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Harakchand and anr. Vs. Khetdan and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtRajasthan High Court
Decided On
Case NumberExecution Second Appeal No. 38 of 1954
Judge
Reported inAIR1959Raj107
ActsLimitation Act, 1908 - Sections 20 - Schedule - Article 182; Code of Civil Procedure (CPC) , 1908 - Order 21, Rules 2, 4, 11 to 14 and 17; Marwar Limitation Act, 1927 - Schedule - Article 182
AppellantHarakchand and anr.
RespondentKhetdan and anr.
Appellant Advocate Shrikishenmal, Adv.
Respondent Advocate Hastimal, Adv.
DispositionAppeal dismissed
Cases Referred and Maheshwar Charan v. Dineshwari Charan
Excerpt:
- - lehri was the proper representative of lad-mal to have been brought on the record, and in coming to that conclusion he placed his reliance on section 3 of the hindu women's rights to property act of 1937. on the question of abatement of the appeal before him owing to want of jeevraj having been brought on the record as ladmal's legal representative, the learned judge was of the view that harakchand son of hukmichand was already on the record, and, therefore, the failure to bring jeevraj also on the record as the legal representative of ladmal could not result in the abatement of the appeal. loobchand, 1956 raj lw 486, it was held that the failure to state the mode of execution in lie execution application made the application 'not in accordance with law' even if it was registered.....i.n. modi, j.1. this is an appeal by the decree-holders harakchand and another against the judgment and decree of the district judge balotra dated the 12th august, 1954 by which he reversed the judgment and decree of the civil judge balotra and held that the decree-holders' application for execution was barred by time. 2. it is necessary to state the following facts in order to appreciate the contentions which have been raised by the decree-holders in this appeal. the decree-holders obtained a decree for rs. 4000/-and costs against sameldan on the 13th september, 1932. sameldan died during the course of the execution proceedings, and, therefore, his son khetdan the present respondent was substituted on the record in place of sameldan. the decree-holders filed an execution application on.....
Judgment:

I.N. Modi, J.

1. This is an appeal by the decree-holders Harakchand and another against the judgment and decree of the District Judge Balotra dated the 12th August, 1954 by which he reversed the judgment and decree of the Civil Judge Balotra and held that the decree-holders' application for execution was barred by time.

2. It is necessary to state the following facts in order to appreciate the contentions which have been raised by the decree-holders in this appeal. The decree-holders obtained a decree for Rs. 4000/-and costs against Sameldan on the 13th September, 1932. Sameldan died during the course of the execution proceedings, and, therefore, his son Khetdan the present respondent was substituted on the record in place of Sameldan. The decree-holders filed an execution application on the 5th November, 1941, and this was dismissed in partial satisfaction on the 8th April, 1942. Thereafter they filed another application for execution on the 5th April, 1948.

This was dismissed for default on the 24th September, 1948. A further application was thereafter filed on the 15th September, 1949, and it is this application out of which the present appeal arises. The judgment-debtor objected to the last-mentioned execution application mainly on two grounds. The first was that the execution application of 1949 was barred by time inasmuch as the execution application dated the 5th April 1948 was not in accordance with law and was therefore ineffectual to save limitation, and limitation started from the final order dated the 8th April, 1942, by which the execution application of the 5th November, 1941 was dismissed in partial satisfaction of the decree.

Tiles second contention was that the judgment-debtor had paid Rs. 3533/-/S up to date. When the judgment-debtor gave particulars of the payments made by him, he admitted having paid a sum of Rs. 734/-, and it is not disputed that this payment was verified by the decree-holders before the execution court on the 8th February 1947. It may also be mentioned at this place that the decree-holder Harakehand certified on his own admission two further payments of Rs. 331/- and Rs. 250/- to the execution court on the 16th April, 1943, and the 9th February, 1945 respectively. These payments are not disputed either.

The judgment-debtor also relied on some more payments but with these we are not concerned for the purposes of the present appeal. It may further be mentioned that Hukmichand one of the decree-holders died on the 2nd January, 1952, when the case was pending before the execution court. The case of the decree-holders is that on his death, they had applied to have substituted the name of another son of his, namely, Jeevraj in his place, Huk-michand's eldest son Harakehand being already on the record.

