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Shankar Lal Vs. Shadi Ram Ram Swaroop and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revisional No. 2D of 1966
Judge
Reported in7(1971)DLT311
ActsSlum Area (Improvement and Clearance) Act, 1956 - Sections 19; Limitation Act, 1908 - Sections 9
AppellantShankar Lal
RespondentShadi Ram Ram Swaroop and ors.
Advocates: R. Dayal and; A.C. Sehgal, Advs
Cases ReferredS. Khanna v. Brig
Excerpt:
.....mentioned hereinafter in detail had been filed on account of the provisions of section 19 of the slum areas (imp- rovement and clearance) act of 1956 which came into force on 8th fe- bruary, 1957 on the averments of the parties the following question was framed for determination by the trial courts :whether the application was within limitation ? (3) the objection of the petitioner failed before the trial court which answered the issue in the afinmative and held that the applica- corporation was within limitation and not (4) it is common ground between the parties that the decree in question was passed on 26th july, 1955 and the judgment-debtor was required to deposit the decretal amount by 15th november, 1955 which he failed to pay and became -liable to eviction, below are mentioned..........mentioned hereinafter in detail had been filed on account of the provisions of section 19 of the slum areas (imp- rovement and clearance) act of 1956 which came into force on 8th fe- bruary, 1957 on the averments of the parties the following question was framed for determination by the trial courts :- whether the application was within limitation (3) the objection of the petitioner failed before the trial court which answered the issue in the afinmative and held that the applica- corporation was within limitation and not barred by time. aggrieved by the said order the petitioner has come up in revision under section 115 to the civil procedure code. (4) it is common ground between the parties that the decree in question was passed on 26th july, 1955 and the judgment-debtor was required.....
Judgment:

B.C. Misra, J.

(1) This revision petition has been filed by the tenant judgment-debtor and it raises an interesting question of law. The material facts of the case giving rise to the revision are in a narrow compass. Shadi Ram and Ram Sawarup are the owners and landlords of the property in which the petitioner before me has been the tenant. The respondents instituted a civil suit for eviction of the peti tioner under Section 13 of the Delhi Rent Control Act, 1952 on various grounds mentioned in the plaint, one of them being non-payment of rent. On 26th July, 1955, a compromise decree was passed against the petitioner-tenant in favor of the landlord directing the payment of arrears of rent due by certain date and in default, the petitioner was lia, ble to eviction. Eventually the petitioner did not comply with the conditions of the decree and became liable to eviction. On or about 20th May, 1960 the landlord owners assigned the decree in favor of the respondent before me by a registered deed. After the assign-ment the respondents on 21st May, 1984 moved an application for eviction of the tenant which was met with the olea that the same was barred by limitation as prescribed by Article 182 of the Limitation Act of 1908. The validity of this plea is the subject matter of the revision

(2) In reply to the said objection, the respondents urged that the execution was within time as steps in aid of execution had been taken and the execution applications mentioned hereinafter in detail had been filed on account of the provisions of Section 19 of the Slum Areas (Imp- rovement and Clearance) Act of 1956 which came into force on 8th Fe- bruary, 1957 On the averments of the parties the following question was framed for determination by the trial Courts :- Whether the application was within limitation

(3) The objection of the petitioner failed before the trial court which answered the issue in the afinmative and held that the applica- corporation was within limitation and not barred by time. Aggrieved by the said order the petitioner has come up in revision under section 115 to the Civil Procedure Code.

(4) It is common ground between the parties that the decree in question was passed on 26th July, 1955 and the judgment-debtor was required to deposit the decretal amount by 15th November, 1955 which he failed to pay and became -liable to eviction, below are mentioned the dates of various ex.cution applications with their results which are not in dispute.

Sr. Date of Date of Result Remarks No. application decision 1. 22-8-1956 19-4-1958 Dismissed As unsatisfied. 2. 18-2-1960 16-7-1960 dismissed (Slum Areas Act came into force on 8-2-1957), As infructuous. 3. 1-12-1960 21-1-1961 Dismissad Assignment was recognised since the property was situated in Slum Areas and the permission had not been obtained, the execution application vas dismissed as infructuous. 4. 21-5-1964 ... Pending Limitation objection was dis- posed of on 8-10-1965.

