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Shyama Pada Choudhury Vs. Saha Choudhury and Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 135 of 1973
Judge
Reported inAIR1976Cal122,80CWN29
ActsCalcutta High Court (Original Side) Rules - Rules 10, 22 and 23; ;Limitation Act, 1963 - Schedule - Article 136
AppellantShyama Pada Choudhury
RespondentSaha Choudhury and Co. and ors.
Appellant AdvocateP.K. Dutt and ;A.K. Basu, Advs.
Respondent AdvocateP.K. Roy and ;P. Mullick, Advs.
DispositionAppeal dismissed
Cases ReferredSow v. Santosh Kumar Naik). The Division Bench
Excerpt:
- .....a certified copy of the decree, inasmuch as, under rule 10 of chapter xvii of the original side rules an application for execution must be accompanied by a certified copy of the decree. r.m. datta, j. held that the limitation act of 1963 contained no provision which empowers the court to exclude the time required for obtaining a certified copy of the decree, in computing the period of limitation for execution of a decree. this case is no authority on the point which we are concerned with in the present case, and we need not therefore detain ourselves over this decision. 8. as has already been stated after the passing of the decree by the appeal court it is that decree alone which can be executed. in state of u. p. v. mohammad nooh, air 1958 sc 86 it was pointed out by the supreme.....
Judgment:

Janah, J.

1. This appeal is by the judgment-debtor defendant No. 6 and is against the judgment and order dated 6th March, 1973 passed by A.K. Sarkar, J. allowing an application for execution of the decree for costs awarded in favour of the defendants Nos. 1, 2 and 3.

2. The facts giving rise to the execution application are briefly as follows: In 1951 one Ramanath Das and others instituted a suit being suit No. 3367 of 1951 in this Court against the defendants. That suit was dismissed with costs on the 1st May, 1959 and it was decreed that the plaintiff and the defendants Sailesh Choudhry, since deceased, and Shyamapada Choudhury the present appellant do pay to the defendants Nos. 1, 2 and 3 then costs of the suit including the reserve costs and costs of commission to be taxed by the Taxing Officer of this Court. Against the said decree the plaintiff alone preferred an appeal. The appeal was dismissed only with this modification that the decree awarding costs against the plaintiff was set aside and the rest of the decree was affirmed on June 7, 1962. It is admitted by both parties that there was no stay of operation of the decree passed by the trial court nor was there any injunction restraining the defendantsNos. 1, 2 and 3 from executing the decree for costs. On August 14, 1963, the decree for costs was taxed in the sum of Rs. 18,538.56 P. and allocature was issued by the Taxing Officer. On 2nd May, 1972 a tabular statement supported by an affidavit of Sri P.K. Roy Choudhury was fifed for execution of the said decree for costs on behalf of the decree-holders. In the said tabular statement the decree holder prayed, inter alia, for attachment and sale of premises No. 1, Raja Naba Kissen Street, Calcutta, belonging to the defendant Shyamapada Choudhury. This application for execution was opposed on behalf of the defendant No. 6 the judgment-debtor who is the appellant in this appeal. The trial court overruled the objections urged on behalf of the judgment-debtor and allowed the application for execution. The defendant No. 6 has come up on appeal against the said judgment and order of the trial court.

3. Mr. P.K. Dutt learned Counsel appearing on behalf of the appellant has, in the first place, urged that the present application for execution is not maintainable as it is not in compliance with Rule 10 of Chapter XVII of the Original Side Rules of this Court. He has contended that Rule 10 of Chapter XVII is mandatory and non-compliance with any of the clauses is fatal to the maintainability of the application for execution. According to him, Clause (c) of Rule 10 not having been complied with the execution application is not maintainable. Rule 10 and Clause (c) thereof of Chapter XVII are in the following terms :--

'10. The application for execution, whether the provisions of Order XXI, Rule 22 of the Code, apply or not, shall be in Form No. 1, and shall be on a sheet of durable paper of good quality foolscap size, and shall, in addition to the particulars mentioned in Order XXI, Rule 11 (2) of the Code, contain the following:--

(c) A statement of the estimated value of the property sought to be attached, or, if such property is incumbered, the value thereof after providing for the satisfaction of the incumbrances. In all cases, the application shall be accompanied by a duly certified copy of the decree.'

