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The State of Rajasthan Vs. Rustamji Savkasha - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 534 of 1971
Judge
Reported inAIR1972Guj179
ActsCode of Civil Procedure (CPC), 1908 - Sections 39 - Order 21, Rules 6 and 10; Limitation Act, 1908 - Schedule - Article 185(3)
AppellantThe State of Rajasthan
RespondentRustamji Savkasha
Appellant Advocate Y.B. Bhatt, Adv.
Respondent Advocate B.R. Shelat, Adv.
Cases ReferredIn Kandula Narasimha Rao v. Veerini Surayya
Excerpt:
.....to schedule of limitation act, 1908 - no application for execution of decree made in court which passed decree - decree-holder only made miscellaneous application for transfer of decree - application for execution necessary to be filed by decree-holder in transferee court irrespective of whether copy of decree passed reached to transferee court or not - merely because transferee court asked for translations of papers sent to it and papers after being translated received back by transferee court on subsequent date - such subsequent date cannot be said to be date of final order for purpose of limitation period - period of limitation commenced from date when order of transfer made. - - senior division on 27.11.1967. 3. the learned civil judge, senior division, found that this..........time-barred.2. the facts giving rise to this appeal, briefly stated, are as under:the date of the decree passed in special civil suit no. 6 of 1953, by the district court, alwar, rajasthan, is 13.12.1955. on 13.12.1956, the decree-holder filed darkhast no. 34 of 1958 in the district court at alwar. on 14.7.1959, it was disposed of as there was no property of the judgment - debtor within the territorial jurisdiction of that court. on 20.2.1960, the decree holder filed miscellaneous application no. 6 of 1960 in the district court, alwar, to transfer that decree to the court of the district judge, panchmahals at godhra. on 5.3.1960, the order of transfer prayed for, was made and on the even date, certificate of non-satisfaction, as required, was also issued. these papers were in hindi.....
Judgment:

1. This is an appeal filed by the State of Rajasthan, original decree-holder, against the respondent (judgment-debtor) under Section 47 of the Civil P. C. (which will be hereinafter referred to as 'the Code'), against the order passed by the learned Civil Judge Senior Division, Godhra, dated 24.12.1970, dismissing Special Darkhast No. 9 of 1967, filed by the appellant, to execute a money-decree obtained by it against the respondent in Special Civil Suit No. 6 of 1953, of the District Court of Alwar in Rajasthan. The Darkhast has been dismissed on the ground that it has been time-barred.

2. The facts giving rise to this appeal, briefly stated, are as under:

The date of the decree passed in Special Civil Suit No. 6 of 1953, by the District Court, Alwar, Rajasthan, is 13.12.1955. On 13.12.1956, the decree-holder filed Darkhast No. 34 of 1958 in the District Court at Alwar. On 14.7.1959, it was disposed of as there was no property of the judgment - debtor within the territorial jurisdiction of that Court. On 20.2.1960, the decree holder filed miscellaneous Application No. 6 of 1960 in the District Court, Alwar, to transfer that decree to the Court of the District Judge, Panchmahals at Godhra. On 5.3.1960, the order of transfer prayed for, was made and on the even date, certificate of non-satisfaction, as required, was also issued. These papers were in Hindi language. Those papers were received by the District Court Godhra on 14.3.1960. The District Court in its turn sent those papers to the Court of the Civil Judge. Senior Division. Godhra on 5.4.1961. Civil Judge, Senior Division, Godhra, suo motu sent the papers back to the District Court, Alwar for translating those documents, as those documents were in Hindi language, on 7.4.1961. On 10.4.1961, papers were received back at Alwar. On 11.5.1961. papers were translated. New certificate of non-satisfaction was re-issued in English language. All those papers with translation were received back by the District Court, Godhra, on 12.6.1961. Present Special Darkhast No. 9 of 1961 was thereafter filed by the decree-holder (appellant ) in the Court of the Civil Judge. Senior Division on 27.11.1967.

