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Sheo Pershad (Deceased) Represented by Rajinder Kumar and ors. Vs. Jai NaraIn Pershad and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtDelhi High Court
Decided On
Case NumberElection First Appeal No. 21D of 1966
Judge
Reported inILR1973Delhi169
ActsLimitation Act, 1908 - Schedule - Article 182
AppellantSheo Pershad (Deceased) Represented by Rajinder Kumar and ors.
RespondentJai NaraIn Pershad and ors.
Advocates: R.M. Lal,; Arun Mohan,; R.L. Aggarwal and;
Excerpt:
.....advantage at all. the decree holder is only entitled to defer taking out execution till after the appellate decree, only in those cases where this decree is under challenge in the appellate court, where possibly his right might be altered.;in case of the decree against which no appeal was filed the limitation for execution had, however, to commence from the date of the trial court's order. - - if the latter date is applied then clearly, the present execution application is barred. but inconstruing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their lordships think the safe guide. the words occurring in the privy council's judgment :if the final result is against them may lead to no advantage' clearly indicate that what..........brought before that date. if the date is taken to 18th january, 1949, which was the date of the decree passed by the trial court, then the three years' period terminated on 18th january, 1952, which was long before the execution application was moved. if the latter date is applied then clearly, the present execution application is barred. the main controversy before me is that the portion of the decree passed in favor of jai narain pershad was never called in question in the appeal to the high court and, thereforee, there is no reason why there should be an extension of limitation so as to make the period for the purpose of article 182 commence from 8th december. 1959 instead of 18th january. 1949. on this question the trial court based its decision on the leading authority which is.....
Judgment:

D.K. Kapur, J.

(1) This is an Execution First Appeal directed against the order of the Commercial Subordinate Judge dated 21st October, 1965. The only question raised in this appeal is. as to whether the application for execution, which has led to this appeal was moved within time.

(2) The facts giving rise to the controversy may be shortly stated. A suit was instituted by Jai Narain Pershad for the dissolution of a partnership firm known as Messrs. Jiwan Lal Jai Narain Pershad. A preliminary decree for dissolution and accounts was passed in August, 1947 and a Local Commissioner was appointed. On 18th January, 1949 a final decree relating, to the accounts of the partnership was passed and a decree for Rs. 24,446-13-9 was passed in favor of Jai Narain Pershad one of the plaintiffs against R. S. Chiranji Lal & Sons. A decree for Rs. 39,470-11-6 was also passed at the same time and by the same final decree in favor of R. S. Chiranji Lal & Sons against one Jiwan Lal Shinglu. Some other smaller decrees and other orders and directions were also included in the final decree. Though the details of the same need not be set out at length.

(3) An appeal was filed by Jiwan Lal Shinglu in the Punjab High Court. The claim in the appeal was that the decree, as far as Jiwan Lal Shinglu was concerned, should be reversed. The said appeal was R.F.A. No. 72 of 1949, which was decided by the Punjab High Court on 8th December, 1959. It is important to mention that the only claim in that appeal was that the decree for Rs. 39,470-11-6 passed against Jiwan Lal Shinglu should be reduced by Rs. 30,649-2-3. There was no challenge, as far as one can find from the record of the case and the grounds of appeal in the Punjab High Court, to the decree in favor of Jai Narain Pershad. Cross-objections were filed in this appeal by some of the respondents, who were also partners in the firm R. S. Chiranji Lal & Sons, claiming an enhancement of Rs. 9,600.00 Along with future .interest to the decree against Jiwan Lal Shinglu. This claim was restricted only to the interest which had been disallowed by the trial court while decreeing the claim of R. S. Chiranji Lal & Sons against Jiwan Lal Shinglu. The judgment of the Punjab High Court dated December 8, 1959, which is on record shows that Jiwan Lal Shinglu's appeal was partly accepted and the decree against him was reduced by Rs. 24,517-8-0. The judgment of the High Court directed further that the decree would be drawn up after, the appellant, Jiwan Lal Shinglu had made up the deficiency of court-fees, it appears that after this a stamp of Rs. l,485.00 was furnished to the Court on 25th September, 1961.

