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Mangilal Vs. Raghubar Dayal - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtRajasthan High Court
Decided On
Case NumberCivil Miscellaneous Appeal No. 28 of 1949
Judge
Reported inAIR1952Raj66
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48; Limitation Act, 1908 - Schedule - Article 182 and 182(5)
AppellantMangilal
RespondentRaghubar Dayal
Appellant Advocate Umrao Lal, Adv.
Respondent Advocate Maksuddan Lal, Adv.
DispositionAppeal partly allowed
Excerpt:
- - again in november 1918, the decree-holders, on the footing of the decree being a money decree, applied for and obtained an order that certain personal property of another purchaser of the patni might be attached and sold and from such sale proceeds their claim be satisfied. i fail to see how this ruling could help the decree-holder on the point of limitation. i do not agree to this view as well......and the last instalment was payable on the 4th december 1928. after the decree both the original decree-holder and judgment-debtor died. raghubar dayal, a grandson of the original decree-holder, applied in execution on the 21st september 1928 for the recovery of the fourth instalment which had become due and was not paid. the execution was filed against mangilal, son of chetram, original judgment-debtor deceased. it was prayed that the amount be recovered by rateable distribution from the sale-proceeds of half the share in a house, a nohara and two shops, which had been attached in the case, 'nanagram v. mangilal', of the court of the nazim mada-war. another application was made for the recovery of the 5th instalment on the 3rd january 1929, and in that application also a prayer for.....
Judgment:

Sharma, J.

1. This is the judgment-debtor's appeal against the appellate judgment and order of the learned Additional District Judge, Alwar, and arises out of execution proceedings. The facts are as follows: A decree was obtained by Data Rani against Chetram for the recovery of Rs. 2,130/6/6 on the 13th December 1923 from the Civil Court at Alwar, Rs. 130/6/6 were paid at the time of the decree and five annual instalments of Rs. 400/- were fixed. We are concerned, with the last two of them, i.e., the 4th and the 5th. The fourth instalment was payable on Magsir Section 2, St. 1984, corresponding to 26th November 1927, and the fifth and the last instalment was payable on the 4th December 1928. After the decree both the original decree-holder and judgment-debtor died. Raghubar Dayal, a grandson of the original decree-holder, applied in execution on the 21st September 1928 for the recovery of the fourth instalment which had become due and was not paid. The execution was filed against Mangilal, son of Chetram, original judgment-debtor deceased. It was prayed that the amount be recovered by rateable distribution from the sale-proceeds of half the share in a house, a Nohara and two shops, which had been attached in the case, 'NANAGRAM v. MANGILAL', of the Court of the Nazim Mada-war. Another application was made for the recovery of the 5th instalment on the 3rd January 1929, and in that application also a prayer for rateable distribution out of the sale proceeds of Nanagram's case was made. For certain reasons,which are not necessary to mention, the amount of neither of these instalments could be recovered upto the 28th October 1940, and consequently on the said date Raghubar Dayal (who would hereinafter be referred to as decree-holder) made an application that the following property be attached in execution of the decree and the judgment-debtor be also arrested. It was also mentioned that he did not desire the share in the sale proceeds of Nanagram's execution.

2. Mangilal (who will hereinafter be referred to as judgment-debtor) objected that no proceedings could be taken upon the application as it was made more than 12 years from the date the fourth instalment became payable and also more than 3 years from the date of the final order on the application for execution of the 4th and the 5th instalments.

3. It may be mentioned that when the application dated the 28th October 1940 was made, the office made a report that the fourth instalment had become time-barred and issued process only in respect of the fifth instalment.

4. The learned Additional Munsiff, Alwar, in whose Court the execution was pending on the date of the application dated the 28th October 1940, repelled the objections of the judgment-debtor and held the application in continuation of the previous application for execution. He consequently dismissed the objections and ordered the execution to proceed.

5. The judgment-debtor went in appeal to the Court of the District Judge, Alwar, but it was held that no appeal lay. He went in second appeal to the High Court at Alwar where the appeal was sllowed and the case was sent back to the Court of the District Judge for decision in accordance with law. This time the appeal came before the Additional District Judge, Alwar, who upheld the judgment and order of the learned Munsiff and dismissed the appeal.