3. The learned Civil Judge, Senior Division, found that this Darkhast was clearly time-barred. The final order was passed in Miscellaneous Application No. 6 of 1960 by the Alwar District Court regarding transfer of the decree to the Executing Court on 5.3.1960 and certificate of non-satisfaction was also issued on that date. The period for filing an application for execution commenced from that date. Darkhast has been filed on 27.11.1967, i.e. more than three years after that relevant date, when the period of limitation commenced, viz. 5.3.1960. and the right to execute the decree having been already time-barred, prior to the date of coming into force of the Limitation Act, 1963 (which will be hereinafter referred to as the 'new Act'), i.e., 1.1.1964, that Darkhast was time-barred.

4. Mr. Y. B. Bhatt, learned Asstt. Govt. Pleader, appearing for the appellant, urged that it was only on 11.5.1961, when the papers were translated and new certificate of non-satisfaction was re-issued in English language, the period of limitation would commence. Prior to the expiry of three years from that date, when the right to execute would be time-barred under the Indian Limitation Act, 1903 (which will be hereinafter referred to as the 'old Act'), the new Act having come into force on 1.1.1964, the period of limitation would be governed by Article 136 of the New Act. The decree we dated 13.12.1955, and this Darkhast had been filed on 27.11.1967. It therefore, means that the Darkhast has been filed within 12 years from the date of the decree. That being the position, the Darkhast is not time-barred.

5. Mr. Bhatt's submissions were :

(1) Date from which period of limitation commences is the date when the material papers were received by the District Court. Godhra, after the necessary translations, i.e., 12.6.1961.

(2) In the alternative, relevant date is the date of translation itself, i.e. 11.5.1961.

(3) Even if it is found that the execution application is filed beyond time, the delay was caused by the order of the Court in requiring translated copies and time taken in translation.

(4) Under unique circumstances of the case, provisions of Limitation Act should be construed in favour of the judgment - creditor according to the principles of justice, equity and good conscience.

6. Before I advert to the authorities cited at the Bar, I first propose to refer to a few relevant sections and the rules of the Code.

7. Section 38 of the Code reads:

'A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.' Section 39 of the Code reads:

'(1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to an other Court,--

(a) XXX XXX XXX

(b) XXX XXX XXX

(c) XXX XXX XXX

(d) XXX XXX XXX

(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.'

Section 42 of the Code reads :

'The Court executing a decree sent to it shall have the same powers in executing such decree as if it has been passed by itself ... ... ... And its order in executing such decree shall be sub ject to the same rules in respect of appeal as if the decree has been passed by itself.'

The wording of this section makes it abundantly clear that the Court executing a transfer decree has the same powers as if the decree had been passed by itself.

8. The present case is a case where Section 46 of the Code cannot have any application. That section reads:

(1) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any proper belonging to the judgment - debtor and specified in the precept.

(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree.'

If it is a case where Section 46 of the Code would have application, control re mains with the executing Court.

Order 21. Rule 5 of the Code reads :

'Where the Court to which a decree is to be sent for execution is situate within the same district as the Court which passed such decree, such Court shall send the same directly to the former Court. But, where the Court to which the decree is to be sent for execution is situate in a different district, the Court which passed it shall send it to the District Court of the District in which the decree is to be executed.'

So far as Allahabad, Bombay and Gujarat High Courts are concerned, due tot High Court Amendments, for the word 'District' where it occurs after the would 'name' and 'different' one has to read 'State'.

9. Order 21. Rule 6 of the Code, which is material for out purposes, reads:

'The Court sending a decree for execution shall send-

(a) a copy of the decree;

(b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied; and

(c) a copy of any order for the execution of the decree or, if no such order has been made, a certificate to that effect.' These are the papers to be sent by the Court sending the decree for execution to the transferee Court.

Order 21. Rule 7 of the Code reads:

'The Court to which a decree is so sent shall cause such copies and certificates to be filed, without any further proof of the decree or order for execution, or of the copies thereof, unless the Court, for any special reasons to be recorded under the hand of the Judge, requires such proof.'

Order 21. Rule 8 of the Code reads:

'Where such copies are so filed, the decree or order may, if the Court to which it is sent is the District Court, be executed by such Court or be transferred for execution to any subordinate Court of competent jurisdiction.'

