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Bhuralal Vs. Jiwansingh and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Ex. Second Appeal No. 12 of 1952
Judge
Reported inAIR1956Raj21
ActsMewar Limitation Act, 1932 - Schedule - Article 29; Code of Civil Procedure (CPC) , 1908 - Sections 48; Limitation Act, 1908 - Schedule - Articles 181 and 182
AppellantBhuralal
RespondentJiwansingh and anr.
Advocates: Chandmal, Adv.
DispositionAppeal allowed
Cases ReferredRameshwar v. Homeshwar
Excerpt:
.....of the date of the decree and that if for some reason or another it was dismissed, then no further execution application could be filed after a period of three years for the execution of an unsatisfied decree. this state of affairs and, if i may say so, i have in mind all execution applications whatever, could only be justified on the assumption that an execution application once filed in mewar was never intended to be dismissed until the decree was fully satisfied. 9 of 1908) was made applicable to mewar with certain modifications which are not material for our present purposes, and as it is well settled that the law of limitation is procedural it was argued that, it is the law which is in force at the time a suit or an application is made which applies to it. when the right to apply..........of this judgment.the question in that case was whether the appellant was entitled to execute his decree dated 27-7-1906,'or whether it was barred by limitation, when he applied for execution thereof in, december, 1914. the subordinate judge held that the execution was not barred by limitation, on the ground that the decree had then become capable of execution for the first time in 1914. the high court reversed this decision.their lordships of the privy council disagreed with the high court and held that as the limitation act prescribed three years as the period for the enforcement of a decree, it was implicit that such an order or decree must be capable of being enforced. they further observed that the decree against e could not have been executed without a further application, which.....
Judgment:

Modi, J.

1. This is an appeal by the judgment-debtor Bhuralal against the judgment and decree of the District Judge, Bhilwara, dated 3-3-1952, arising out of certain execution proceedings.

2. The respondent Jiwansingh and his brother Sohansingh (who is represented in this appeal by his assignee Motisingh) filed a suit against the appellant for redemption of a pledge of certain ornaments and obtained a decree on 28-8-1940, that they would be entitled to redeem the ornaments on payment of Rs. 547/4/- to the defendant. This decree was confirmed on appeal. On 30-1-1943, Sohansingh alone applied for execution of the decree.

Some trouble arose as Jiwansingh had not been made a party to the application for execution and, therefore, on 9-5-1943, Sohansingh stated that he was asking for execution with respect to his share of the decree. In 6-2-1945, the Judgment-debtor objected that he had already compromised the decree with one of the decree-holders Jiwansingh on 20-5-1941. This objection was not decided. On 18-12-1946, Motisingh deposited a sum of Rs. 530/- in court to be paid to the judgment-debtor.

On 21-3-1947, the execution application was, however, dismissed for the decree-holder's default. Then Motisingh filed a second execution petition on 15-10-1947. This application was dismissed on 20-1-1949, on the ground that Motisingh alone had no right to execute the decree: This led to a further execution application- on 4-4-1949, which was filed by both Jiwansingh and Motisingh' and it is this application out of which the present appeal has arisen.

Bhuralal raised two objections: (1) that the decree had already been compromised with Jiwansingh and (2) that the execution application dated 4-4-1949, was barred by time. The executing Court repelled both these objections. The judgment-debtor then went in appeal to the District. Judge, Bhilwara, and the latter modified the decree of the executing Court and held that; Jiwansingh was not entitled to execute the decree but Motisingh as assignee of the other decree-holder Sohansingh was entitled to execute the decree to the extent of his half share on payment of half the decretal amount allowed by the trial Court. This appeal has been filed from the above decree.

3. Learned counsel for the appellant judgment-debtor contended, in the first place, that the application for execution dated 4-4-1949, was bared by time. His plea as to limitation was based on a number of grounds. Firstly, he raised the contention that according to the Me-war Limitation Act, 1932 (Act; No. 2 of Smt. 1988) which was in force in the former State of Mewar, an application for execution could be filed within three years from the date of the decree and thereafter there was no provision for filing a further application at all.

In support of his contention, learned counsel relied on Article 29, Mewar Limitation Act, which is in these terms:

dSls nkos e;kn dc ls e;kn 'kqekj gksxh

^^nk[kkWLr okLrs 3 lky rkjh[k lqukus rtcht

djkus gjdlh ls**

It was contended that there was no Article corresponding exactly to Article 182, Indian Limitation Act, ' and, therefore, the second execution application which was filed by the decree-holder in 1947 was incompetent and the matter should have been allowed to rest there and if no right of further execution subsisted thereafter, the present execution application filed on 4-4-1949, was obviously of no consequence.