6. The judgment-debtor has come in Second Appeal to this Court.

7. It has been argued on behalf of the judgment-debtor that the application dated the 28th October 1940 could not be said to be in continuation of the previous application. In this application a fresh relief was sought and it was more than 12 years after the date, on which the fourth instalment became payable. He further argued that the application was beyond time even n respect of the fifth instalment as it was made more than 3 years after the date of the final order. I was referred to the rulings reported in 'RAM RATAN v DATAR KUAR', AIR (15) 1928 Lah 806; 'GAJANAND SHAH v. DAYANAKD THAKUR', ATR (30) 1943 Pat 127; AZIZ REHMAN v. BIPIN BIHARI', AIR (25) 1938 Cal 162, 'MAHARAJ BAHADUR v. A H. FORBES', AIR (16) 1929 P C 209 and 'RAM RAN BIJAYA PRASAD SINGH V. KESI'O PRASAD', AIR (28) 1941 Pat 633.

8. In 'AIR (16) 1929 P C 209', referred to above, a decree for arrears of rent was obtained in 1896 against one Chhatarpal Singh. In May 1908, the decree-holder applied for execution against Patni-dar and got the property attached and sold. The sale was ultimately set aside in February 1909. In January 1915 the decree-holder again applied for execution, requesting to convert the rent decree into money decree. The execution was alleged to be barred by limitation. In March 1917 the decree-holders, on the rooming of the decree being merely a money decree, applied for attachment of other properly belonging to the judgment-debtor. Again in November 1918, the decree-holders, on the footing of the decree being a money decree, applied for and obtained an order that certain personal property of another purchaser of the Patni might be attached and sold and from such sale proceeds their claim be satisfied. The last application to attach the Patni was made on the 2nd December 1922. It was held that the applications of January 1915, March 1917 and November 1918 were essentially different in character from the application of May 1908. The combined effect of these previous applications marked such a substantial departure from the original application of May 1908 as to make it impossible to hold that the application of December 1922 was a continuation of the application of May 1903.

9. In 'AIR (15) 1928 Lah 808', cited above, the decree was passed on the 13th June 1904. The last application for execution was presented on the 16th April 1913, when the decree-holder applied for execution by attachment & sale of a garden and certain agricultural land, but on the judgment-debtor's representation that he was a member of an agricultural tribe, it was held that these properties could not be sold. The decree-holder then tried to have temporary alienation of the land effected, but the executing Court refused the prayer. It was, however held by the High Court that Civil Courts had power to order a temporary alienation of the land of the judgment-debtor. In accordance with that decision, steps were taken to effect a temporary alienation. In October 1918 the Collector sanctioned a temporary alienation of this land. On the 18th November 1925, the decree-holder presented an application in the executing Court stating that the land of the judgment-debtor, which he had attached, had not been sold for no fault of his, that the land which he was likely to get by the temporary alienation of the land, would not be sufficient to meet his demand, and that the other property of the judgment-debtor be attached and sold and the sale proceeds applied towards the satisfaction of the decree, it was held that the second application was in substance a fresh application to proceed against the properties which had not been included in the former application and was barred by time, having been filed after 12 years from the decree.

10. In 'AIR (30) 1943 Pat 127', the decree-holder wanted to substitute a new property which was quite different from the property, against which he wished to proceed in the first instance. It was held that his application must be regarded as a fresh application for execution and that the decree-holder could not be allowed after the period of limitation to execute his decree against the property not mentioned in the execution application originally presented by allowing him to substitute it in the execution petition.

11. In 'AIR (25) 1938 Cal 162, the first application for execution prayed for the arrest of the judgment-debtor and sale of the holding, if necessary. Subsequently when the decree had been barred by limitation, another application for attachment of moveables was filed. It was held that the application for attachment of moveables marked a substantial departure from the previous petition and not a continuation of the execution initiated by the previous petition and so could not be allowed after limitation.

12. In 'AIR (28) 1941 Pat 635, it was held that an application by which it is sought to proceed against properties other than those mentioned in the first execution petition is a fresh application within the meaning of Section 48 and no such application is entertainable after 12 years from the date of the decree sought to be executed.

13. It would thus be clear that according to these rulings if the relief in a subsequent application made more than 12 years after the decree money became payable, is substantially different from the relief in the previous application, the subsequent application cannot be treated as a continuation of the previous application. The learned Additional District Judge, has given no reasons why he differed from the view taken in these rulings. He has simply derived support from the ruling reported in 'MT. DEORAJI KKUER v JADU-NANDAN RAI', AIR (18) 1931 All 92. I have read the ruling and I do not know how it helps the decree-holder on the question of limitation. In that ruling it was simply held that when an application for rateable distribution is made after the attachment has already taken place, the attachment really enures for the benefit of all claimants and is as effective as if it had been brought about separately by each of them, provided they had, before the assets were realised, applied for execution of their decrees. In such a case it is quite sufficient for them to ask that the sale should take place and the sale-proceeds distributed among them proportionately. If the case were before me that the applications dated the 21st September 1928 and 3rd January 1929 were not against law simply because no prayer for the attachment of any property was made, this ruling would have had a bearing on the point, but it was not decided in that case that an application made more than 12 years after the decree became executable could be treated to be a continuation of the previous application, in which relief claimed was quite different from the subsequent application. I fail to see how this ruling could help the decree-holder on the point of limitation.