It is contended that the judgment debtor had not impleaded Jeevraj in the appeal before the District Judge, and consequently that appeal was not properly constituted and deserved to be dismissed. It was further contended that Ladmal, one of the decree-holders being the brother of Hukmichand had died during the course of the appeal in the court below and the judgment-debtor applied to substitute Mst. Lehri, his widow, as his legal representative and this prayer was accepted.

It is contended that the decree-holders were members of a joint Hindu family and Mst. Lehri was substituted in place of Ladmal under a mistaken impression by the learned District Judge that the Hindu Women's Rights to Property Act 1937 applied to Rajasthan, and under this head the further contention is that Hukmichand's second son Jeevraj should have been brought on the record as Ladmal's legal representative, and that having not been done, the entire appeal abated for want of one of the legal representatives of Ladmal having been brought on the record.

The executing court over-ruled the objections of the judgment-debtor and held that the execution application of 1949 was within time, On appeal the learned District Judge reversed that decision and came to the conclusion that the execution application of 1948 was not an application in accordance with law and, therefore, the present application having been filed in 1949 was filed more than six years of the final order dated the 8th April, 1942, passed on the next preceding application of November, 1941.

The District Judge also held that Jeevraj, another son of Hukmichand was not a necessary party to the appeal filed before him inasmuch as the decree-holder's application for the substitution of the legal representatives of Hukmichand decree-holder on his death did not really contain Jeevraj's name, and the same appeared, according to the learned District Judge, to have been interpolated therein later. The learned District Judge further held that Mst. Lehri was the proper representative of Lad-mal to have been brought on the record, and in coming to that conclusion he placed his reliance on Section 3 of the Hindu Women's Rights to Property Act of 1937. On the question of abatement of the appeal before him owing to want of Jeevraj having been brought on the record as Ladmal's legal representative, the learned Judge was of the view that Harakchand son of Hukmichand was already on the record, and, therefore, the failure to bring Jeevraj also on the record as the legal representative of Ladmal could not result in the abatement of the appeal.

3. In this appeal the same points have been strenuously mooted before me for the decree-holders and a further ground has been raised that the payments of 1943, 1945 and 1947 having been certified before the executing court were in themselves sufficient to extend the period of limitation, so as to bring the present execution application within time by virtue of the provisions of Section 20 of the limitation Act.

4. I now propose to decide the contentions raised by learned counsel for the decree-holders one by one.

5. The first question I propose to consider is whether the execution application presented to the executing court on the 5th April 1948 was an application in accordance with law; because, if it was, it would be entirely unnecessary to go into the various other points raised in this appeal. This application was made by the decree-holder Harakchand apparently on behalf of the decree-holders. The application was presented OH the standard form.

The names of the parties to the decree and the particulars of the suit resulting in the decree together with the date of the decree were mentioned in the respective columns. The payments made up to the date of the application, that is, the 5th April, 1948, were also mentioned in the relevant column. It was further mentioned that the last execution application was presented on the 5th November, 1941, and was dismissed in partial satisfaction on the 8th April 1942.

This was all right SQ far as it went. Then comes the most peculiar feature of this application. In column No. 10 relating to the mode of execution, the decree-holder mentioned that no notice for the time being be issued to the judgment-debtor, the reason being that the judgment-debtor had already taken away the income of his agricultural land for that year. The decree-bolder further mentioned that he was presenting the application merely to extend the limitation, and, therefore, it may be registered.

It appears that this application was not registered. The learned District Judge gave notice to the decree-holder to appear before him more than once but the decree-holder did not appear, and, therefore, on the 24th September 1948, the application was consigned to the record. The contention of learned counsel is that this application was in accordance with law, and that even if it was not as the executing court did not reject it under Order 21, Rule 17 C. P. C. it must be taken to be 'in accordance with law'.

It was further contended that an application was subsequently sent by the decree-holder by post on the 20th September, 1948, praying that notices be issued and that the original application read with the subsequent application, in any case, remedied the defect to which the original execution application might have been open. I have given my very careful and anxious consideration to these contentions and have arrived at the conclusion that they are without force.

