A.K. Sinha, J.
1. These three appeals are taken up together for the sake of convenience as they arise out of several execution proceedings started by some of the co-sharers for enforcement of the final decree based on an Award given by the Arbitrators effecting partition of joint family properties.
2. The common case of all the parties briefly is that in or about 1945 a suit was filed by one Sunil Krishna Tarafdar one of the co-sharers against other co-sharers for partition of joint family properties including several businesses which was eventually referred to arbitration. On or about 16th April, 1951, the Arbitrators filed their Award effecting partition of all the properties including several businesses amongst five groups of co-sharers. On or about 22nd December, 1952, a final decree was passed in terms of the Award but it was actually drawn up, signed and sealed after about lapse of 16 years i.e. on or about 31-5-68. The material portion of relevant Award for the purpose of present cases thus confirmed by the final decree provided, inter alia, as follows:
I. The plaintiff Sunil Krishna Tarafdar would pay owelty money in respect of his allotment of a portion of the premises No. 2, Andul Raj Road, and half share of the business under the name of Bimal Brothers, amounting to Rs. 8,300/- to defendants 4 and 5.
II. Defendant No. 1 Shib Krishna Tarafdar, for the allotment of a portion of the same premises at 2 Andul Raj Road, and the remaining half share of the same business Bimal Brothers, would pay as owelty money to the defendants 4 and 5 a sum of Rs. 5,746/.
III. The defendants 4 and 5 Nemai and Durga Tarafdar were given the businesses known as 'Tarafdar Bros.' and 'Biswas Bros.' valued at Rs. 15,000/- and owelty money of Rs. 8,300/- and Rs. 5,746/- to be paid by the plaintiff and the defendant No. 1 respectively.
3. Now, it appears from F. M. A. 331 of 1970 that in point of time the first application was made by the plaintiff Sunil Krishna Tarafdar on 24th July, 1968, praying for delivery of possession of the portion of premises No. 2, Andul Raj Road, marked Lot 'C' in the Award for effective demarcation of walls etc., and also for possession of this property and half share of business known as Bimal Bros., against all the defendants including defendants 4 and 5. This execution was opposed by defendants 4 and 5 by petition of objection under Section 47 of the Civil Procedure Code filed on 19th December, 1968. Their case substantially was that the plaintiff decree-holder was not entitled to get delivery of the part of the premises in their occupation without payment of owelty money of Rs. 8,300/-under the terms of the Award and further without closing the opening of the doors in the western wall of the corridors of the ground floor and the first floor with brickwork facing the lot marked 'B* in terms of the Award. The Executing Court below rejected the entire case of the defendants 4 and 5 and dismissed the petition on the view that the execution for delivery of possession of lot 'C' was maintainable. That is how in short the defendants 4 and 5 felt aggrieved and preferred the above appeal.
4. In Appeal No. 122 of 1970, it appears, that Nemai and Durga, defendants 4 and 5, in their turn made application for execution on 9th August, 1968, for realisation of the owelty money of Rs. 8,300/-, together with 6% interest alleged to be provided in the Award amounting in all to Rs. 17,347.87 from Debabrata Tarafdar, the son and only heir and legal representative of the deceased plaintiff Sunil Krishna Tarafdar by attachment and sale of 1/3rd share of premises No. 2, Andul Raj Road, allotted to Sunil Krishna Tarafdar marked at lot 'C' in the Award. Debabrata, in his turn, filed a petition of objection under Section 47 of the Code against such execution substantially on the ground that they were not liable to pay the amount as the business known as Bimal Bros., half share of which was allotted to his father ceased to exist since 1951 and thus the final decree on the basis of the Award to that extent became infructuous. They also denied their liability to pay costs and interests and also their liability to pay on a further ground that the defendants 4 and 5 sold out their right, title and interest to other co-sharers. The Executing Court, however, took the view that the question that a part of the property forming subject-matter of allotment has ceased to exist could not be gone into in an execution proceeding and the other points raised had equally no substance and thus dismissed their objection. Debabrata has now preferred the above appeal in this Court.