(4) On 22nd November, 1960, Jai Narain Pershad sought execution of his decree amounting to Rs. 24,446-13-9 against R. S. Chiranji Lal & Sons and at that stage an objection was raised by the judgment-debtors claiming that the application for execution was barred by time. This objection was dismissed by the trial court on the ground that the limitation period for execution only commenced after the High Court gave its judgment. This decision really turns on the interpretation of Article 182 of the Indian Limitation Act, 1908. According to the said Article the Limitation is three years from the date of the decree or order and where there has been an appeal, three years from the date of the appellate court's judgment. The learned Commercial Subordinate Judge took the view that there having been an appeal to the High Court, the starting point of limitation was the date of the High Court's judgment from which the three year's period had to commence. One of the judgment-debtors, Sheo Pershad (now represented by his legal representatives) has appealed to this Court against the said decision. It is the case of the appellant that the limitation as far as the execution of this part of the decree was concerned expired long before the High Court gave its decision. It is submitted that final decree was passed on 18th January, 1949 and there was nothing to prevent the decree-holder executing this part of the decree as this was not under appeal to the High Court at all.

(5) The question in controversy depends, firstly, on the provisions of Article 182 of the Indian Limitation Act, 1908, and, secondly, on the nature of the decree which is sought to be executed. I may first of all reproduce the relevant portion of Article 182 of the Indian Limitation Act, 1908 :- Description of application. Period of Limitation. Time from which period begins to run. For the execution of a decree or order of any Civil Court not provide for by article 133 or by Section 43 of the Code of Civil Procedure 1908. Three years : or, where a certified copy of the decree or order has been registered, six years. 1. The date of the decree or order, or 2. (where there has been an appeal) the date of the final decree or order of the Appellate Court or the withdrawal of the appeal.

(6) It will be seen from column 3 above that there are two dates from which the three years' period may be calculated. It may either be the date of the decree or order, or where there has been an appeal, the date of the final decree or the order of the appellate court or even the withdrawal of the appeal. Now there has been an appeal in this case. The appeal was decided on 8th December, 1959. The three years' period calculated from then would terminate on 8th December, 1962. Admittedly, the execution application was brought before that date. If the date is taken to 18th January, 1949, which was the date of the decree passed by the trial court, then the three years' period terminated on 18th January, 1952, which was long before the execution application was moved. If the latter date is applied then clearly, the present execution application is barred. The main controversy before me is that the portion of the decree passed in favor of Jai Narain Pershad was never called in question in the appeal to the High Court and, thereforee, there is no reason why there should be an extension of limitation so as to make the period for the purpose of Article 182 commence from 8th December. 1959 instead of 18th January. 1949. On this question the trial court based its decision on the leading authority which is Nagendra Nath Dey and another v. Suresh Chandra Dey and others . There arc passages in this judgment which seem to help both sides to this appeal, and thereforee, both sides have cited several authorities which I shall presently deal with, elaborating on the decision of their Lordships of the Privy Council.

(7) I may first deal with the circumstances of the case before the Privy Council. Certain properties belonging to the parties to the litigation were the subject-matter of a partition suit which led to a Receiver of the properties being appointed with power to raise a loan by mortgaging the same. A mortgage was executed in favor of some of the co-sharers by the said Receiver. The property was then partitioned among the co-sharers and subsequently another suit was brought to enforce the mortgage. A decree was passed by the Subordinate Judge which led to an appeal to the High Court which was compromised. The High Court preliminary decree in the mortgage suit based on the compromise, devided the co-sharers into two groups, one of decree-holders and one of judgment-debtors. Some of the judgment-debtors paid the amount due but the others did not. This led to an application to the Subordinate Judge for a final mortgage decree. One of the applicants, Madan Mohan, claimed that there had been an assignment in his favor by some of the mortgagees. This claim was disallowed and a final mortgage decree was passed. This led to the filing of an appeal in the High Court by Madan Mohan which was restricted only to the question of the alleged assignment in his favor. This appeal was eventually dismissed by the High Court in August 1922, as being incompetent. When an execution applications filed Inoctober, 1923, it was contended that the execution was time barred, .haying been ..filed more than.three years after the date of the final decree which was 2nd August, 1960. The subordinate Judge held that it was not time barred but the High Court reversed this decision and this led to the appeal to the Privy Council.The three points which were raised in. the Privy Counoil were:

(I) that the appeal to the High Cburthad been held to be incompetent and, thereforee, could not lead to the extension of time; (ii) that the appeal in the High Court raised only a conflict between the mortgagees inter se and did not affect the judgment-debtors and thereforee, there could be no extension of limitation, (iii) the final decree was not at all imperilled in the appeal.