(5) In view of the dates and facts mentioned above, the learned counsel for the petitioner has assailed the impugned order of the Court below on the grounds namely :- (1) The time during which the Slum Areas (Improvement and Clearance) Act had been inforce and the decree was not executed could not be excluded as the Act came into force after the decree had become executable and thereforee, under section 9 of the Limitation Act, 1908 no subsequent disability or in- ability could stop the running of the time. (2) Time spent in obtaining permission of the Competent Authority could not be excluded as there was no provision in the Limitation Act, 1908 permitting the said ex- clusion and as well as because the application had already become barred hy time before the permission had been applied for. (3) The first second and third applications were not steps in aid of execution in accordance with law.

(6) Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956, the effect of which has to be considered in this case, reads as folio's :-

'19(1)Notwithstanding anything contained in any other law for the time being in force no person shall except with the previous permission in writing of the competent authority :- (a) institute, after the commencement of the Slum Areas (Im- provement and Clearance) Amend Tient Act 1964 any suit or pro- ceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area or (b) where any decree or order is obtained in any suit or pro- ceeding instituted before such commence ment for the eviction of a tenant from any buiiding or land in such area, execute Suca d-cree or orcer. (2) Every person desiring to obtain the permission refeired to in sub-section (1) shall make an application in writirg to the com petent authority in such form and containing such particulars as may be prescribed. (3) On receipt of such application, the competent authority after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances oi the case as it thinks fit, shall by order in writing either grant of refuse to grant such permission. Clauses (1) & (5) of Article 182 of the Limitation Act, 1908 read as follows:-

Article 182: For the execution Three years or 1. The date of the decree or of a decree or order where a certi- order, or of any Civil Court fied copy of the 2. ...,.,,.,.............,.. not provided for by decree or order 3. .................. ......... Article i83 or by sec- has been regis- 4. .......................... lion 48 of the Code tered six years. 5. (Where the application next of Civil Procedure, hereinafter mentioned has 1968 (V of 1908). been made) the date of the final order passed on an appli cation made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order, or

Section 9 of the Limitation Act on which the learned counsel relies reads as follows:- Where once time has begun to run, no subsequent disability or inability to sue stops it. Section 9 of the Limitation Act 1908 in terms does not apply to the applications but it only applies to suits but by judicial authority, the word 'to sue' has been extended to include the execution applications and if the said extension is accepted, it would follow that the right to sue must be available in respect of each application for execution and the limitation prescribed in Clause (5) of Article 182 of the Limitation Act must be considered separately in respect of each application and not generally with respect to the execution of the decree from the date of the decree. As such for the applicability of s ction 9 of the Limita- corporation Act, it is essential that the causee of action or the right to move the application must continue to exist and subsisting on the date, the particular application ought to have been moved and if it be found on that date that the right itself had been taken away by subsequent events like prohibition contained in the enforcement of Slum Are is Act, no question of subsequent disability or the bar of limitation will arise, as the starting point of limitation for the particular application will be deemed not to have commenced. In Rameshwar Singh v. Homesuwar Singh the Privy Council followed its previous decision Sha,k Kumar- din ahmad v , JuwahaurLal and observed that in order to apply the provisions of Limitation Act, the decree sought to be enforced must have been made in such form as to render it capable in the circumsta- nces of being enforced. From the said observations it follows that under the law the decree itself or the right to take out execution should remain subsisting but if statute makes the decree inexcutable or takes away the right to take out execution, irrespective of disability or inabi- lity of the decree-holder the starting point of limitation would not commence. In : AIR1935Cal333 Jateendra Chander Bandopa- dhyay and others v. Rabateemohan Das and others', the High Court of Calcutta observed as follows- Assuming that the words 'to sue' in Section 9 of the Limitation Act include an application for delivery of possession, in our judgment the section contemplates cases where the cause of action continues to exist. It cannot apply to cases where the cause of action is cancelled by reason of subsequent events. The lan- guage of Column 3 Schedule I, Limitation Act should be so interpreted as to carry out the true intention of the legislature, that is to say, by dating the cause of action (m a date when the remedy is available to the party.' In my opinion of the prohibition contained in the Slum Areas Act deprives the decree-holder of his right to execute the decree, it would be found that the right to move the application has it self been taken away and in that case no question of suspension of period of limitation or stopage of the running of the time would arise because in the absence of his right an remedy to move the particular applica tion, the bar of limitation to move it will be deemed not to have com menced to operate. I thereforee, hold that section 9 of the Limitation Act does not govern the case and the application in dispute is not' barred.

