1. In suit No. 2707 of 1947 (Kanailal Mukherjee v. Subodh Chandra Mitra), there was consent decree made in favour of the respondent, on April 21, 1945, on terms as hereinafter set out:
'1. There will be a decree in favour of the plaintiff for Rs. 13,200/- besides costs carrying interest on the decretal amount at the rate of 12 per cent per annum from the date hereof. Should, however, the defendant pay the decretal amount on the due dates hereinafter mentioned, the rate of interest will be reduced to 9 per cent per annum
2. The decretal amount will be paid in the following monthly instalments.
(a) From April 1948 to September 1948, the defendant will pay Rs 176 per month, the first of such payments shall be made on or before 20th April 1948, and the subsequent payments by the 20th of each succeeding month.
(b) From October 1948 to March 1949, the defendant will pay Rs. 246/- per month, the first of such payments shall be made on or before 20th October 1948 and the subsequent payments by the 20th of each succeeding month.
(c) From April 1949 to March 1950 the defendant will pay Rs. 330/- per month the first of such payments shall be made on or before 20th April 1949 and the subsequent payment by the 20th of each succeeding month.
(d) From April 1950 to June 1951 the defendant shall pay Rs. 440/- per month, the first of such payments shall be made on or before 20th April 1950 and the subsequent payments by the 20th of each succeeding month.
On each occasion of payment of the above instalments of the decretal amount the defendant shall pay interest on the decretal amount due.
3. If default be made by the defendant in paying any three consecutive monthly instalments of payment as hereinbefore stated, the plaintiff will be at liberty to execute the decree for the amount then due under the decree
4. The defendant will not proceed with the appeal being Appeal No. 8 of 1948 (wherein the defendant is the appellant and the plaintiff is the Respondent) and the same will be allowed to be struck off.
5. The defendant will pay the plaintiff his costs of this suit and of the said Appeal No. 8 of 1948 as between party and party such costs to be certified by Mr. P C. Basu, Attorney at law or taxed by the Taxing Officer of this Court as of an undefended suit. Out of the said costs the defendant will pay in advance Rs 300 on or before the signing of these terms and the balance when certified or taxed as aforesaid shall be paid in two equal instalments, first instalment shall be paid by 20-6-1948 and the balance by 10-9-1948. In default of payment of any of the above instalments of costs the plaintiff will be at liberty to execute this decree for the balance of the costs then due
6. Rai Anukul Chandra Mitra Bahadur who is the father of the defendant doth hereby guarantee the due repayment of the decretal amount with interest and costs as aforesaid
7. On receipt of the amount payable under this decree the plaintiff will (if required by the defendant) enter up satisfaction at the costs of the defendant'
On April 11, 1951 there was an adiustment of this decree recorded by Sinha J (as the Chief Justice then was), as hereinbelow set out.
'(1) That after adiusting the amounts alreadv paid under the decree herein a sum of Rs. 12,000/- is due to the plaintiff bv the defendant for principal interest and costs including costs of execution proceeding upto 30th November 1950. The said sum will bear interest at 6 pet cent per annum simple from 1st December, 1954
(2) On signing of these terms the plaintiff will abandon all execution proceedings now pending in the Alipore Court as also proceedings in Insolvencv being Case No. 4 of 1950 against the guarantor Raj Bahadur Anukul Chandra Mitra in the Alipore Court and the said guarantor Rai Anukul Chandra Mitra Bahadur stand hereby discharged and the defendant undertakes to cause the guarantor to withdraw the appeal preferred by him in the High Court of Calcutta in its appellate jurisdiction.
(3) The defendant will pav the sum of Rs. 12,000/- with interest thereon at 6 per cent per annum to the plaintiff by tht following instalments.
(i) Rs. 2,000/- on or before 31st January 1951.
(ii) Rs. 1,000/- on or before 30th April, 1951.
(iii) Rs. 2,000/- on or before 30th April, 1952.