Order 21. Rule 10 of the Code, which is the material rule for our purposes, reads :

'Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to an other Court then to such Court or to the proper officer thereof.'

In the instant case, what the decree-holder did was that it applied to the District Court. Alwar for transfer of the decree to the District Court at Godhra and an order came to be passed in that miscellaneous application for transfer and requisite certificate came to be issued on 5.3.1960. In view of these clear provision of Order 21, Rule 10 of the Code, a duty was case upon the appellant, the holder of the decree, if he desires to execute it, to file an application for execution to the Court where the decree was transmitted for execution or to the proper officer thereof.

10. Order 21. Rule 11 of the Code refers to the particulars required to be mentioned in such execution application. It is, therefore, evident that it was necessary for the appellant decree - holder to file such execution petition in the executing Court to which the decree was transferred for execution and that has been admittedly done on 27.11.1967, meaning thereby, more than three years after the date of the final order, viz 5.3.1960, and after the right to execute the decree had become already time-barred prior to the coming into force of the new Act. An application for transfer is a step-in-aid for execution. There is no dispute re-garding that proposition. It can also be said without any hesitation that an application for transfer is not an application for execution. It is also an admitted position that miscellaneous Application No. 6 of 1960 filed by the petitioner in the transferring Court was merely an application to transfer. It was no an application for execution. It therefore, means that it was a step-in-aid for execution.

11. Learned Author Mulla, in his book. 'Code of Civil Procedure'. 13th Education, Volume I. At page 205, under the caption - 'Initiation of Proceedings on transfer of decree' -- comments:

'Where a decree is transferred for execution to another Court, it is the application for execution to that Court, which initiates the proceedings in execution. The receipt of the decree is a ministerial Act.'

A transfer of a decree under Section 39 of the Code to any Court takes effect, in my opinion, from the date of the order of transfer. After such date, the transferee Court has jurisdiction to entertain an application for execution even if the copy of the decree is not received by it. Some Courts have also taken a view that the omission to send a copy to the Court executing the decree, as required by clause (b) of Rule 6 of Order 21 of the Code, is mere irregularity and does not affect the jurisdiction of the transferee Court to entertain an application for execution. It has also been held that a mere mistake in the certificate of nonsatisfaction as to the number of the suit or names of the judgment - debtors will not affect the jurisdiction of the executing Court to proceed with the execution.

12. Learned Authors Chitaley and Rao, in their Book, 'AIR Commentaries, The Code of Civil Procedure, 1908'. 7th Edition, Volume III, at page 3802, noted certain cases on this point. The comments made are:

'Where an order has been made by the Court which passed a decree for transfer to another Court, the decree-holder is entitled to apply for execution to the transferee Court, even before the Copy of the decree has been received by the latter from the former Court. The reason is that the order of transfer is a judicial order and therefore, takes effect from the date on which it was passed.' I need not dilate further on this point, as there are pertinent observations made by the Supreme Court in Mohanlal Goenka v. Benoy Kishna Mukherjee : [1953]4SCR377 , which are, in my opinion, material. Das, J., has observed: 'The Civil P. C. Does not prescribe any particular form for an application for transmission of a decree under Section 39. Under sub-section (2) of that section the Court can even suo motu send the decree for execution to another Court.'

It is further observed at page 67:

'It is true that Order 21. Rule 6 provides that the Court sending a decree for execution shall send a copy of the decree, a certificate setting forth that satisfaction of the decree had not been obtained by execution within the jurisdiction of the Court and a copy of the order for the execution of the decree but there is authority to the effect that an omission to send a copy of the decree or an omission to transmit to the Court executing the decree the certificate referred to in clause (b) does not prevent the decree-holder from applying for execution to the Court to which the decree has been transmitted. Such omission does not amount to a material irregularity within the meaning of O. 21, R. 90 and as such cannot be made a ground for setting aside a sale in execution. Further, the fact remains that the certified copy of the decree and the certificate of non-satisfaction which had been sent by the High Court to the Asansol court on 15.4.1931 through the District Judge of Burdwan who forwarded the same to the Subordinate Judge at Asansol were still lying on the records of that Court and the sending of another certified copy of the decree and a fresh certificate of non-satisfaction by the High Court would have been nothing more than a formality. In the circumstances, the omission to send those documents over again to the Asansol Court was a mere irregularity which did not affect the question of jurisdiction of the executing Court. In my opinion, after the order made by the High Court on 27.3.1933 had been communicated to the Asansol Court, the Asansol Court became fully seised of jurisdiction as the executing Court and none of the proceedings had thereafter in that Court can be questioned for lack of inherent jurisdiction.'