In support of this contention Mr. Dutt has drawn our attention to the decision in Satyendra Nath Bose v. Bibhuti Bhusan Bhar, : AIR1963Cal104 . In that case an application for execution was made to this Court on the Original Side by a person claiming to participate in the assets under Section 73, Civil P. C. but his application was not accompanied by a certified copy of the decree as required by Rule 10 of Chapter XVII of the Original Side Rules. Further in that case, there was, in fact, no decree in existence onthe date of the application, the decree having actually been drawn subsequent to the filing of the application. In these circumstances it was held that the application was not merely defective in form but the want of certified copy was a substantial defect which could not be remedied. In our opinion, the contention which has been advanced by Mr. Dutt in such a broad form that any irregularity or omission in the tabular statement will render the execution application not maintainable in' law cannot be accepted. Whether the application for execution is in accordance with law or not and whether any omission is material or not depends upon the particular circumstance of each case. (See Soudamini v. Jessore & Co., AIR 1926 Oil 1146). This objection does not appear to have been taken on behalf of the defendant No. 6 before the trial court. Had this objection been taken the decree-holder could have amended the tabular statement with the leave of the Court and that would have cured the irregularity, if any, in the tabular statement. In our view this is a mere irregularity and not an illegality which will render the application for execution invalid in law.

4. The next argument of Counsel for the appellant has been that under Rule 21 of Chap. XXXVI of the Original Side Rules of this Court the bill of costs has to be lodged with the Taxing Officer within 3 months from the date of signing of the decree awarding costs. But according to Mr. Dutt, the applicants for execution of decree for costs made an inordinate delay in lodging their bill of costs and hence they are not entitled to get the benefit of the delay which, according to Mr. Dutt, has been caused in not having the costs taxed. In other words the contention of Mr. Dutt is that the decree which was passed by the trial court on the 1st May, 1959 became barred by limitation on the expiry of 12 years from that date under the Limitation Act of 1963 which came into force from 1st January, 1964, and the mere fact that the costs were taxed on August 14, 1963 would not give an extended period of limitation for execution of the decree for costs. Mr. Dutt has contended that if it is held that a party is entitled to have the costs taxed by the Taxing Officer as and when he likes very serious consequences would follow. He has argued that by postponing the lodging of the bill of costs for an indefinite period a party might defeat the relevant provisions of the Limitation Act. We are unable to accept this argument advanced by Counsel for the appellant. Learned Counsel has submitted that in the present case the defendants respondents Nos, 1, 2 and 3 are guilty of gross negligence in lodging their bill of costs and they should not be allowed to take advantage of their own laches and escape the consequences of limitation. We are unable to accept this contention advanced on behalf of the appellant. In our view Rules 22, 23 and Rule 10 of Chap. XXXVI of the Original Side Rulesprovide for sufficient safeguard against such eventuality. Rule 21 provides that within three months from the date of signing of the decree or order awarding costs the party claiming the same shall leave in the Taxing Office an office copy of such decree or order and at the same time lodge the bill. The Taxing Officer has power to extend the time to lodge the bill which is to be applied for by requisition in writing. If extension is granted the reason for the extension is to be certified by the Taxing Officer. Rule 10 provides that where in proceedings before the Taxing Officer, any party is guilty of neglect or delay or puts any other party to any unnecessary or improper expense relating to such proceeding, the Taxing Officer may direct such party or his Attorney to pay such costs as he may think proper or may set them off against any costs which may be payable to such party. Provision has therefore been made in this Rule to ensure that not only must the bill of costs be lodged within time or the extended time but also a party must not be guilty of neglect or delay in conducting the proceeding before the Taxing Officer. Rule 22 provides that where an Attorney fails to lodge his bill within time or the extended time or in any way delays or impedes taxation, the Taxing Officer may disallow the fees to which the Attorney would otherwise be entitled. The Taxing Officer, in such a case, may also exercise all or any of the powers vested in him under Rule 10 or Rule 23. Then Rule 23 lays down that where any party entitled to costs refuses or neglects to lodge his bill for taxation or to procure the same to be taxed and thereby prejudices any other party, the Taxing Officer shall be at liberty to certify the costs of the other parties, and certify such refusal or neglect, or may allow such party refusing or neglecting a nominal or other sum for such costs, so as to prevent any other party being prejudiced by such refusal or neglect.