(7) The learned counsel for the petitioner agrees that if the decree had been passed after the commencement of the Slum Areas Act, the above mentioned principle of law would be applicable and he does rot dispute the correctness of the authorities reported as Ram Kirpal v. Jain Sweitamna Temple Buildings*, Pearey Lai v Krishan Sarup and on unreported judgment of P.D, Sharma J. in E, 159-D of 1964 decided on 27th December, 1965. The learned counsel submits that the afore- said principle would not apply to a case where the decree had been passed beiore the commencement of the Slum Areas Act and the im- position of the bar mentioned therein. I am unable to agree with the learned counsel and am of the view that the same principle which ap plies to the first application for execution of decree passed after the commencement of the Slum Areas Act would apply to each successive application for execution which is moved after the imposition of the atoresaid bar. As a result I answer the first contention of the petitioner against him.

(8) Learned counsel for the petitioner has however, cited anumber of authorities relating to the effect of section 28(2) of the Provincial Insolvancy Act 1920 nernely Peary lal v. Kishan Sarup A.I. R. 1963 mad.284, A.I.R. 1963 Ail 180, Air 1928 Lah. 270 Nawal Khan v. Fateh Mohamed, Firm Hira Lal Gndharii Lal v- Batj Nath'. from the the said authorities the learned counsel desrie to draw an )inferemce that the bar of section 19 of the Slum Areas Act is similar to the one contained in the aforesaid provision of Insolvancy Act and thereforee, the execution applications were not saved from limitation. In my opinion the said authorities do not assist the petitioner. These cases mainly turn on consideration of section of the limitation Act but no one before me has relied upon section 15 of the Limitation Act as a ground of exemption Irom the running of limitation. The provisions of section 28 of the lnsoivancy Act are differertly worded and the object behind them is different. Firstly the provisions of Insolvancy Act are in like the Slum Areas Act a permanent statute. Secondly the scheme of law of insolvancy is that the insolvancy Court by the force of law takes possession of the entire estate of the insolvent and settles the claim of the creditors and grants them relief proportionately according to the insolvancy law. Under these circumstances sub-section (2) of section 38 prescribes a bar against any creditors to have any remedy against the property of the insolvent or to commence any suit or other legal proceedings against him without the leave of the Court. The object of the bar is the the administration of the estate of the insolvent by the insolvency court may not be disturbed, and the creditors have normally to find their relief in the Insolvancy Court out of the assets of the insolvent vesting in the Court except under certain special cil cumstances. The Slum Areas Act on the other hand, does not deal with the right of the landlord decree-holder to obtain eviction of the tenant and does not give him any assistance in the matter and he has still to move the civil court or the Controller to obtain possession of the property in execution of the decree or order for eviction. The Com- petent Authority Slum Areas is only concerned with the fact that their scheme of removal of the slums and settlement of the occupants in pro per residential quarters is not jeopardised when there is in flax of large number of poor tenants thrown oat of their houses, and as soon as either the scheme is completed or the Competent Authority finds that the tenant is not of the category who is likely to create another slum the permission is usually granted but the decree-holder has still to come to the execution Court. Thirdly the relevant provision of inSolvancy Act lays down that no creditor shall have any remedy aga- inst the property of the insolvent, nor will he commence any suit or legal proceedings without the leave while section 19 of the Slum Areas Act only deals with the execution of decree for eviction which in other words means dispossession of the tenant in execution of the order for p( ssefsion. Hence I find that the provision of Insolvancy Act and the authorities dealing with the same do not lend any assistance in resolv ing the problem before me.

(9) With regard to the second contention of the learned counsel for the petitioner, I am of the view that it is not necessary to decide the same in view of my finding on the first contention However, in order to complete the record I hold that in my opinion unless and un til permission had been obtained from the Competent Authority, the right of the' decree-holder to take out the application for execution of the decree would not arise and so the starting point of limitation would not run against him during the period the bar of Slum Area.- is in operatiob There is no question of any suspension of fight to exicute the decree nor is it nicessary to find any justification or exemption from the bar of limitation either in any provision of the Limitation Act and obviou- sly section 15 of the Limitation Act has no application to the case in hand.