6. The relevant Article of the Limitation Act which requires consideration in this connection is Article 182 of the Marwar Limitation Act It is the same as the corresponding article in the Indian Act except that the period prescribed for the making of an application or a successive application is six years instead of three years provided in the Indian Act. The question to consider, therefore, is whether the execution application of 1948 in this case was 'in accordance with law', or not.

In Kalu Ram v. Mt. Gyarsi, ILR (1951) Raj-31, it was held that where an application for execution was presented against a dead judgment-debtor, and it was dismissed without any amendment having been made, the application was 'not in accordance with law1. In Buch Raj v. Gumna ILR (1952) 2 Raj 711 it was held that an application for execution docs not cease to be 'in accordance with law' because a list of property intended to be attached was not filed with it In Roopchand v. Loobchand, 1956 Raj LW 486, it was held that the failure to state the mode of execution in lie execution application made the application 'not in accordance with law' even if it was registered and notices were issued to the judgment-debtor.

The correct principle to be deduced from the above-mentioned cases of our own court and cases of other High Courts, to which I propose to refer presently is this. The expression 'made in accordance with law' as used in Article 182 means, in accordance with the law relating to the execution of the decrees whether found in the Code of Civil Procedure or otherwise. Tims an application made to a Court having no jurisdiction has no value In the eye of law and is merely a waste paper. Similarly, an application for relief not granted by a decree cannot be considered an application 'in accordance with law'.

Some of the important provisions bearing on this point as contained in the Code of Civil Procedure are to be found in rules 11 to 14 of Order 21, Rule 11(2) lays down the particulars which every application for execution of a decree must contain, and among these particulars, attention is particularly required to be drawn to Clause (j) of the rule which requires that the mode in which the assistance of the court is required should be stated. In other words, the decree-holder must state which of the five modes mentioned in that clause he wishes to invoke for purposes of execution.

Rule 12 lays down that where an application is made for the attachment of any movable property belonging to the judgment-debtor But not to his possession, the decree-holder must submit a list of the property to be attached containing a reasonably accurate description of the same. Rule 13 provides that where an application is made for the attachment of any immovable property belonging to a judgment-debtor, the decree-holder must give a description of such property sufficient to identify the same, and a specification of the judgment-debtor's share therein so far ai he has been able to ascertain it.

We are not concerned with rule 14 for our present purposes. Then follows rule 17 which lays down that on receiving an application for execution of a decree, the Court snail ascertain whether the requirements of the afore-mentioned rules have been fulfilled, and, if not, the court may either reject the application or may allow the defect to be remedied immediately or within such time as may be fixed by it for that purpose. Sub-rule (2) of this rule is important. It lays down that where an application is amended under the provisions of Sub-rule (1). it shall be deemed to nave been an application in accordance with law and presented on the date when it was first presented.

Now, the true rule which can be deduced from the decided cases, in the first place, is that what the law insists on is substantial compliance with rules 11 to 14, and that it is not every little defect in the application which would invalidate it. Thus where an application has not been verified by oversight, it has been held that the court should not reject the application but allow it to be amended. Similarly where the application does not give particulars of the property to be sold, amendment may be allowed. Again, the omission to give the number of the suit or the date of the decree are minor defects and may be remedied.

The question to decide therefore is whether the application presented by the decree-holder Harakchand in the present case in 1948 failed in some minor defect or a major one. Before I answer this question, let me state in the second place that the test to be applied in such cases generally has been accepted to be--could the court have proceeded with the application notwithstanding the defect. If it could, the application can be considered to be 'in accordance with law'. If the court could not, then the application cannot be held to be 'in accordance with law'.

Now, the application in the present case was, if I may say so, a unique one. The decree-holder not only failed to mention the mode of execution as required by Clause (j) of Sub-rule (2) of Rule 11, Order 21, C. P. C., but what he said was that no notice need be issued (though he qualified it by saying 'for the time being') as the judgment-debtor had already taken away the income of that year. Such an application is, to my mind not contemplated by law at all and cannot be held to be an application 'in accordance with law'. The conclusion to which I have come is amply supported by the cases which I now propose to mention.