(8) The real question, thereforee, raised by the judgment debtors iin the High Court was that the decree against them had not been challenged in the appeal, and thereforee there could be no extension of liniitation by reason' of the appeal. Their Lordships held on this question as follows :-

'THERE is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But inconstruing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think the safe guide. If is at least an intelligible rule that so long there is any question sub-judice between those affected shall not be compelled to pursue the so often thorny path of execution which if the final result is against them Nor in such a case as this is the Judgment debtor prejudiced he may indeed obtain the boom of delay which is so dear to debtors and if he is vintuously inclined there is nothing to prevent his paying what he owes into Court.'

(9) On behalf of the appellant in this Court, reliance is placed on the intelligible rule that their Lordships found, namely, as long as there is a question sub-indico between the parties, these affected should not be compelled to pursue the so often thorny path of execution. It is submitted by the appellant that Jai Narain Pershad's decree was never in question in the appeal in the Punjab High Court, R.F.A. No. 72 of 1949 and hence his rights were never sub judice and, thereforee, the passage quoted above does not help the respondents. On the other hand, the respondents contend that there was an appeal and some of the questions in the suit were sub judice. I have to resolve this controversy.

(10) On behalf of the appellant, reliance is placed on Kirpal Shah Sant Singh V. Harkishan Das Harsingh Das , in which case the proposition laid down was that it is only an appeal which imperils the decree sought to be executed which would furnish a fresh start of limitation. Mr. R. M. Lal, counsel for the appellant contends that in this case, Jai Narain Pershad's decree was never imperilled in the appeal to the High Court. Reliance is also placed on Hafiz Muhammad Abdullah V. Amrao Singh and another, A.I.R. 1934 Lah 637, which was a case where four decrees were incorporated on a single paper and it was held that the paper should be read not as one decree but as four decrees. The point arising in the present case was not directly involved in that case because the contention was that an execution filed against one of the four judgment-debtors kept the limitation qua the other judgment-debtors alive also. This point was decided on the basis of Explanationn 1 to Article 182, and thereforee, this authority does not really help the appellant except to the extent that a single decree may be read as more than one decree which is a matter I shall refer to subsequently. Then reference is made to Sivaramachari V. Bayya Anjanaya Chietty : AIR1951Mad962 , where the words 'where there has been an appeal' occurring in Article 182 have been examined. According to their Lordships the true test is that the decree of the appellate court in the appeal must be the decree which is sought to be executed in order to attract the limitation commencing from the later date. It is contended before me that the decree now sought to be executed is not the decree of the appellate court i.e., the Punjab High Court because the Punjab High Court in its decree only reduced the decree against Jiwan Lal Shinglu and the & OTHERS. matter of Jai Narain Pershad's decree against R.S. Chiranji Lal & Sons was never in question.

(11) As regards the other questions involved in this case, namely, that the stamp was purchased in 1961, reliance is placed on Ram Narain Kaul and another V. Maharaj Narain Kaul and others, Air 1940 Lah 337, wherein it was held that the date of the decree for the purpose of Article 182 is the date on which the order for drawing up of the final decree was passed and not the date when the stamp-paper was supplied. I fully agree with this view. The limitation period mentioned in Article 182 starts as soon as the order of the court is passed. If the stamp-paper is not purchased and the formal decree cannot be drawn up, I see no reason why the decree should not be executable. It is open to the parties seeking execution to put in the stamp paper whenever he wishes to execute the decree; to hold otherwise would be enable the decree-holder to get extension of limitation merely by failing to purchase the stamp required for the decree. I see no provision in the Limitation Act allowing the period of execution being extended in this manner. I, thereforee, come to the conclusion that the limitation Commenced on 18th January, 1949 or on 8th December, 1959, depending on whether the time is to commence from the trial court's decree or the appellate court's decree.

