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Sohan Raj Taparia Vs. Mahendra Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberEx. First Appeal No. 27 of 1965
Judge
Reported inAIR1970Raj204; 1969()WLN400
ActsCode of Civil Procedure (CPC) , 1908 - Sections 1(5), 31(2) and 48A - Order 2, Rule 2 - Order 21, Rule 16
AppellantSohan Raj Taparia
RespondentMahendra Singh
Appellant Advocate Rohan Lal Maheshwari, Adv.
Respondent Advocate L.R. Mehta, Adv.
DispositionAppeal allowed
Cases ReferredValchand v. Manekbai
Excerpt:
.....that in computing the period of limitation for execution of a decree the period during which the decree-holder could not execute the decree on account of the thikana being under the management of the haisiyat court was to be excluded.;(b) civil procedure code - execution of decree--whether each decree holder can take out execution of his share.;if the shares of the decree-holders are apparent on the face of the decree either expressly or by necessary implication, it is not strictly speaking a joint decree, in such a case each decree-holder can take our execution in respect of his own share. - - at this, notice was issued to the judgment-debtor, namely, kurki thikana as well as the decree-holder gulab chand nathmal. he has failed to take into consideration that a decree-holder who.....jagat narayan, j. 1. this is an execution first appeal by one sohan raj taparia, decree-holder. 2. two contentions were raised before the executing court. one was that the decree was barred by limitation and the other was that an assignee of a part of a decree could not put it into execution. the executing court held that the decree was within limitation. but at the same time it was of the view that an assignee of a part of a decree could not execute it. the execution application was accordingly dismissed. 3. on behalf of the assignee-decree-holder sohan bai taparia it is contended that the decision of the executing court on the second point is erroneous and on behalf of the judgment-debtor it was contended that its decision on the question of limitation was erroneous. i shall first.....
Judgment:

Jagat Narayan, J.

1. This is an execution first appeal by one Sohan Raj Taparia, decree-holder.

2. Two contentions were raised before the executing Court. One was that the decree was barred by limitation and the other was that an assignee of a part of a decree could not put it into execution. The executing Court held that the decree was within limitation. But at the same time it was of the view that an assignee of a part of a decree could not execute it. The execution application was accordingly dismissed.

3. On behalf of the assignee-decree-holder Sohan Bai Taparia it is contended that the decision of the executing Court on the second point is erroneous and on behalf of the judgment-debtor it was contended that its decision on the question of limitation was erroneous.

I shall first consider the question of limitation. I am of the opinion that the execution- application is within time. Thedecree was passed in 1885 A.D. by a Court in the erstwhile State of Jodhpur. At that time there was no period of limitation prescribed for execution of decree either under any law of limitation or under any law of civil procedure. Limitation Act and Code of Civil Procedure were first enacted on 1-6-1913. Under these Acts the limitation for executing a decree was 12 years. These Acts were modified, vide Council Resolution dated 1-12-1914 under which the limitation was enhanced to 24 years. Under Council Resolution dated 6-4-1921 it was provided that in special cases the decree could be executed even up to 30 years.

4. The decree was passed against Kurki Thikana which was under the Haisiyat Court from 1909 to 1915. In 1922 the Marwar Jagirdars Encumbered Estates Act, 1922, was passed. By Section 1 (5) of it, the Act was applied retrospectively to all jagirs taken under the Haisiyat Court before the passing of the Act. Under Section 9 (1) (b) of the Act no decree could be executed against a Thikana which had been taken under the management of the Haisiyat Court. Section 31 (2) (c) of the Act laid down that in computing the period of limitation for execution of a decree the period during which the decree-holder could not execute the decree on account of the Thikana being under the management of the Haisiyat Court was to be excluded. The executing Court has discussed in detail the evidence on the basis of which it held that the Thikana was under the Haisiyat Court from 1909 up to the end of 1915. I agree with its finding on the point. The period of 24 years would, therefore, reckon from the end of 1915 so far as execution of this decree is concerned. Before the expiry of this period the Thikana was again taken under the Haisiyat Court under the Marwar Jagirdars Encumbered Estates Act, 1922, on 21-7-1938 and was only released on 21-7-1958. The present execution application was filed on 18-11-1958. Under Section 48A of the Code of Civil Procedure as inserted by the State of Rajasthan, this decree which was passed before 25-1-1950, when the Civil Procedure Code which was applicable provided a period of 24 years for execution of decree, will be deemed to have been passed on 25-1-1950. It could have been put into execution up to 25-1-1962. The Thikana was released from the superintendence of the Haisiyat Court only on 21-7-1958. The period from 21-7-1933 to 21-7-1958 has been rightly excluded under Section 31 (2) (c) of the Marwar Jagirdars Encumbered Estates Act, 1922.