7. In Karamchand Gokaldas v. Ghelabhai Chakaldas, ILR 19 Bom 34, the plaintiffs applied for execution of a decree, and they prayed that the defendants be ordered to act as directed by the decree, and if they failed to do so, steps be taken according to law. It was held that the application was not 'in accordance with law' as it did not specify the mode in which the assistance of the court was sought.

8. Similarly in Ranga Rao v. Subba Rao, AIR 1949 Mad 218, it was held that an application for recognizing an assignment and for transmission of a decree to another court was not an execution application in accordance with law inasmuch as it did not mention the mode in which the decree was sought to be executed.

9. Similarly, it was held in Bahadur Singh Dugar v. Basiruddin Ahmed, AIR 1925 Cal 1133 that the mode in which the decree-holder wants the assistance of the court to execute the decree is an essential matter in an application for execution, and where the application does not indicate this, it is not an application 'in accordance with Jaw'.

10. I have, therefore, no hesitation in holding that the execution application of 1948 as preferred by the decree-holders was not an applica-tion 'in accordance with law.'

11. It was next contended that, even so, this may be treated as an application for a step-in-aid of the execution. Now it may be accepted that an application for execution ever, though it is not in accordance with law may still be regarded as an application for a step-in aid. That, however, must depend upon the facts and circumstances of each particular case and no hard and fast rule can be laid down. But in order that the decree-holder may yet a fresh starting point of limitation by virtue of such a step the decree-holder must ask for some step in furtherance of execution and that step should be one to be taken by the Court with reference to the decree sought to be executed. See Sheo Prasad v. Indar Bahadur Singh, ILR 30 All 179. Judged by this test, I am unable to hold that the application of 1948 was such a step-in-aid. The decree-holder was obviously not taking any step-in-aid of the execution when he filed the application in question in 1948. On the other hand, what he expressly stated therein was that no step whatever need be taken by the court, not even the sending out of a notice to the judgment-debtor. In these circumstances I am definitely of the opinion that the application of 1948 was neither an application for execution 'in accordance with law' nor a step-in-aid of such execution.

12. As for the subsequent application of the decree-holders dated the 20th September, 1948, praying that notices be issued to the judgment-debtor, I consider it enough to say that that was not an application of which the execution court could take any notice, the simple reason being that It was an application sent by post. Such an application was a mere waste-paper and cannot avail the decree-holders.

13. It was next strenuously contended before me that in any case it was the duty of the executing court under Order 21, Rule 17, C. P. C. to have scrutinised the decree-holders' application when it was presented, and that if that court on such scrutiny found the application to be defective it should have been either rejected or the Court should have allowed it to be amended, and that this duty having not been performed by the executing court, the decree-holders application in question should be treated as an application 'in accordance with law'.

My attention was also drawn in this connection to the circumstance that if the provisions of the aforesaid rule had been properly observed or carried out, the decree-holders would have either presented a new application in accordance with law' or the application already filed should have been properly amended, and limitation in the case of amendment would, on the express language of the rule, have run from the date of the first presentation of the application.

This argument is all right so far as it goes. Indeed it should have been better if the executing court had rejected this application under Order 21, Rule 17 but it did not do so. It cannot be forgotten, however, that the decree-holder having presented the application never cared to appear before the executing court in spite of notice to do so, and he was, therefore, himself, guilty of serious negligence.

It is possible that if he had appeared before the Court, the Court might have apprised him of the defective nature of the application, and in that case it should have been possible for him to amend the original application. Therefore, the decree-holder Harakchand cannot be absolved of his own share of the blame in this regard. Apart from that, if it is assumed that the executing court failed to perform the duty which was by law cast on it, would that by itself be a ground to debar the judgment-debtor from attacking the application when he comes to know of it in due course?

As already stated above, the decree-holder him-self had stated that no notice be issued to the judgment-debtor, and, therefore, neither the application wa.s registered nor any notice was ordered to issue, and the decree holder was called upon to put in his appearance which he did not. The failure of the court to reject the application in such circumstances, in my opinion, clearly cannot have the effect of making an application 'in accordance with law' which in fact it was not, so as to prejudice the rights of the judgment-debtor for no fault of his. 1, therefore, over-rule this contention also.