(12) On behalf of the respondents, reliance is placed on Pandurang Kasho Vairagada V. Kunwarlal Singh Indra Rajsingh Air 1941, Nagpur 19, where it was held that whatever the nature of the appeal, whether it proceeds upon a ground common or not, it is the appellate court's decree which furnishes the starting point of limitation. In other words, the limitation in this case should commence from the appellate court's decree and not the trial court's decree. Then reliance is placed on Kunjammal V. Krishna Chettiar Air 1954, Mad l70, wherein it was held that the limitation of 12 years set out in Section 48 of the Code of Civil Procedure (as it then was) runs from the date of the appellate Court's decree and not from the trial court's decree even though the subject matter of the execution was not challenged in appeal. I do not think this decision is of much help as it is not based on a construction of Article 182(2) of the Indian Limitation Act, 1908, but on Section 48 of the Code.

(13) Counsel for the respondent relies on Kumiammal V. Balakrisima Tharvady and others : AIR1935Mad557 , which was a case in which certain reliefs were granted by the trial court but only some of these reliefs were appealed against. At the execution stage, it was held that the entire decree could be executed, although limitation for the umappealed reliefs if calculated from the trial court's judgment had expired, in Ghulam Hussain Shah V. Radha Rani, Air 1934, Lah 318 it was held that even if a decree was appealed against qua costs alone, even then the limitation period for the whole decree would start from the date of the appellate court's decree, Govindan V. Damodaran and others air 1952 TC 269 where it Was held that where there were distinct decrees against several judgment debtors and the appeal was filed by some judgment-debtors even then the execution against the non-appealing judgment-debtors would be governed by the date of the appellate court's decree and not the date of the trial court's decree. These authorities fully support the respondents, but as the decisions are based wholly on Nagendra Nath Dey and another V. Suresh Chandra Dey and others , which I have already cited above, they do not carry the matter any further. Then there is a judgment, Somar Singh and Others V. Mt. Premdei Kaur and others Air 1925, Patna 40, where their Lordships held that if there is anappeal against part of a decree it is really an appeal against the whole decree, because the appellate court has power to grant relief to the non-appealing parties by reason of Order 41, Rule 33, of the Code of Civil Procedure. If this argument were to prevail, the effect ofthe Privy Council decision would be that whatever the nature of the decree and whatever the nature ofthe appeal, the limitation period for execution would commence from the date of the trial decree by the appellate Court. I cannot accept this as the correct view.

(14) On the other question, namely the furnishing of court-fees, reliance has been placed on Babu Ram V. Gopal Sahai : AIR1938All539 , where it was held in a case where the court-fees were paid three years after the decree, the limitation period would start only after the payment of the court-fees. I do not agree that this is the correct view. Reliance was placed in this judgment on the provisions of Section 11 ofthe Court Fees Act which provide that a decree will not be executable till the deficiency in court-fees has been made up. For instance, in a suit for accounts, the decree is not executable till the difference is court-fees required to be made up by the court has been made up. It is true that a decree is not executable till the difference in court-fees has not been made up, but this is no way entitles the party who delays making up the deficiency to claim extension of limitation on account of his own delay. There is no such provision in any law.

(15) The rival contentions of the parties to this appeal may now be examined in the light of the Privy Council judgment and also in the light of the decree passed in this case. I may at this stage re-produce the relevant portions of the decree which runs as follows :-- the following final decree is awarded :-

'(1) A decree for Rs. 24,446/13/9 is passed in favor of Jai Narain Pershad, plaintiff No. 1, against R. S. Chiranji Lal & Sons, of which plaintiff No. 2 and defendant Nos. 3 to 8 are its partners. (2) A decree in favor of R. S. Chiranji Lal & Sons (Plaintiff No. 2 and defendants Nos. 3 to 8) is passed for Rs. 30,470/11/6 against Pandit Jiwan Lal Shinglu defendant No. 1.... ........'.

(16) It will be seen from this that though the two decrees are on one paper they are two decrees. The final decree has several other clauses, some of which need to be reproduced here, for example, clause (4) of the decree states 'that the realiseable assets of the firm shall be realised by R. S. Chiranji Lal and Sons according to the shares of the partners.' Clause (3) runs as follows:-

'ADECREE for Rs. l,441.00 and Rs. 1,500.00 on account of the salaries of Pearey Lal Garg and Sham Lal Garg respectively is passed in favor of the plaintiff No. 1 against R. S. Chiranji Lal and Sons according to the shares of the partners.'