5. In the next Appeal No. 568 of 1972, the defendants 4 and 5 started an execution proceeding for realisation of the amount of owelty money of Rs. 5,746/- together with interest at the rate of 6% alleged to be provided in the Award amounting in all to Rs. 12,057.87 from the heirs of Shib Krishna Tarafdar, defendant No. 1, since deceased. They also raised substantially same objections as taken by Debabrata Tarafdar resisting the execution for realisation of the owelty money with an additional plea that the execution was barred by limitation. The learned Court below overruled all these objections and dismissed the petition on the view that defendants 4 and 5 were entitled to realise the amount of owelty money together with interests. The heirs of defendant No. 1 have therefore similarly preferred the above appeal in this Court.
6. The first question that arises for consideration as between plaintiff's heirs and the defendants 4 and 5 (in Appeal No. 331 of 1970) is whether execution for delivery of possession could be resisted of lot 'C', admittedly, a portion of which is in occupation of defendants 4 and 5 on the ground of non-payment of owelty money required to be paid by the plaintiff to the defendants 4 and 5 under the Award. It is undisputed that there is no such provision in the Award. On the other hand, as noticed by the Executing Court below, that the parties were required under the Award to make their allotment in respect of Premises No. 2, Andul Raj Road, within 6 months from the date of the Award. Mr. Mitter on behalf of the appellant, however, has contended in the first place that owelty money creates a charge or lien even though there is no express provision creating such charge or lien in the impugned Award. In support of his contention, Mr. Mitter has relied on a decision of the Supreme Court in : 1SCR775 , T.S. Swaminatha Odayar v. Official Receiver of West Tanjore. In this case, it appears, while considering the incidents, nature and character of 'owelty money' directed to be paid in a partition decree, it has been laid down by the Supreme Court on an exhaustive review of very high authorities that
'such a provision of owelty ordinarily creates a lien or a charge on the land taken under the partition. A lien or a charge may be created in express terms by the provisions of the partition decree itself. There would thus be creation of the legal charge in favour of the member to whom such owelty is awarded. If, however, no such charge is created in express terms, even so the lien may exist because it is implied by the very terms of the partition in the absence of any express provision in that behalf.'
Applying the principles indicated in this above decision to the facts of the present case, it seems quite clear that the owelty money required to be paid by the plaintiff or his successors to the defendants 4 and 5 has undoubtedly created a lien or a charge spread over the entire properties which had fallen to the share of the plaintiff even though, such lien or charge were not expressly declared in the Award. Now, 'lien is a right to hold the property of another as security for the performance of an obligation. A common law lien lasts only so long as possession is retained but while it lasts can be asserted against the whole world. A possessory lien is the right of the creditor to retain possession of his debtor's property until his debt has been satisfied'. (See Osborn's Concise Law Dictionary 5th Ed. P. 194). A lien as distinguished from charge, in fine is a right to possession of the property of a person unless the demand is satisfied.
7. Mr. Bagchi on behalf of the respondents relying on a Full Bench decision of the Kerala High Court in : AIR1962Ker85 , Parvati Amma v. Makki Amma, has sought to contend that it was not correct to say that title did not pass till owelty was paid. It is said that immediately on the decree being passed the title of the properties vested in him exclusively and absolutely, and therefore the defendants were not entitled to resist delivery of possession until the owelty was paid. The question, in our opinion, is not so much of acquisition of tills as lien or charge being created on account of unpaid owelty money over the properties allotted to the other member co-sharer. In the Full Bench decision of the Kerala High Court the question raised was whether 'owelty is a debt within the purview of the Kerala Agricultural debt Relief Act, 1958. In that context, the Full Bench held that 'Owelty is really a part of the proper-tics partitioned i.e., the owelty is a substituted property and it is neither unpaid purchased money nor any liability in the sense in which the debt is understood to be a liability. Owelty of partition therefore did net relate to debts and consequently Kerala Act XXXI of 1958 has no application to them'. Nevertheless, even on the question of acquisition of title Bhagwati, J., has inter alia, observed in T. S. Swaminatha's case : 1SCR775 (supra) as follows:--
'Even if no express charge was created there was in equity a lien or a charge created on the properties falling to the share of the third defendant's branch and he did not acquire the properties which fell to his share on such partition irrespective of or discharged from the obligation to make payment of such sum out of the same. The appellant was, in our opinion, entitled to payment of the sum of Rs. 24,257-0-8 and interest out of the properties which fell to the share of the third defendant's branch on partition and which comes to the possession of the respondent by reason of the insolvency of the defendant No. 3.' Such being the position, it is difficult to see how the plaintiff could maintain his execution for taking delivery of the portion of immovable properties allotted to him without at the same time discharging the obligation of paying the owelty money.