5. In the present case none of the penalties prescribed by Rules 10, 22 or 23 has been imposed on the defendants Nos. 1, 2 and 3 or their Attorney. From these facts we arc entitled to infer that the bill of costs was lodged within the time prescribed by the Rules or the delay, if any, in lodging the same had been satisfactorily explained. In an un-reported judgment delivered by Sankar Prosad Mittra, J. as his Lordship the Chief Justice then was, in Suit No. 792 of 1928 on 10-9-1965 (Cal) his Lordship has dealt with the aforesaid provisions of the Chapter XXXVI of the Original Side Rules and has taken the view that in a case where none of the penalty prescribed in Rules 22 and 23 has been imposed on the applicant or his Attorney and where there has been no objection to any item in taxing the Court is entitled to infer that the delay of applicant, if any, for lodging his bill for taxation has been explained to the Taxing Officer, and thereafter it is no longer open to the other side to raise any objection on the ground of delay in having the costs taxed by the Taxing Officer. We respectfully agree with the view taken by his Lordship in that case. Moreover, in the present case the costs which were taxed were not what was awarded by the decree dated 1st May, 1959 passed by the trial court but it was the costs awarded to the defendants Nos. 1, 2 and 3 under the decree as affirmed by the Court of appeal on 7th June, 1962.

6. Counsel for the appellant has advanced elaborate arguments before us on the provisions of the Limitation Act of 1963 (Act XXXVI of 1963) and submitted that under Article 136 of the said Act which provides for limitation for execution of decrees the present application for execution is barred by limitation. Under Article 136 the period of limitation for execution of any decree or order of any Civil Court is 12 years from the date when the decree or order became enforceable. Mr. Dutt submitted that in the present case as there was no stay of operation of the decree of the trial court or any injunction restraining any execution of the said decree the defendants Nos. 1, 2 & 3 were competent to execute the decree of the trial court which was passed on 1st May, 1959 because according to Mr. Dutt, the decree became enforceable on the date on which it was passed. The present application for execution having been filed on the 2nd May, 1972 was barred by limitation. It is no doubt true that the decree for costs passed by the trial court, in the present case could have been executed) by the defendants Nos. 1, 2 & 3 upon taxation of costs but the position would be quite different after passing of the decree by the Appellate Court. Although the Appellate Court affirmed the decree of the trial court only with this modification that the decree for costs awarded by the trial court against the plaintiff was set aside it is the decree of the Appellate Court which alone can be executed and that decree cannot be said to have become enforceable at any time prior to 7th June, 1962 i. e. the date on which it was passed.

7. So the question here is which is the decree which is sought to be executed in the present execution proceeding and whether after the passing of the decree by the Appeal Court could the decree of the trial court be executed. In the tabular statement filed by the defendant decree-holders the decree of the Appeal Court dated 7th June, 1962 has been specifically mentioned along with the decree of the trial court dated 1st May, 1959 and the order dated 17th June, 1958. Therefore what is sought to be executed is the decree of the Appeal Court dated 7th June, 1962 in which the decree of the trial court dated 1st May. 1959 and the order for costs dated 17th June, 1958 have merged. Counsel for the appellant tried to argue on the authority of the decision in Berliner Industriebank Aktiengesellschaft v. Jost, (1970) 3 WLR 743that the starting point of limitation in the present case was the date of the trial court's decree. That was a case where a debt due to the plaintiff was sought to be realised in England after the ascertainment of the debt in bankruptcy proceedings in Germany under the German law. It was held that the ascertainment of a debt in German bankruptcy proceedings was a final and conclusive judgment for a fixed sum on which the plaintiff became entitled in principle to sue on England. That decision proceeded upon wholly different facts and in our opinion it can have no application to the present case. Reliance was also placed on behalf of the appellant on, the decision in the case of Biswapati Dey v. Kensington Stores, : AIR1972Cal172 for the proposition that under Article 136 of the Limitation Act of 1963 the period of limitation is 12 years from the date when the decree becomes enforceable, and under no circumstances this period could be extended beyond 12 years. In that case it was claimed by the decree-holder that he was entitled to get an exclusion of time required for obtaining a certified copy of the decree, inasmuch as, under Rule 10 of Chapter XVII of the Original Side Rules an application for execution must be accompanied by a certified copy of the decree. R.M. Datta, J. held that the Limitation Act of 1963 contained no provision which empowers the court to exclude the time required for obtaining a certified copy of the decree, in computing the period of limitation for execution of a decree. This case is no authority on the point which we are concerned with in the present case, and we need not therefore detain ourselves over this decision.