(17) It is obvious that as soon as this final decree was passed and no appeal was taken except against one of the clauses, all the other clauses became executable. Hence, for example, R. S. Chiranji Lal and Sons could realise the assets; they did not have to wait till the appeal was decided. I am unable to see, without any very compelling reasons, as to why the decree in favor of Jai Narain Pershad could not be executed as soon as it was passed. The two decrees to my mind are absolutely separate though incorporated in the same document. Similarly the other clauses of decree are also separate and immediately executable. The judgment of the Privy Council, reproduced above, makes it quite clear that it is only when a decree is sub-Judice that the party whose claim is sub-judice (A) is not compelled to execute the decree, because it might eventually lead him to getting no advantage at all. Here, there was nothing to restrain Jai Narain Pershad From recovering the amount decreed against R. S. Chiranji Lal and Sons as the decree was passed because his claim was not sub-judice in the appeal in the High Court. If he has. realised the money by execution, he could not have been asked to restore the amount to the judgment-debtors because his claim was not under challenge. I think the observations of the Privy Council make it quite clear that the decree-holder is only entitled to defer taking out execution till after the appellate decree only in those cases where his decrees is under challenge in the appellate court where possibly his rights might be altered. For example, in the case before the Privy Council, the appeal in the Calcutta High Court though restricted to a dispute between the decree-holders iner-se might, if the result had been different, have altered the rights of the decree-holders. They were, thereforee, entitled to await the decision of the appeal. The words occurring in the Privy Council's judgment : 'if the final result is against them may lead to no advantage' clearly indicate that what the Privy Council had in mind was a case in which the decree sought to be executed was imperilled by the appeal. In the present case, Jain Narain's decree was not under challenge in the High Court, ft could thus not be affected by the appellate decree.

(18) There is a judgment of the Bombay High Court reported as D. M. Jacinto and another v. J.D.B. Fernandez. Air 1939, Bom 454, in which a decree passed by the trial Court on 27th May, 1925, directed the partition of certain property, partly by the Collector and partly by Local Commissioner. As far as the property assessed to Government revenue was concerned, the partition was to be carried out by the Collector who was also to put the parties in possession. As far as the remaining property was concerned, the final decree was to be made on the recommendation of a Local Commissioner. An appeal, restricted to the property partitioned on the Commissioner's report was decided on 16th January, 1931. The High Court held that there were two distinct decrees in the same suit. It was held that there was a decree of 1925 qua the property assessed to Government revenue and a decree of 1931 qua the house property, both made in the same suit. They observed as follows:-

'IT is perfectly plain on the language of' Article 182 that the words 'where there has been an appeal' in the last column, mean an appeal from the decree sought to be executed and not an appeal from another decree, though made in the suit.'

(19) These observation fully apply to the prevent case. I here were at least two decrees made in the same suit but part of the same final decree, one decree was appealed against and the other was not. The words 'where there has been an appeal' relate to the decree sought to be executed. I find there was no appeal against the decree sought to be executed in these proceedings, and hence have to hold that the limitation for execution to commence from the date of the trial court's decree.

(20) I come to the conclusion from this discussion and the facts and circumstances of the case that the High Court's decree in appeal had no bearing whatsoever on the rights of Jai Narain Pershad. The only decree passed by the High Court was to reduce the decree against Jiwan Lal Shinglu, In that controversy. Jai Narain Pershad was neither the judgment-debtor nor the decree-holder. His decree was never imperilled; his claim was never sub-judice; any realisation he could have made in execution was never in danger, any advantage he might have got in execution could not be set aside or negatived by reason of the appellate Court's eventual decision. I thereforee conclude, tint in the present case, the starting point of limitation as far as Jai Narain Pershad is concerned was the date of the trial court's decree because the appellate court's decree is not at all concerned with him and the appeal in the appellate court did not raise any challenge to his decree.

(21) As a consequence of my findings, I have to accept this appeal and consequently I hold that the execution application of Jai Narain Pershad has to be dismissed as being barred by time. However, in view of the nature of the controversy between the parties, I leave the parties to bear their own costs throughout.


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