I have carefully examined the provisions of the Mewar Limitation Act and find that Article 29 is the only Article which relates to an application for execution and that its wording is very simple and brief as already cited above. A literal interpretation of this Article would undoubtedly lead to the conclusion that an application for the execution of a decree could be filed only within three years of the date of the decree and that if for some reason or another it was dismissed, then no further execution application could be filed after a period of three years for the execution of an unsatisfied decree.

This state of affairs and, if I may say so, I have in mind all execution applications whatever, -- could only be justified on the assumption that an execution application once filed in Mewar was never intended to be dismissed until the decree was fully satisfied. But this was not so, and so far as I understand this Article had received from the Courts of the former State of Mewar a liberal interpretation so that if an execution application which was filed within three years had been dismissed for some reason, a further application within three years from the first application could aways be filed, subject of course, to the maximum period provided under Section 48, Civil P. C.

This point came up for consideration before a Division Bench of this Court in -- 'Ramlal v. Jagannath', Misc. Ex. S. A. No. 21 of 1952, which was not cited at the, bar and is, hot yet reported) (Sinse reported in AIR 1955 NUC (Raj) 4670) (A) and I am glad to find that the view taken there is in complete accord with my own view. In any case, the decision of the Division Bench is binding upon this Court and I have no hesitation in repelling this contention.

4. Learned counsel for the appellant next argued that the application for execution filed on 4-4-1949, was barred by limitation from another angle. His contention was that by the time this application came to be filed, the United State of Rajasthan Limitation Ordinance, 1949 (Ordinance No. 33 of 1948) had come into force in the former State of Mewar on 28-8-1943. By this Ordinance, the Indian Limitation Act (No. 9 of 1908) was made applicable to Mewar with certain modifications which are not material for our present purposes, and as it is well settled that the law of limitation is procedural it was argued that, it is the law which is in force at the time a suit or an application is made which applies to it.

It was, therefore, this law by which the execution application of 1949 falls to be governed. Now in the Indian law of limitation, in addition to Article 182 with all its various clauses, we have also Article 181. The contention of learned counsel is that the former article can have no application to decrees which are conditional, as in the present case, and that the correct Article which applies in such cases is Article 181. Article 181 reads as follows:

Description of suitPeriod of limitationTime from which period begins to run.181. Applications for which no period of limitation is provided elsewhere in this schedule of by section 48 of the Code of Civil Procedure, 1908.Three year's.When the right to apply accrues,I may as well quote here the relevant portion of Art. 182:182. For the execution of a decree or order of any Civil Court not provided for by section 48 of the Code of Civil Procedure, 1908. Three years 1. The date of of the decree.2. Where there has been an appeal, the date of the final decree or order of the appellate Court3..............4..............

The decree of which execution is sought was, to my mind, undoubtedly conditional. It said that the decree-holders would be entitled to redeem the pledged ornaments on payment of the sum of Rs. 547/4/- to the judgment-debtor. Now, it is well established that Article 182 is not exhaustive in the sense that it is not the only Article which applies to execution applications and that Article 181 may also be applicable to such applications. (See 'Rameshwar v. Homeshwar', AIR 1921 PC 31 (B).) It as, of course, true that: Article 181 is a residuary Article and will only apply where the application of Article 182 is excluded.

It appears to' me that the correct approach to the question whether an execution application in a particular case is governed by Article 182 or 181 is first to examine the clauses of Article 182 and to see whether such application falls within the four corners of any of the clauses of that Article. If on such examination, the/Court comes to the conclusion that none of the clauses of Article 182 is properly applicable in a particular case, then I am clearly of opinion that such an application for execution must be governed by Article 181 and the period of limitation applicable forthe filing of such application would be three years only and this period should be counted from the date when the right, to apply first accrues to the decree-holder.

Applying this test to the present case, I am of opinion that Article 182, is inapplicable to it for the decree cannot be said to be capable of immediate execution on the date of the decree unless the decree-holder put in the money which is the condition precedent for the satisfaction of the decree by the judgment-debtor. Putting the matter in another way, I would say that the decree-holder is required in such cases to perform a certain condition before he can ask for execution from the judgment-debtor and' it is, therefore, obvious that the period of limitation in such cases cannot be said to run merely from 'the date of the decree without more.

When Article 182 thus does not apply, the residuary Article 181 must' be held to be applicable and, therefore, the period of limitation is three years from the date when the right to apply accrues. The question then is: when does the right of a decree-holder to apply for execution in a conditional decree accrue? The true rule appears to be that this right cannot be allowed to accrue merely at the sweet will and pleasure of the decree-holder whenever' he may choose to perform the condition land, therefore, the right to apply accrues to the decree-holder as soon as the decree is passed in his favour.