Mr. Bagchi has next contended relying on a decision of Sind Judicial Commissioner's Court Rattanmal v. Budhalshah Khudabux Shah. AIR 1946 Sind 99 that the question whether at all the respondents were entitled to get owelty money in view of the changed circumstances is a matter relating to the execution and satisfaction and therefore it was open to the Executing Court to decide this question. We would come to this point later on at the proper time elsewhere in this judgment but at the present moment we would only say that this decision is altogether on a point not relevant for the purpose of the present case. Then referring to a decision of Andhra Pradesh High Court in : AIR1967AP7 , Raj Lingam v. Sommana, it is urged that since unpaid owelty money creates a charge only on the property the co-sharer is entitled to get such owelty money on sale of the property but cannot retain possession of the property in default of payment of such money. We do not think that these two cases are of any assistance to the respondents, for there, while explaining the nature of the charge created under Section 55(4)(b) of the Transfer of Property Act, it was held that in case of non-payment of the purchase money or part thereof the seller was only entitled to a charge and there could not be any question of its getting possession in default of purchase money. In the instant case, however, the unpaid owelty money is both a 'lien or a charge', and therefore, in enforcing that lien the concerned party has a right to retain possession of the disputed property in default of the payment of purchase money and not merely a right to sell the property in enforcement of the charge. A lien is a kind of right as distinguished from charge, as already noticed, (and) is provided as for instance in the Indian Contract Act in Sections 168, 170, 173 and 221 and also in Section 47 of the Sale of Goods Act and Section 52 of the Indian Partnership Act. It is a right only to retain possession of the property and not a transfer of interest in the property itself in the sense that the property in enforcement of such lien cannot be put up for sale as in case of charge or mortgage. But this right of lien, it is well-established, may be determined by satisfaction of the debt, abandonment of possession of the disputed property or by a contract inconsistent with its existence. In this case, clearly such lien has not been lost to the appellants.
8. This apart, while the respondents are enforcing their right in execution of the decree to take delivery of possession of the disputed property they are resisting the execution started by the appellants for realisation of the owelty money from them on various grounds. It is highly improper and inequitable to allow on the one hand delivery of possession of the property while on the other permit the respondents to resist payment of owelty money to the appellants. So, viewing the matter from this aspect also, we are inclined to hold that the appellants are entitled to resist delivery of possession of so much of the property allotted to the respondents as may be in their possession until the owelty money, as provided in the final decree based on the Award, with so much of interest as determined by us elsewhere in this judgment, is paid to them. In our opinion, the decision given by the Executing Court below on this aspect of the matter is not correct. It is unnecessary in the view we have taken in the matter on the first point to decide the two other points raised and decided by the Executing Court below. But even if we do so, we entirely agree with the view taken by the Executing Court below on the same reasons as assigned by it. Accordingly, we hold that the present execution started by the respondents is not maintainable so long as owelty money is not paid to the appellants.
9. We now come to the two common points in next two cases which have been started by the defendants 4 and 5 (appellants in Appeal No. 122 of 1970 and 568 of 1972) for realisation of the owelty money from the plaintiff's only son and legal heir Debabrata Tarafdar, and the heirs of defendant No. 1 respectively. The first question raised Is that half share of a business was allotted to the appellants in excess of their share and as the owelty money was required to be paid On such excessive share there is no liability now of the appellants to pay such owelty money as the disputed business so allotted Ceased to exist. The Executing Court, below, however, rejected this contention on the view that the Executing Court had no power to go behind the decree. Mr. Ganguly on behalf of the appellants has, in the first case, however, relied on a decision of the Supreme Court in AIR 1955 SC 376, Jugal Kishore V. Raw Cotton Co., and contended that under Section 47 of the Code the Executing Court alone must determine all questions arising between the parties or their representatives relating to the 'execution, discharge or satisfaction of the decree' and it authorises the Court even to treat the proceeding as a suit In this case, while explaining the scope and effect of Order 21, Rule 16, after its amendment as regards transfer or assignment of certain benefits under a decree the Supreme Court held that the Executing Court must deal with the complicated question relating to transfer of decree as it was clearly incumbent under Section 47 of the Code to determine all such questions. While the proposition laid down cannot be disputed, we do not think, this principle has any application to the facts of the present case. Here, in the instant case, it is undisputed, the business in question ceased to exist prior to the passing of the final decree. It is also undisputed that this question was raised before the trial Court and after determining such questions the trial Court passed a final decree on the basis of the Award. Thereafter, no appeal, even if any, was ultimately proceeded. It is therefore, clear that the matter was finally and conclusively determined by the parties and it is no longer open to the parties to raise again the same questions in the execution proceeding for that would be barred by the principle of res judicata, even assuming that the executing Court had power to go into such questions under Section 47 of the Code.