14. The next question to consider is whether the certified payments of Rs. 331/-. 250/- and 734/- made respectively on 6lh April, 1943, 9th February, 1945 and the 8th February. 1917, save the limitation for the decree-holders. The payments are not in dispute. These can, however, save limitation it they constitute a step-in-aid of execution under Clause (5) of Article 182 or Section 20 of the Limitation Act. Now there was at one lime a serious conflict of judicial opinion as to whether certification by a decree-holder to the executing court of a payment made to him out of court under Order 21. Rule 2(1), C. P. C. was an application to that court 'within the meaning of Article 181 of the Limitation Act, but this conflict was set at rest by the decision of their Lordships of the Privy Council in Shri Prokash v. Allahabad Bank, AIR 1929 PC 19.

The decision of their Lordships on an elaborate review of the case law and the relevant provisions of the Civil Procedure Code was that the act of certification by the decree-holder of a payment to him out of court by the judgment-debtor is not an application within the meaning of Article 181 of the Limitation Act. and that even if an application was made for the purpose, that was of no avail and could not convert what was merely no more than a certificate of certain payments into an application within the meaning of the last-mentioned Article.

It was further argued before their Lordships that where a decree-holder had proceeded to certify a payment which had been made out of court in satisfaction of a decree, that was a step-in-aid of tho execution of the decree within the meaning of Clause (5) of Article 182. But their Lordships did not feel called upon to express any opinion on that point. This question, has, however, been considered by a number of courts subsequent to the decision in Shri Prokash Singh's case, AIR 1929 PC 19, and it has been held that the mere certification by a decree-holder of a payment to him by tie judgment-debtor is no application to take a step-in-aid of execution within the meaning of Clause (5) of Article 182.

The matter came up for consideration before a Full Bench of the Calcutta High Court in Amar Krishna v. Jagat Bandhu. AIR 1931 Cal 719. Ghose J. who delivered the leading judgment held that when a decree-holder certifies a payment made out of Court, he thereby cannot be held to have taken a step-in-aid of the execution. The ratio of this decision was briefly this: Clause (5) of Article 182. contemplates on application by the decree-holder to take some step-in-aid of the execution but certification of the decree-holder is not an application, and, therefore, the question of a final order on such an application cannot arise.

As to the question whether certification in itself is a step-in-aid of the execution, this was also negatived because it is open to a decree holder to certify the payment at any time, and. therefore, if could not be laid down as a matter of law that the decree-holder's certification is in itself a step-in-aid of the execution so as to afford a fresh starting point of limitation.

The same view has been upheld in a Full Bench of the Oudh Chief Court in Ram Bharose v. Ramman Lal, AIR 1932 Oudh 148 (FB). Reference may also be made to Adya Prasad v. Lal Gir-jish Bahadur, AIR 1933 All 364; Atmaram v. Mal-lappa, AIR 1942 Bom 17 and Ganjhoo Deo v. Hari Sahu, AIR 1943 Pat 7. It is, therefore, too late in the day to contend that the payments relied on by the decree-holders in the present case as having been made in 1943, 1945 and 1947 were steps-in-aid of the execution inasmuch as they were certified payments. I hold accordingly,

15. The next question for consideration is whether these payments save limitation within the meaning of Section 20 of the Limitation Act. The argument of learned counsel was that where payments are certified, they are per se sufficient to save limitation within the meaning of Section 20 of the Limitation Act. Reliance was placed on Qadam Singh v. Nathu Singh, AIR 1919 All 211; Haider Mirza v. Kailash Narain, AIR 1918 Oudh 460 and Narayana v. Kunhi Raman, AIR 1925 Mad 131 in support of this contention.

Now, it is sufficient to say so far as the first two cases are concerned that they do not refer to Section 20 nor do they discuss the requirements of that section and, therefore, these cases cannot be taken to be any authority for the contention put forward by the appellants. As for the third case, all it says is that a payment may save limitation under Section 20 of the Limitation Act if its conditions are fulfilled. To that proposition no exception need indeed be taken.