14. The learned Additional District Judge has treated the application dated the 28th October 1940 as a continuation of the previous applications, because in his opinion they had not been finally disposed of by that time. This would, however, make no difference. In the Lahore case mentioned above also, the second application for a different relief was made during the pendency of the previous application, but as it was made 12 years after the decree had become executable, it was held that it was time-barred and no action could be taken upon it.

15. It was conceded by the learned counsel for the decree-holder that so far as relief for arrest is concerned, it is a relief substantially different in character from the relief in the previous applications. No process for arrest could, therefore, be issued. But so far as the attachment is concerned, it was argued that proceedings could be taken and they could not be time-barred. I do not agree to this contention of the learned Counsel. The previous applications were for rateable distribution and the application dated the 28th. October 1940 was for attachment of certain move-able and immovable property, and also for the arrest of the judgment-debtor. The relief prayed for in the application dated the 28th October 1940 was, therefore, substantially different from the relief claimed in the applications of 1928 and 1929. Whether the application dated the 28th October 1940 is treated as a fresh application for execution or as an application for amendment, proceedings could not be taken in accordance with it. So far as the fourth instalment was concerned, as the recovery of the said instalment had become time-barred by virtue of Section 48 of the Code of Civil procedure. It is significant that the executing Court itself did not proceed in respect of the fourth instalment in accordance with the application dated the 28th October 1940.

16. Coming to the fifth instalment, it has been admitted by the learned Counsel for the Judgment debtor that it was not barred by 12 years rule of limitation under section 48 of the Code of Civil Procedure. It was, however, argued that the previous application of the 3rd January 1929 had been finally disposed of more than 3 years before the application dated the 28th October 1940 was made. I do not agree with this argument of the learned Counsel. Final orders on the said application had not been made even upto the 28th October 1940. Nothing had been received by the decree-holder by rateable distribution till that date. It was argued that the application of 1929 should be deemed to. have been iinally disposed of as soon as an order was made sending that application to the Court executing Nanagram's decree. This does not appeal to me. In the case of rateable distribution final orders could be made only after the assets were distributed between different decree-holders or when the application of the decree-holder, in which properties were attached, was dismissed. Neither of these two things occurred in the present case. I would, therefore, hold that the application dated the 28th October 1940 was not barred under Art. 182 (5) of the Limitation Act, and that an action could be taken upon it so far as the fifth and the last instalment is concerned.

17. It was further argued that the previous applications were not made to the proper Court and in accordance with law, as the decree was of the Civil Judge's Court, Alwar, and the present applications were filed in the Court of the Munsiff, Madawar, and finally came to the Court of the Additional Munsiff, Alwar. I do not think this argument has any force. The Civil Judge's Court (Adalat Diwani) which had passed the decree, had been abolished when the present decree was put into execution, and the Courts, in which the decree was executed, had jurisdiction to entertain the suit, if it were filed, on the dates when the execution applications were made. The decree executed in them was, therefore, executed in accordance with law.

18. It was next argued that the decree ought to have been executed in the Court of the District Judge as the property in Nanagram's case was attached by the District Judge and out of the sale proceeds of this property rateable distribution was prayed. This too has no force. There was no bar to the decree being executed in the Court which had jurisdiction, to entertain the suits at the time of the execution, simply because rateable distribution of assets held by a different Court was claimed.

19. The third argument of the learned Counsel was that the applications of 1928 and 1929 were not in accordance with law as only rateable distribution was claimed and no prayer for attachment of property was made. On this account, however, it cannot be said that the applications were not in accordance with law. I am supported in this view by the ruling reported in 'MT. DEORAJI KUNWAR V. JADUNANDAN RAI', AIR (18) 1931 All 92.

20. The last contention was that the application dated the 28th October 1940, was not in a tabular form and was, therefore, not in accordance with law. I do not agree to this view as well. The application was only an application giving a supplementary list of the properties to be attached and was, therefore, in effect an application for amendment. It was made within 12 years and before the previous application was disposed of. I, therefore, hold that the application was not against law and an action can be taken upon it, so far as the last instalment is concerned.

21. The appeal is partly allowed. The order of the lower Court is modified in that the decree shall be executed in accordance with the application dated the 28th October 1940 only in res-pect of the fifth and the last instalment. It shall not be executed in accordance with that application so far as the fourth instalment is concerned. In the circumstances of the case the parties shall bear their own costs throughout.


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