(iv) Rs. 3,000/- on or before 30th April, 1953.
(v) Rs. 4,000/- on or before 30th April, 1954
The amount of interest that will accrue due shall be paid along with the last instalment of principal sum
(4) In default of payment of any two aforesaid consecutive instalments mentioned in Clause (3) hereof the whole of the decretal amount then due with interest and costs as hereinafter stated shall at once become due and payable by the defendant.
(5) The defendant will pay to the plaintiff a sum of Rs. 150/- as settled costs of and incidental to this application for recording these terms of settlement
(6) Upon payment oi the sums in terms of Clauses 3 and 5 thereof the plaintiff will at the costs of the defendant enter up full satisfaction in the above suit'
The appellant judgment-debtor did not pay the first two instalments in terms of Clause (3) of the adjusted decree quoted above. Thereupon, the respondent decree-holder became entitled to execute the decree for the whole of the decretal amount, due after adjustment, on and from May 1, 1951. The decree-holder respondent, however, did not take steps for execution of the decree, until long after May 1, 1951. On April 10, 1962 the appellant judgment-debtor wrote to the respondent decree-holder in the following language:
'Referring to the letter of vour Solicitor Mr. P.C. De of the 27th March 1962 I regret that on account of financial difficulties I could not pay to you any sum payable under the order dated 11th April 1951 made in the above suit. I am paying you today Rs 500/-which you will appropriate in full payment of the sum of Rs. 150/- being the settled costs of and incidental to the application of the said order recording the terms of settlement and the balance sum if Rs 350/- will be appropriated by you toward? part payment of interest of the instalments payable under the said order Please acknowledge receipt of the said sum and also of this letter
After discussion with you it has been agreed to by me and you that I shall pay to you the sum of Rs. 12,000/- mentioned in the said order with interest thereon @ 6 per cent per annum from the date of the said order viz. 11th April 1951 (less the said sum of Rs 350) in the following manner
(1) A sum of Rs. 100/- (one hundred) only shall be paid by me on or before the 5th day of each month commencing from the month of May 1962 until the month of May 1963.
(2) A sum of Rs. 300/- (three hundred) only shall be paid by me on or before the 5th day of each month commencing from the month of June 1963 until your dues are fully paid.
(3) The balance of interest that will accrue due on the principal amount of Rs. 12,000/- shall be paid by me along with the last instalment of the principal amountas aforesaid.
In default of payment of any one of the aforesaid instalments you will be entitled to execute the said order for the balance of your dues.' The appellant judgment-debtor paid Rupees 500/- as promised, on April 10, 1962 and also paid Rupees 1600/- between May 4, 1962 and June 4, 1963 but left a sum of Rs. 10,400/- unpaid.
2. On January 1, 1964, Limitation Act 1963 came into operation and repealed the Limitation Act of 1908.
3. On June 19, 1964, the decree-holder respondent put the decree, as adjusted on April 11, 1951, into execution and filed a tabular statement seeking realisation of Rs. 10,400/- being the balance of the decretal amount Rs. 7956.14p. being interest due thereon upto June 3, 1964 and also further interest on Rs. 10,400/-. He prayed for appointment of a Receiver to receive and realise a moiety of the salary of the defendant, month by month each month when it become due and payable, in realisation of the decretal debt.
4. Upon service of a notice under Order 21 Rule 22 (1) (a) of the Code of Civil Procedure upon him, the judgment-debtor appellant filed an objection, in the form of an affidavit-in-opposition, therein raising the plea that the execution was barred by limitation
5. By an order, dated December 1, 1964. S. P. Mitra J. overruled the objection and appointed the Official Receiver as Receiver in execution, as prayed for. This appeal is directed against the aforesaid order.