Apart from this, it was held in this case that a petition for certifying a payment by the decree-holder was a step-in-aid, a view which cannot be held to be correct after the decision of the Privy Council in Shri Prokash Singh's case, AIR 1929 PC 19 referred to above. This case therefore also does not assist the decree-holders in any way. As I look at the plain language of Section 20, one ol the essential conditions which must be satisfied before a payment is treated as satisfying the requirements of that section clearly is that the acknowledgment of the payment must have either been made in the handwriting of the debtor or in a writing signed by him or of his duly authorised agent.

Granted, therefore, that these payments were made by the debtor in the present case, there is nothing to show on this record that the acknowledgment of payment was made by the judgment-debtor in his own handwriting or in a writing signed by him, within the prescribed period of limitation. This view is amply supported by Baldeo Sahai v. Jafar Husain, AIR 1927 All 159; Maung Tun Illaing v. U Aung Gyaw, AIR 1930 Rang 64 and Maheshwar Charan v. Dineshwari Charan, AIR 1936 Pat 386.

I have, therefore, no hesitation in holding that mere certified payments cannot extend the limitation in the present case under Section 20 of the Limitation Act, the simple reason being that an essential requirement of that section as to the acknowledgment of payment appearing, in the handwriting of the person making the payment or in a writing signed by him within the usual period of limitation has not been fuliilled.

16. I next turn to the determination of the question that the appeal before the lower appellate court was not properly constituted as Jeevraj, one of the sons of Hukmichand, who on the latter's death, had been brought on the record, was not impleaded as a respondent therein. I have been taken through the application filed on behalf of the decree-holders in this connection on the 25th March, 1952.

That application stated that Hukmichand had died and so his' name be struck off from the record, and it was further mentioned that Hukmichand's legal representatives were Harakchand and Jeevraj who were already on the record. The word Jeevraj is clearly written in different ink in this application, and no fault can be found with the learned District Judge if he came to the conclusion that Jeevraj's name was in all probability interpolated later therein.

I am further fortified in this conclusion by the circumstance that the application mentioned that Harakchand and Jeevraj were already on the record but this was not a fact because it was only Harakchand who was on the record and not Jeevraj. In this view of the matter, Jeevraj never became a party in the executing court, and it follows 'that there is no substance in the contention that the appeal before the District Judge was incompetent because Jeevraj had not been impleaded as a respondent in that appeal. I, therefore, have no hesitation in over-ruling this contention also.

17. The last point to consider is whether the appeal in the District Judge's court abated on the death of Ladmal during its pendency in the court below; because, according to the decree-holders appellants, a wrong legal representative of his, being Mst. Lehri, his widow, had been brought on the record and Jeevraj, another son of Hukmichand, had not been brought on the record as his legal representative.

Now so far as the learned District Judge's conclusion is based on the provisions of the Hindu Women's Rights to Property Act, 1937, it must be held to be incorrect, for that Act has not been applied to Rajasthan as yet. The contention of the decree-holders appellants throughout has been that Hukmichand and Ladmal and Harakchand son of Hukmichand were members of a joint Hindu family. It is therefore contended that Mst. Lehri, widow of Ladmal on the latter's death did not succeed to Ladmal's estate and was merely entitled to maintenance and residence.

Be that as it may as Hukmichand had already died before Ladmal, Ladmal was survived by his two nephews Harakchand and Jeevraj, Harakchand admittedly being the elder brother of the two. Harakchand was already on the record and was the managing member of the joint Hindu family consisting of himself and Jeevraj.

I am, therefore, disposed to hold the view that j Harakchand being the manager and being already on the record, though in a different capacity, substantially represented the interests of the joint Hindu family consisting of Harakchand and Jeevraj, and that the failure to further being Jeevraj on the record did not really matter and did not have the effect of resulting in the abatement of the appeal in the lower appellate court in the circumstances of this case.

18. For the reasons mentioned above, this appeal fails and is hereby dismissed. Under the circumstances I would make no order as to costs in this Court.


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