5. It may be mentioned here that the Thikana was under attachment for realising Government revenue from 1915 to 1938. It was taken over by the Haisiyat Court by the order of the Revenue Minister dated 21-7-1938 (at p. 74 of the Paper-book). After the formation of Rajasthan the Jagirdars who were under the Haisiyat Court were placed under the superintendence ofthe Court of Wards Department which was formed under the Rajasthan Court of Wards Act, 1951. Jagir Kurki was released from the Haisiyat Court with effect from 21-7-1958 by a notification of the Revenue Board (Court of Wards), Rajasthan, published in Rajasthan Gazette, dated March 19, 1959 (at p. 78 of the paper-book). Excluding the period from 21-7-1938 to 21-7-1958, the present execution application filed on 18-11-1958 was within 24 years of the date when the Thikana was released from the Haisiyat Court in 1915.

6. I accordingly hold that the present execution application is within limitation.

7. Coming now to the second point as to whether it is open to the present decree-holder Sohan Raj Taparia to execute the decree it may be stated that a decree for Rs. 43,088-11-6 was passed in 1885 A.D. in favour of Seth Gulabchand Nathmal. The original decree-holder assigned Re. 0-4-9 share in the decree to Sohan Raj Taparia and Re. 0-4-9 share to Jai Narayan, Daulat Ram and Kishan Gopal. The remaining share of the decree was also assigned to different persons whose names need not be mentioned'. As has been stated above; the decree was under attachment from 1915 to 1938 till it was again taken over by the Haisiyat Court. During the period of attachment it was under the Hawala Department When the jagir was under the Hawala Department, the decree-holder could make an application for execution to the Court and if any surplus money was available with the Hawala Department it was sent for by the Court from there and paid to the decree-holder. During the period the jagir was under the Hawala Department execution applications were made from time to time to the Chief Court of Jodhpur. The order-sheet of the Chief Court (at p. 4 of the paper-book) goes to show that Sohan Raj, Jai Narayan, Daulat Ram and Kishan Gopal filed an application alleging that Sohan Raj had purchased Re. 0-4-9 of the decree and Tai Narayan, Daulat Ram and Kishan Gopal had also purchased Re. 0-4-9 share in the decree and praying that their names may be entered in the decree. At this, notice was issued to the judgment-debtor, namely, Kurki Thikana as well as the decree-holder Gulab Chand Nathmal. On 8-3-1937, Gulab Chand Nathmal's Mukhtar Simrathmal and Mutha Deepraj, Perokar of Kurki Thikana appeared and stated that they had no objection to the prayer of Sohan Raj Taparia, Jai Narayan, Daulat Ram and Kishan Gopal being granted. The Chief Court thereupon passed an order granting this prayer. The share of Sohan Raj in the decree was thus defined under the order of the Chief Court, Jodhpur. The notice issued by the Haisiyat Court dated 30-10-39, which is at page 5 of the paper-book, goes to show that Sohan Raj's snare in the decree was defined as Rs. 12,825-1-6. At page 6 of the paper-book is the 'rank list' prepared by the Haisiyat Court definingsharer of all the assignees of the decree. In this also the share of Sohan Raj Taparia has been shown as Rs. 12,825-1-6. This 'rank list' was prepared on 6-3-1942. At page 7, of the paper-book is a copy of the ledger account or Sohan Raj mentioned by the Haisiyat Court. It shows that out of the decretal amount of his share a sum of Rs. 1,474-11-0 was realised leaving a balance of Rs. 11,350-6-6. This was the amount for which execution application was filed by Sohan Raj on 18-11-1958 in the Court of the District Judge, Pali'.

