards clause (b), it speaks of, inter alia, an application made before, and pending on 1st April, 1964. It is again obvious that the second execution application which was to be filed subsequent to 27th July, 1966, cannot be regarded as such an application. Thus, the learned counsel for the petitioner cannot derive any assistance from clause (b) also in support of his contention.

(9) Shri B. Singh also referred to some decisions. They are Pingali Siva Kumar and others v. Doli Sivaiah, Deep Chand v. Mst. Bhago and Punjab National Bank Ltd v Hind Textile Ltd.

(10) In Pingali Siva Kumar's case (supra), the question for consideration was whether Section 5 of the new Limitation Act was applicable to periods prescribed by a special or local law. Section 93 of of Hyderabad Tenancy and Agricultural Lands Act (21 of 1950) provided a period of limitation of sixty days for certain revision petitions under that Act. A revision petition was filed on 4th January. 1964, on which date the period for sixty days had expired. A question was raised as to whether section 5 of the new Limitation Act, which came into force on 1st January. 1964, applied to the revision petition. A Division Bench of the High Court, Basi Reddy and Gopal Rao Ekbote JJ., pointed out that it was well settled by a series of decisions of that Court that Section 5 of the old (Limitation Act of 1908) Act had no application to appeals or revision petitions filed under the aforesaid Tenancy Act, and held that since the period of limitation of sixty days had expired by the date on which the revision petition was filed, the delay in filing the revision could not have been condoned under the old Act. Dealing next with a contention that Section 31 of the new Act which came into force on 1st January, 1964, attracted, by implication, Section 5 of the new Act even to appeals and revision petitions under the aforesaid Tenancy Act, the learned Judges observed as follows :-

'It will be seen that under clause (b) a suit, appeal or application, which had been filed even before the coming into force of the new Act and which was pending at that time, would not attract Section 5 of the Limitation Act. If Section 5 is not applicable even to pending matters which had become barred by limitation under the provisions of any law including a special or local law, a fortiori a revision petition,which was filed after the coming into force of the new Limitation Act and after the period of limitation prescribed by the Hyderabad Tenancy and Agricultural Lands Act had expired, cannot claim the benefit of Section 5 of the new Limitation Act. It is also to be noted that while clause (a) of Section 31 relates to matters for which period of limitation prescribed by the old Limitation Act had expired before the commencement of the new Act, clause (b) applies to any suit, appeal of application for which the period of limitation is prescribed under the old Limitation Act or Under any other law, special or local That being the true legal position the contention of the learned Advocate that Section 5 of the new Limitation Act is applicable to this revision petition, is clearly untenable and the petition is, thereforee, dismissed.'

Referring to the latter part of the above observations, Shri B. Singh sought to contend that it was held in the above decision that clause (b) of Section 31 of the new Act applies to any suit, appeal or application for which the period of limitation was prescribed under the old Act. and thereforee. Article 182 of the old Act is applicable to the second execution application in the present case. The contention is clearly untenable A reading of the observations set out above shows that the learned Judges only contrasted clause (b) of Section 31 of the new Act with clause (a) thereof, Clause (b) by its own language, applies only to an application made before awl pending on 1st January, 1964. The second execution application in the present case was filed on 9th January, 1970, and, thereforee, does not attract clause (b) of section 31 of the new Act.

(11) In Deep Chand's case, it was observed by A.N. Grover and I. D. Dua JJ. that rules of limitation pertain to the domain of adjective law, that being prima facie rules of procedure, no one has any vested right in a period for instituting suits, appeals, etc., and that at the same time when a statute of limitation has run out, the defense based on that statute may become a vested right which cannot thereafter be impaired. There cannot be any dispute about the above propositions. The observations apply only when the period prescribed under the statute which has run out is applicable and has expired. But, the very question in the present case is whether the period prescribed under Article 182 was applicable and had expired. The observations cannot, thereforee, be of any assistance to the learned counsel.

(12) In the Punjab National Bank's case, a decree was passed on 16th February, 1949 After a number of execution petitions which were ultimately abandoned, a payment was made by the judgment debtor on 20th July, 1962. It was contended that the decree holder could execute the decree even after the old Limitation Act was repealed by the new Act. Sabyasachi Mukherji J. held that the payment on 20th July, 1962 extended the period of limitation under Article 183 of the of the old Limitation Act. and that the decree-holder could execute the decree even after the repeal of the old Act. It has to be noted that the payment was made in 1962 when the old Limitation Act was in force, and, thereforee, the period of limitation stood extended by that payment by 12 years from that date by virtues of Article 183 of that Act. There is no provision in the new Limitation Act which cuts down that extended period of limitation or cancels the legal effect of Article 183 of the old Act. There is no such situation in the facts of the present case, and so no assistance can be derived by Shri B. Singh from that decision.

(13) On the other hand, Shri O. N. Moorli, learned counsel for the respondents, referred to the decision in Rabindra Kumar Saha v. Firm Biswanath Bhander. Tripwa, in which a view similar to the one taken by me was taken. In that case, a decree was passed on 23rd April, 1962. An execution application was pending when the new Act came into force on 1st January, 1964. That execution application was disposed of on 5th June, 1969. Thereafter, another execution application was filed on 5th September, 1967. An objection was raised by the judgment debtor that the application was barred by lime as it was filed after more than three years from the date of the disposal of the previous execution application though within 12 years from the date of the decree R.S. Bindra J. C. held that clause (b) of section 31 of the new Act did not apply as the execution application which was said to have been barred by time was not pending on the date of the commencement of the new Act. The learned Judicial Commissioner pointed out that section 28 of the new Act has specifically repealed section 48 of the Civil Procedure Code, and thereforee, with effect from 1st January, 1964, section 48 ceased to have any relevancy visa-vis the execution applications filed after that date in respect of decrees passed before that date, and that Article 136 of the new Act prescribes a period of 12 years for the execution of any decree. The learned Judicial Commissioner held that there is no provision in the new Act corresponding to Article 182 of the old Act prescribing a period of three years for the first or each successive execution application, and that under Article 136 of the new Act, it is open to the decree-bolder to claim execution at any time within 12 years from the date the decree became enforceable in complete oblivion of when the last execution application was disposed of. Shri Moolri also slated that payments of Rs. 50.00 and Rs. 100.00 were made on 20th September, 1963 and 8th February, 1966 respectively towards the decretal amount, that on 23rd December. 1966, the parties entered into a compromise according to which the balance of the decretal amount was payable by installments commencing from 15th January, 1967 and the entire balance amount was payable by 31st July, 1907. The learned counsel argued that even if the old Act applied, the second execution application filed on 9th January, 1970, was within three years from July, 1967, when the right to execute accrued under the compromise. It is not, however, necessary to go into these factual aspects in this Civil Revision, particularly in the view taken by me on the prints of law raised by Shri B. Singh.

(14) It follows from the above discussion that the second execution application filed on 9th January. 1970. was not barred by limitation as held by the Additional Judge of the Small Cause Court.

(15) For the foregoing reasons, the Civil revision fails and is dismissed with costs.


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