The present case stands on a stronger footing. The order of transfer was made on 5.3.1960. Certificate of non-satisfaction was also issued on the same day. Those papers were received by the District Court on 14.3.1960 which were in its (sic) turn sent to the Civil Judges, Senior Division, Godhra, on 5.4.1961. Sending of papers back for translation and sending back of those papers after translation were mere formalities.

13. Mr. Bhatt invited my attention to the decision of Calcutta High Court in Ananta Kumar Shyam Roy v. Surendra Kumar Mitra : AIR1947Cal424 , it is observed :

'It may pointed out that in none of the cases above referred to the applicability of Section 48, Civil P.C. was directly under consideration. Section 48, Civil P.C. requires that the application for execution should be presented within 12 years of the date of the decree. It is the presentation of the application within the time limit prescribed which matters. If the presentation is irregular at the inception and the irregularity is subsequently cured, the application so presented relates back to the date of presentation.'

In my opinion, these observations do not lend support in any manner to the submission made by Mr. Bhatt. In terms it is stated therein that what matters is the presentation of an application within the time limit prescribed. In the instant case, in view of the provisions of O. 21, Rule 10 of the Code, decree-holder was bound to present an application for execution within a period of three years and it had been not done so. The application for execution was, therefore, clearly time-barred.

14. Decision of the Division Bench of Calcutta High Court in Amarendra Nath Mallick v. Balai Chand Ghatak : AIR1936Cal267 , has also no application, as there was an application filed to the Court which passed the decree. It is observed therein :

'A decree-holder has always a right to apply as of course to the Court which passed the decree for its execution even if it be in respect of property outside the territorial jurisdiction of such court and even if execution by such Court can be no more than execution by transmission to another Court.

Even after the transfer of a decree for execution to another Court, the transferring Court retains jurisdiction over the execution though for certain specific purposes only'.

We are not concerned with any such question in the present case as the appellant had merely filed Miscellaneous Application No. 6 of 1960, in Alwar District Court for transferring the decree for execution to the District Court at Godhra.

15. In K. B. Dutt v. Taraprasanna Roy Chaudhury, ILR 2 Pat 909 = (AIR 1924 Pat 120) a Division Bench of the Patna High Court has made the following observations:-

'Under order 21. Rule 6 read with Section 39, Civil P. C., where there has been no application for the execution of the decree in the Court which passed the decree, the decree-holder is bound to make an application for execution in the Court to which the decree has been transferred, but when application for execution of the decree has already been made in the Court which passed the decree it is not necessary for the decree holder to made a second application in the Court to which the decree has been transferred'.

In the instant case, as said earlier, there was no application for execution of the decree made in the Court which passed the decree. It only made an application for transfer and hence, an application for execution was necessary to be filed by the decree-holder in the transferee Court for execution. That having been not done within the period of limitation prescribed under the old Act, which was applicable and the right to execute the decree having become time-barred prior to the coming into force of the new Act, the Darkhast was clearly time - barred.

16. In Kesho Ram v. Mt. Suraj Balli : AIR1949All751 , it is observed:-

'Where on an application for transfer of decree to another Court for execution, the Court passes, an order transferring the decree to another Court with a direction for the issue of the necessary certificate of transfer, the order amounts to a final order so far as that Court is concerned and therefore, a subsequent execution application filed beyond three years from such order will be barred by time'.