10. Mr. Ganguly has then contended that, in any view, the Court has power to amend a decree and in support of his contention he has relied, on a Bench decision of this Court in Midnapur Zamindary Co. Ltd. v. Abdul Zalil Mia, 37 Cal WN 500 = (AIR 1933 Cal 627). We fail to see how this case is of any assistance to the appellant. In this case, while considering the question of sale under an erroneous decree, it was held that 'the Court has power to amend a decree in order to bring it in conformity with the judgment at any time even after the decree bad been partly executed the only limitation being' that the Court may deem it inexpedient or inequitable to exercise its power when third party's interests were affected': Clearly, no such questions arise in this case. We therefore do not find any substance in the contentions raised by Mr. Ganguly.
11. Mr. Samir Kumar Mukherjee on behalf of the appellant in the next case has placed reliance in support of such argument on two other decisions of this Court namely 19 Cal WN 1021 = (AIR 1915 Cal 586 (1)), Mahabir Prasad Chowdhury v. Chandra Sekhar and : AIR1971Cal504 , Janaki Nath Roy v. Shambhu Nath Mullick. We do not think these decisions have any bearing to the questions involved in the present case, for, the Court there was mainly concerned with the question whether apart from Section 152 of the Civil Procedure Code, the Court has inherent power to amend a decree to bring it in conformity with the judgment or to rectify apparent mistakes. In the instant case, as we have already noticed, the question of non-existence of this property prior to the passing of the final decree was raised and decided. So, it is no longer open to the Court to exercise its inherent jurisdiction to amend the decree in execution proceedings. Question may arise as to what would really be the remedy of a co-sharer who could not derive the entire benefit of allotment of partition owing to non-existence of some properties either before or after the partition. It is not necessary to enter into this question in the present case, but even if we do, we think, as argued by Mr. Shakti Nath Mukherjee on behalf of the respondents, we think rightly, relying on a passage from Tagore Law Lectures by Ramesh Chandra Mitter on 'Partition and Hindu Joint Family' 1897 at p. 399 that the aggrieved co-sharer may have a right in proper case to obtain compensation for obtaining his loss from the rest of the co-sharers, hut he is not entitled to resist the execution because It is a matter concerning the whole estate. This then being the position in law, the objection raised on this point by the appellants cannot be sustained as valid.
12. The other point raised by Mr. Ganguly is that in any event the appellants are not entitled to get any money by way of interest during the period from 1961 to 1968. It is said that no interest is allowable unless the allotment is made independent and the appellants are in possession of the disputed property. Reliance is placed on a decision of this Court in : AIR1963Cal583 , Brahma Swaroop v. Diwan Chand, to show that the Arbitrator had no power to award interest on owelty money. In support of such contention, reliance is placed by Mr. Samir Kumar Mukherjee on a decision of the Supreme Court and several other decisions of this Court and other High Courts namely : 2SCR48 , Thawardas v. Union of India, : AIR1966Cal478 , Lal Chand Roy v. Nirode Kanta and AIR 1962 Andh Pra 500 (FB), Kudapa Subbama v. Chitturi Subauna.