(10) With regard to the third contention, I find that the arguments of the learned counsel are fallacious. If during the period the embargo placed by section 19 of the Slum Areas Act or execution of decree is in operation,the decree-holder does not file any application for execution, he is met with the plea that he has run out of tine while on the other hand, if he filed one to save limitation or otherwise he is told that his appli cation was not step in aid according to law and so he was again out of time In the nature of things it is impossible for the decree-holder to move the Competent Authority Slums and obtain permission within the period of three years from the date of the decree provided by Article l82 of the Limitation Act 1908 while it is possible for the tenant judgment debtor to delay the proceedings before the Competent Authority by three, four or more years. Again if the authority grants permission after a long time or first refuses and later on grants the permission, the landlord on the construction placed by the counsel for the petitioner would be remediless, although he might be possessing a legal and valid decree which is capable of execution. Such absurd results would not be intended by the legislature. Embargo imposed by section 19 of Slum Area Act can be lifted in three ways, firstly by repeal of the Act, secondly by notification of the area where the property in dispute is situa- ted in the list of Slum Areas and thirdly by grant of permission to excute the decree either by Competent Authority or by the Administrator on appeal, and the decree-holder is well entitled to assume that during the pendency of the execution the bar may be lifted in any one of the aforesaid three or other way. The application for execution, thereforee, moved by the decree-holder which satisfied the requirements of the Code of Civil Procedure and which has the effect of saving limitation will be deemed to be a step in aid according to law particularly, when there is a possibility of the Court granting execution an the lifting bar of the Slum Areas Act, there is no good reason to hold such an applica- corporation to be not according to law. But it is not necessary for me to decide this question finally as coming to the facts of the instant case Ifind that the applications are otherwise according to law.

(11) The first application for execution mentioned above was filed on 28th August, 1956 before the enforcement of the Slum Areas Act and nothing has been urged against the said application being according to law. As a matter of fact, the executing Court ought to have kept the said application pending on Its file and it ought to have only adjourned the application sine die with liberty to the decree-holder to revive it on receipt of permission of the Competent Authority Slums. The Court erred in dismissing the application on 19th April, 1950 as infructuous, and since the dismissal was illegal it is possible for me to hold that the application is in law still pending and the subsequent applications would only amount to revival of the same. For the sake of argument I ignore fram consideration the -secord application, The third applicat- ion moved on 1st December, 1966 was filed within three years of the final order on the first application namely 19th April 1958 In this executicn application, it has been urged that the deecree had been assig- ned and the assignee be recognised as naving a right to execute the decree in place or original decree, Recognising of this assignment by the executing Court was not at all barred by section 19 of the Slum Areas Act or any other provision of law and it is not denied that the executing Court retained the jurisdiction to recognise the assignee. Notice (the alleg'd assignment was issued to the judgment-debtor and he appeared and consented to the assignment upon which the Court brought the assignee on the record. This execution application was un- exceptionably according to law and the mere fact that the assignee did not succeed In obtaining warrant of possession from the executing Court will not turn application as being not according to law. it may be mentioned that the assignee obtained permission of the Competent Authority Slum and filed his application for execution within three years of the last order on the application which is according to law. As a result, [hold that the execution application giving rise to.) the suit is within time prescribed by Claase (5) of Article 182 of the Limi tation Act,

(12) Lastly, but of the greatest importance is the fact that the petitioner judgment debtor has come to this Court invoking the Jurisdiction diction under section 115 of the Civil Procedure Code that decision of the trial Court, on the question of jurisdiction undoubtedly comes with- in the ambit of Jurisdictional error which can be corrected by this Court but as has been laid down by the Supreme Court in Maj S S. Khanna v. Brig F J Dhillon, the High Court is not bound to exercise its revisional powers even if all the conditions specified in section 115 of the Code of Civil Procedure have been fulfillled and it will definitely be sound exercise of discretion to refuse to interfere with the impugned order which has advanced the interests of Justice and which is being assailed by the jujdgment-debtor who has succeded in resisting execution and has succeeded in unlawfully sticking to the possession of the pro- perty which he was bound by the decree of 26th July, 1955 to vacate. The conduct of the judgment-debtor may be examined in greater de- tails. He did not allow the first execution application to be executed to its logical end and he stood by the 2nd and 3rd execution applica- tions and did not raise any objection to the 3rd execution application where the assignment was recognised and he did not raise the present objection against the legality or validity of the applications moved by the decree-holder previously. I believe he must also be responsible at least partly for 22 months time taken by the Competent Authority Slums to grant permission to the decree holder to execute the decree. Thi judgment-debtor who has not obeved the order of the Court for eviction for about fifteen years and has come to this Court raising high- ly technical pleas is cot entitled to the indulgence of the Court in exer- cise of its discretion. Under the circumstances, I do not find that there is any satisfactory reason to interfere with the impugned order As a result I dismiss the revision petition in the circumstances of the case leave the parties to bear their respective costs. The parties are direct- ed to appear in trial Court on 29th July, )1970.


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