8. As has already been stated after the passing of the decree by the Appeal Court it is that decree alone which can be executed. In State of U. P. v. Mohammad Nooh, AIR 1958 SC 86 it was pointed out by the Supreme Court that when a decree of the court of first instance is merged in the decree passed on appeal therefrom the date of the appellate decree has to be taken into consideration for purposes of computing the period of limitation for execution of the decree. An identical point as is involved in the present case came up for consideration by a Division Bench of this Court in S. M. A. Nos. 11 to 13 of 1968 (Cal), (Balaram Sahoo alias Sow v. Santosh Kumar Naik). The Division Bench after considering a number of authorities cited before it observed as follows:--

'Let us now try to apply the principles laid down in the above cases to the facts in the instant appeals. Here the original decrees were passed on the 26th July, 1952. Thereafter there were various proceedings right upto 14th September, 1964 when Second Appeals Nos. 364, 347 and 348 of 1962 were dismissed under Order XLI, Rule 11, Civil P. C. By this order of dismissal, the trial court's decrees were confirmed. A dismissal ofan appeal under Order XLI, Rule 11 of the Code has the same effect as a dismissal of an appeal upon hearing (vide ILR (1897) 24 Cal 759). On these facts, the starting point of limitation for application for execution under Article 136 of the Limitation Act, 1963 appears do be not the 26th July, 1952 but the 14th September, 1964 when the Second Appeals were dismissed under Order XLI, Rule II and since the application for execution was made on the 17th February, 1965, the application is not barred by limitation.'

The facts relating to the instant appeal are similar to those in the appeals before the said Division Bench and the observations of the said Division Bench apply here with equal force, and we see no reason to differ from the view taken by the said Division Bench. The appellants' objection to the execution of the decree on the ground of limitation is accordingly overruled.

9. The last point which remains for consideration is the appellant's objection to the effect that he is not the owner of the property mentioned in Column 10 of tried tabular statement which is sought to be sold in execution of the decree. It has been contended that the appellant is the Trustee in respect of the said property in terms of his father's Trust Deed dated 24th July 1953. Counsel for the appellant drew our attention to the said Trust Deed and contended that as no conveyance has been executed by the trustees in favour of the appellant in respect of the said property in terms of the Trust Deed the execution cannot proceed against the Trust property. He has further contended that the learned Judge in the trial Court was wrong in deciding the question of title in the execution proceeding. Mr. P.K. Roy, learned Counsel on behalf of the respondents Nos. 1, 2 and 3 has, on the other hand, contended that reading the Trust Deed as a, whole it would be quite evident that the appellant has, by the provisions contained in the Trust Deed itself, become the absolute owner of the disputed property. He has drawn our attention to Clause (v) of the Trust Deed which provides that after the death of the Settlor who constituted himself as the first and the sole trustee his son Dr. Sailesh Chandra Choudhury will get premises No. 33, Hurro Chandra Mulick Street and his other son Shyamapada Choudhury, the present appellant will get premises No. 1, Raja Naba Kissen Street (which is the property sought to be proceeded against in the execution case) Mr. Roy has stated that the Settlor Debendra Nath Chowdhury has died, and this fact has not been controverted by the appellant. Mr. Roy has, therefore, submitted that premises No. 1, Raja Naba Kissen Street belongs to the appellant in his personal capacity and it is liable to be proceeded against. It is not however necessary for us to decide this controversy in the present appeal. Whether the said property is liable to be sold in execution ofthe decree for costs obtained against the appellant or not should be decided in an appropriate proceeding hereafter, if occasion arises. We therefore express no opinion on that point, which is left open to be agitated by and between the parties in subsequent proceedings, if necessary.

10. The appeal therefore fails and it is accordingly dismissed with costs.

11. All interim orders are vacated.

12. Certified for two Counsel.

Sabyasachi Mukharji, J.

I agree.


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