13. Mr. Shakti Nath Mukherjee, however, in repelling such argument in the first place has contended relying on a Full Bench decision of this Court in Saha & Co. v. Ishal Singh, : AIR1956Cal321 , that an Award could be set aside only in the manner and on the grounds as indicated in Sections 32 and 33 of Indian Arbitration Act, 1940, and in no other way, even if the Award was a nullity. In the second place, be has contended that even if there was absence of power of the Arbitrators to award interest in the manner they had done it was no longer open to the appellants to challenge the validity of the Award as it has already merged into a final decree passed by the Court. This is sought to be supported from a decision of the Supreme Court in (1969) 2 SCR 432, Bahadur Singh v. Muni Subrat and also above Full Bench decision and other decision of the Division Bench in : AIR1963Cal583 (supra). It is however, not necessary to enter into these controversies in the present case and determine the question finally. For, it appears that though interest was provided for in the Award for non-payment of owelty money, the decree that was parsed could not be effective because between the period of the passing of the decree and the drawing up of final decree, circumstances intervened which were not within the control of the appellants and clearly they could not be saddled with the liability of payment of interest upon the owelty money. In our opinion, the respondents arc entitled to get interest only on and from the date of the final decree till realisation on the unpaid owelty money in terms of the final decree passed on the Award from the appellants in both the cases. We are constrained to say that the reasons Which we shall presently assign to hold in favour of the respondents in matters relating to question of limitation also dictate us to hold in favour of the appellants in fixing their liability to pay interest not from the time when the decree was finally passed in terms of the Award but from the lime when the decree was actually drawn up.
14. Now, on the question of limitation taken in the Appeal No. 568 of 1972, it is argued that under Order 20, Rule 7 of the Civil Procedure Code, date of judgment is date of the decree and since no certified copy of decree is required for levying the execution, the decree-holder is not entitled to get the period for the purpose of starting execution till final decree is actually drawn up, signed and sealed by the Court. It is said that as the decree-holder failed to execute the decree within 3 years from the date of the decree i.e., date of judgment namely, 22-12-1952, when final decree was passed in terms of the award under Article 182 of the old Limitation Act (1908), the execution was clearly barred by limitation. In support of such argument, Mr. Mukherjee has relied on quite a large number of decisions, one of Supreme Court and others of this Court as well as of other High Courts namely, : 2SCR918 ; Jagat Dhish Bhargava v. Jawahar Lal, (1881) ILR / Cal 547, The owners of the Ship 'Brenhilda' v. The British India Steam Navigation Co., ILR 57 Cal 996 =: (AIR 1930 Cal 804), Mathuranath v. Janakinath, : AIR1963AP1 , Venkata v. Buchanna, AIR 1924 Cal 351, Kishorimohan Pal v. Provash Mondal, AIR 1933 Cal 239, Nalini Kanta Roy v. Kamaraddi, : AIR1960Cal85 , Chandra Nath Ghosh V. Rajani Kanta Ghose, : AIR1965Cal280 , Dino Bandhu Nayak v. D. Mitra, : AIR1963Bom263 , Suratsing Chandanmal v. Gulab Chand, : AIR1962Pat398 , Rajeswar Rai v. Sankar Rai, : AIR1971Pat190 , Gurudayal Singh v. Ram Chandra, : AIR1950Ori125 , Ramachandra v. Bhalu Patnaik. This argument though appears to be attractive at the first blush fails to offer any substance on closer examination.
15. We fail to see how the above Supreme Court decision could be of any assistance to the appellant in this case. Of course, Mr. Mukherjee has laid stress on paragraph 13 of the judgment, evidently to show by a negative approach that if the decree could not be drawn up owing to the default of the party concerned then the time taken for obtaining certified copy cannot be excluded. We are, however, not concerned with this case, for, the question raised there was whether in preferring an appeal time requisite for obtaining a copy should be granted when due to the inaction on the part of the Court and not to the fault of the party, the decree could not be drawn up and in that context the Supreme Court held that essentially drawing up of the decree was the 'function of the Court and its office and it would be unreasonable to penalise a party for the default of the office by suggesting that it was necessary that the party should have moved the Court for drawing up the decree.' As regards the rest of the decisions, it is not necessary for our present purpose to deal with each of them, and while general proposition laid down in these decisions cannot be disputed, each case has to be judged on its own facts to see whether the party is entitled to get the entire rime for the purpose of limitation covered for drawing up of the final decree. For, it would appear from one of the earliest decisions of this Court in AIR 1924 Cal 351 (supra) that even though, date of the judgment is date of the decree for the purpose of execution, the decree-holder would still be entitled to get the requisite time for the purpose of limitation for drawing up of the final decree, if it could be shown that such decree could not be drawn up due to circumstances beyond his control and not due to his own default Applying therefore this test we are unable to accept the contention of Mr. Mukherjee as correct On the other hand, it would appear from the finding of the Executing Court that the decree could not be drawn up due to various reasons and from the trend of such finding evidently Court thought that the responsibility could not be laid upon the respondents.