In this view of the matter it would be open to the decree-holder to put in the money in a rase like the present at any time within three years of the date of the decree; but if he does not do so, then, inevitably he forfeits his right to levy execution thereafter. In support of the view, which has commended itself to me, I may cite a few cases although I may state at once that there is a certain amount ,of conflict' of opinion on this point.

5. The first case to which reference may foe made is 'Narain v. Brij Narain', AIR 1931 All 326 (C). In that case a- decree was passed for delivery of possession of certain property upon the decree-holder depositing to the credit of the judgment-debtors a certain sum no date of payment whereof was specified in the decree. It was held that the decree was not immediately executable and the right to . recover possession depended upon the fulfilment of certain contingencies provided for in the decree and so Article 182 was inapplicable and the only Article governing the execution was the residuary Article 181.

It was further held that the right to pay the money under the decree accrued to the decree-holder at once, and the decree-holder was not entitled to prolong the date of payment by his inaction or laches. It was therefore, held that as the legal representatives of the judgment-creditor had made their application more than three years from the date of the decree their application was clearly barred by time under Article 181.

The same view was adopted by the Bombay High Court in -- 'Gopal Sattu v. Dnyanu Maruti', AIR .1938 Bom 367 (D). A contrary view appears to have been taken in -- Mt. Bhuribai v. Rahmatbi', AIR 1930 Nag 241 (E), where it was held that where payment of a certain amount to the judgment-debtor is a condition precedent' to the ,making of the Application for execution, an application made without4 fulfilling that condition is still valid. The learned single Judge relied on 'Nathubhai Kasandas v. Franjivan Lalchand', 34 Bom 189 (P). an earlier case of the Bombay High Court but the recent trend of authority in that Court as appearing from the later decision in -- 'Gopal Sattu's case (D), appears to be on the other side.

The same view was adopted by the Madras High Court in -- 'Nacharammal v. Veerappa', AIR 1945 Mad 485 (G). The terms of Arts 181 and 182 do not appear to me to have been considered in these cases and I find it difficult to understand how a right to enforce the decree arises in cases of this type merely from the date of the decree unless the condition prescribed in the decree is fulfilled by the decree-holder. The last case to which I wish to invite attention is -- 'Rameshwar v. Homeshwar' (B) which went up to the Privy Council and has already been, referred to in the earlier part of this judgment.

The question in that case was whether the appellant was entitled to execute his decree dated 27-7-1906,'or whether it was barred by limitation, when he applied for execution thereof in, December, 1914. The Subordinate Judge held that the execution was not barred by limitation, on the ground that the decree had then become capable of execution for the first time in 1914. The High Court reversed this decision.

Their Lordships of the Privy Council disagreed with the High Court and held that as the Limitation Act prescribed three years as the period for the enforcement of a decree, it was implicit that such an order or decree must be capable of being enforced. They further observed that the decree against E could not have been executed without a further application, which could not have been made till E had coma into possession of the property of J and that by Article 181, the period of limitation for making an application was three years from the time when the right to apply accrued.

In the light of the principle deducible from this case and the other cases discussed above I hold that the correct Article applicable to applications for execution in conditional decrees is Art, 181, Limitation Act and not Art 182, and that as there is nothing in law to preclude the decree-holder from performing the condition 'mid down in the decree on the very day the decree is passed, where no date for the performance of the condition is specified in the decree itself, the decree-holder has the liberty to perform the condition within three years of the date, of the decree at the most but not-beyond it, and he cannot be permitted to extend this period by a belated performance of the condition which it was for him to fulfil.

6. Holding, therefore, that Article 181 is applicable to this case, my conclusion is that the application for execution dated 4-4-1949, is barred by time. The appellate decree was passed by the District Judge, Bhilwara on 23-5-1941. Motisingh deposited the money on 18-12-1946, and the present application for execution was filed on 4-4-1949. Motisingh clearly put in the money after more than five years of the date of the appellate decree which, he was not entitled to do.

The maximum period that could be allowed to him for the payment of the money was, in my opinion, three years from the date of the appellate decree. On the view held by me, Motisingh cannot be allowed to prolong the period 'of ' payment beyond the prescribed limit of three years. The present application which was filed in 1949 was, therefore, barred by time and hold accordingly.

7. In this view of the matter I consider to unnecessary to decide certain other points raised on behalf of the appellant.

8. Consequently, I hereby allow this appeal, set aside the judgment of the DistrictJudge & hold that the respondents' applicationfor execution is barred by time and must be dismissed. In the circumstances of the case partieswill bear their own costs throughout.


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