At page 752, the learned Judge has referred to several decisions and observed:

'............' In each one of these three cases, a learned Judge of the Court concerned has interpreted the expression 'final order' as used in sub-clause (5) of Art. 182. Limitation Act in the sense contended for by the learned counsel for the opposite party. It has been held in each one of these cases that so far as the original Court is concerned the proceedings in it terminated when once it passed an order transferring the decree to another Court and directed the issue of the necessary certificate. At that stage the final order, so far as it concerned the application for transferring the decree to another Court, is passed, learned counsel has also invited my attention to the decision of a Full Bench of this Court in the case of Mohamad Taqi Khan v. Raja Ram : AIR1936All820 the Full Bench has indicated the meaning of the expression 'final order' in clause (5) of Art. 182. It has been made clear that the expression 'final order' does not necessarily mean the order which finally adjudicates upon the rights of the decree-holder on the one hand and the rights of the judgment - debtor on the other. At page 1149 the learned Judges have made this important observation:- 'We think that where the Court intends to dispose of the matter completely and no longer keep it pending on its file, and does not merely suspend the execution or consign the record to the record room for the time being, the order must be deemed to be a final order, which will give a fresh stare for purpose of limitation....................' '.

17. In Mahidhar Roy v. Raja Kalyani Prasad Singh, AIR 1945 Pat 71, a Division Bench of the Patna High Court has observed:-

'Where an application is mad e to transfer a decree with certificate of non-satisfaction, the order of transmission is purely a ministerial Act.

The transmission of the decree with a certificate of non-satisfaction was ordered to be made on 18th June. 1936 and the case was put up for further orders on 6th July. 1936. The certificate of non-satisfaction was prepared on 25th June, 1936 and a copy of the order transferring the decree and the certificate of non-satisfaction were all ordered to be sent out under the hand of the Judge on 25th June. 1936 on 6th July, 1936 the case was ordered to be disposed of with a remark that the certificate of non-satisfaction was granted and was sent to the transferee Court. The papers were received by the transferee Court on 4th July, 1936: It was held that the final order on the application to take step in aid for execution in this case was passed on 25th June. 1936'.

18. In Kandula Narasimha Rao v. Veerini Surayya, AIR 1957 Andh Pra 544, a Division Bench of the Andhra Pradesh High Court, consisting of Subba Rao, C. J. and Satyanarayana Raju. J., has observed:

'An application to transfer a decree to another Court for execution is not an application for execution within the meaning of Section 48. Such an application, though made within 12 years from the though made within 12 years from the date of the decree, will not entitle the decree-holder to execute the decree if the application for execution to the Court to which the decree is transferred, is made after the expiration of twelve years'.

'The order of transfer is a judicial order and it takes effect from the date on which it is passed'.

The trial Court has, therefore, in my opinion, rightly come to the conclusion that the final order on the transfer application was passed on 5.3.1960 when order of transfer was passed and also certificate of no-satisfaction was issued. Merely because the transferee Court asked for translations of those papers, and those papers were sent, after translations, on a subsequent date, that subsequent date cannot be said to be the date of the final order on the transfer application.

19. Taking therefore, any view of the matter, there is no escape from the conclusion that the finding arrived at by the executing Court that the decree is time-barred is quite correct. Submissions No. 1 and 2 made by Mr. Bhatt, therefore, fail.

20. There is no substance in submission No. 3. It is devoid of any merits. It is not on account of any delay caused by the order of the Court in requiring translated copies and time taken in translation that the decree holder has suffered. Those things were done before the limitation period had run out. It is the inaction on the part of the decree-holder till 27.11.1967, when it filed an application for execution that has resulted in this consequence that is right to execute has been barred.

21. There is no substance also in submission No. 4. There is no doubt, that the provisions of Limitation Act should be construed in favour of the judgment creditor provided the provisions of the Limitation Act should be construed in favour of the judgment creditor provided the provisions of the Limitation Act could be reasonable so construed. There is no question of justice, equity and good conscience involved. If application for execution is barred by time, the Court is bound to dismiss it in view of the clear provisions of the Limitation Act. The result is that the appeal fails.

22. The appeal is dismissed with costs.

23. Appeal dismissed.


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