16. This apart, it appears from various orders passed by the Court below in the original suit for partition between 1953 and 1968 -- plain copy of which was furnished to us with copy to the contesting parties that between the years 1953 and 1968, there were protracted proceedings as when the matters came up several times in appeal and interim stay orders were granted by this Court. After disposal of these matters by this Court the final decree was drawn up as appears from Order No. 665 dated 21-5-1968. There is nothing to indicate from these various orders and proceedings that the respondents were liable for the delay caused in drawing up of the final decree. So, the execution started by the respondents of the decree cannot be held to be barred by limitation, even though, if it is conceded that the date of the decree is the date of the judgment for the purpose of execution.
17. There is yet another aspect of the matter which is that in this case the Court as appears from the record, after execution petition was filed in tabular form under Order 21. Rule 11 of the Civil Procedure Code made a direction requiring the respondents to produce certified copy of the decree under Sub-rule (3) of Rule 11, Order 21 of the Code. If that be so, where the Court required the applicant to produce a certified copy of the decree which fact is not disputed, clearly the decree-holder is entitled to get the benefit of the time taken for drawing up of the decree, for unless such a decree is drawn up the certified copy of the decree could not be furnished. In this case, therefore, the matter so considered from different aspects clearly establishes that the execution started by the respondents cannot be held to be barred by limitation.
18-19. Mr. Shaktinath Mukherjee on behalf of the respondents in repelling the above arguments has sought to contend further under two heads the first being that the new Limitation Act of 1963 would apply and under that Act Article 136 which is the relevant Article for the purpose of execution of decree is couched in altogether different language. In support of his first branch of argument that this old Limitation Act cannot have any application, he has relied on a Bench decision of this Court in : AIR1971Cal213 , Nrisingha v. Ajit Kumar Dutta, and it has been contended that different considerations may arise in case of application of substantive law but as the Limitation Act is a part of the Adjective Law, the present execution case which was started in 1968 would be governed by the new Act. The second branch of his argument is that under Article 136 of the new Act the execution of any decree is to be made within 12 years from the time intimated when the decree or the order would become enforceable. It is said that unless the decree is drawn up there could not be any enforceable decree and 'the date of the decree' as was provided in Article 182 of the old Limitation Act is significantly absent in the present Article. Support is sought to be drawn in aid of this contention from a decision of the Judicial Committee in 48 Ind App 17 = (AIR 1921 PC 31), Maharaja of Darbhanga v. Homeshwar Singh and : AIR1960AP64 , In re: The Public Prosecutor. This may be another arguable point but it is unnecessary to decide this question for on the reasons already given we have held that the execution case cannot be held to be barred by limitation. The result is:
(a) The Appeal No. 331 of 1970 is allowed. We set aside the judgment and order of the Executing Court below and allow the petition under Section 47 to this extent that the appellants shall remain in possession of so much of the immovable property marked lot 'C' as may be in their possession so long as the owelty money along with the interest, as found to be payable by us in terms of this order, remains unpaid or not actually realised in execution whichever period is longer.
(b) The Appeal No. 122 of 1970 is allowed in part and we modify the order of the executing court to this extent that the appellant shall be only liable to pay so much of interest in terms of the Award as may be payable from the date of the drawing up of final decree till payment of the entire owelty money to the respondents. The respondents are given liberty to amend the execution petition accordingly and proceed with the execution case.
(c) The Appeal No. 568 of 1972 is allowed in part. We modify the order of the executing Court below to this extent that the appellant shall be only liable to pay so much of interest in terms of the Award as may be payable from the date of the drawing up of the final decree till payment of the entire owelty money to the respondents, The respondents are given liberty to amend the execution petition accordingly and proceed with the execution case.
20. There will be no order as to costs in any of the appeals against either parties.
N.C. Mukherji, J.
21. I agree.