8. In holding that the assignee of a share of a decree could not execute it the learned District Judge relied on an observation of Peacock, C.J., in Haro Shankar Sandyal v. Tarak Chandra Buttacharjee to the following effect:--

'Suppose there was a decree for a lakh of rupees, it could not be contended that the decree-holder could assign it to a lakh of assignees, so as to give to each of them power to take out execution for one rupee, his portion of it. Otherwise, there might be a lakh of executions under the decree, a lakh of seizures and a lakh of sales under each one of which there can be no doubt that the judgment-debtor would suffer loss. If this were allowed, the judgment-debtor must necessarily be ruined.'

9. The learned District Judge has not given the citation of the case in which the above observation was made. The illustration given by the learned Chief Justice is an extreme one. He has failed to take into consideration that a decree-holder who wishes to execute a decree is himself subjected to lot of irrecoverable expenditure and harassment. The Bombay High Court has been taking the view that piecemeal execution of a decree is not permissible except when it grants separate and distinct reliefs. This view has not been followed by this Court. In Champalal v. Ghisulal (Ex. Second Appeal No. 31 of 1962, D/- 10-1-1963) the Bombay view was not followed. The decision in Panaji v. Ratanchand, AIR 1933 Bom 364 was referred to in that case. The learned Judge based his decision on the proposition that nothing is permissible which is not expressly permitted by the Code of Civil Procedure. This opinion was not accepted by this Court as it has been laid down in a number of cases that the Code is not exhaustive. It is settled law that Order 2, Rule 2, C.P.C., is not applicable to execution proceedings. It may be that in certain cases there are circumstances from which it can be inferred that a decree-holder executing a decree for a lesser sum can be taken to have waived his right to levy execution for the balance. That is not the case here. Sohan Raj is an assignee o Re. 0-4-9 share of the decree.

10. In Durga Prasad v. Gauri Shankar Ex. Second Appeal No. 27 of 1962, D/-15-10-1965 = (reported in AIR 1966 Raj 258), the same view was again taken. It was observed that although thereis no express provision in the Code of Civil Procedure laying down that separate and successive execution applications can be made but there is no prohibition against it either and that the Court ought not to act on the principle that every procedure is prohibited unless it is expressly provided for, but should proceed on the opposite principle that every procedure is to be understood as permissible till it is shown to be prohibited by law. The Code is not exhaustive of all forms of procedure necessary to be used in the administration of justice.

11. In Motilal Shivnarayan v. Santram Bala, AIR 1954 Bom 273, this very principle was followed and it was held that partial transfer of a decree in favour of an assignee is permissible because Order 21, Rule 16 does not prohibit it expressly.

12. The other reason given by the learned District Judge for holding that Sohan Raj cannot execute his decree for his share was that the decision of the Bombay High Court in Valchand v. Manekbai, AIR 1953 Bom 137, supported the objection raised by the judgment-debtor in this behalf. I have carefully gone through this decision. Far from supporting the objection of the judgment-debtor in Para. 6 it is stated--

'If the shares of the decree-holders are apparent on the face of the decree either expressly or by necessary implication, it is not strictly speaking a joint decree. In such a case as Mr. Justice Shah has pointed out each decree-holder can take out execution in respect of his own share.'

13. I have already pointed out abovethat the share of Sohan Raj was defined by the order of the Chief Court on 8-3-37 after notice to the judgment-debtor who raised no objection. Payments were made by the Haisiyat Court to Sohan Raj on the basis of this definition of his share in the decree by the Haisiyat Court without any object on behalf of the judgment-debtor. The facts of the present case are thus distinguishable from the facts of the case in AIR 1953 Bom 137.

14. I am accordingly of the opinion that Sohan Raj is entitled to execute the decree in respect of the share assigned to him. I therefore allow the appeal, set aside the order of the executing court and direct it to execute the decree in accordance with law. The appellant is entitled to recover the costs of both the Courts from the respondent.


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