6. Mr. I. P. Mukherjee, learned Counsel for the judgment-debtor appellant, started his argument with the proposition that the Limitation Act of 1963 was retrospective in operation and under the provisions of the new Act the application for execution was barred by limitation Before we examine the proposition of Mr. Mukherjee, as a proposition of law, it is necessary for us to find out what was the last date for execution of the decree, in the instance case, under the Limitation Act of 1908 and then to see if the changes brought about by the Limitation Act of 1963 shortened the date. Under the Limitation Act of 1908, Article 183 was couched in the following language:
Description of application. Period of limitation. Time from which period begins to run.
Art. 188. To enforce a judgment, decree or order of any court established by Royal Charter in theexercise of its Ordinary original civil jurisdiction, or an order of the Supreme Court.
Twelve years. When a present right to nforce the Judgment, lecree or order accrues to some person capable ofreleasing the right. Provided that when the judgment, decree or order hasbeen revived, or some part of the principal money secured thereby or someinterest on such money has been paid, or some , (sic) of the right theretohas been given in writing signed by the person liable to pay such principalor interest, or his agent to the person entitled there to or his agent thetwelve year (sic) shall be computed from the date of such revivor payment oracknowledgment or the latest of such revivors payments or acknowledgments asthe case may be.
The effect of acknowledgment in writing was dealt with in Section 19 of the Act of 1908 and the material extract from the section is set out below;
'Section 19 (1) Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from time to time when the acknowledgment was so signed. (2) x x x x xExplanation I. x x x xExplanation II. x x x xExplanation III. For the purpose of this section an application for the execution of adecree or order is an application in respectof a right'
The effect of payment, inter alia, on account of a debt was dealt with in Section 20 of the Act of 1908, the material extract where-from is hereinbelow quoted:
'Section 20. (1) Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy, or by his duly authorised agent, a fresh period of limitation shall be computed from the time when the payment was made.
Provided that, save in the case of a payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.
(2) x x x x x Explanation-- Debt includes money payable under a decree or order of Court.'
There is little dispute that the starting pointof limitation, in the instant case, wouldeither be from April 11, 1951, when theadjustment of the decree was recorded orfrom May 1, 1951, after the second instalment, under the adjusted decree, becamepayable. Calculated from the two datesmentioned above the period of limitationwould have respectively expired on April11, 1963 and May 1, 1963, under Article 183of the old Limitation Act of 1908. Thedecree-holder respondent, however, reliedon the acknowledgment of liability made bythe judgment-debtor appellant, by letterdated April 11, 1962 (hereinbefore quoted),and payments made towards the decretaldebt upto June 4, 1963, for start of a freshperiod of limitation either from April 11,1962 or from June 4, 1963. Thus, under theold Limitation Act of 1908, the tabularstatement, filed on June 19. 1964, was verymuch within time.
7. The new Limitation Act of 1963, which came into force on January 1, 1964, however, made a change in the law. Section 18 of the new Act (which corresponds to Section 19 of the Act of 1908) omits explanation III of Section 19 of the Act of 1908 and in its place substitutes Explanation (c), which does not make an application for execution of a decree or order equivalent to an application in respect of any property or right. The material portion of new Section 18 reads as follows:
'Section 18. (1) Where, before the expiration of the prescribed period for suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability a fresh period of limitation shall be computed from the time when the acknowledgment wag so signed.
(2) x x x x x Explanation-- For the purposes of this section,--
(a) x x x x x (b) x x x x x (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.'
Section 19 of the new Act (which corresponds to Section 20 of the Act of 1908), inter alia, omits the explanation that debt includes money payable under a decree or order of a Court, as in the old Act of 1908, and reads as follows:
'Section 19 Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:
Provided that, save in the case, of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.
Explanation:-- For the purposes of this section,--
(a) x x x x x (b) debt does not include money payable under a decree or order of a Court.'
Article 136 of the new Act which takes the place of Article 183 of the old Act of 1908. is in line with the new Sections 18 and 19 quoted above and read as follows:
Description of application.Period of limitation.Time From whicb period begins to run.
Art. 186. For the execution of any P(sic) (other than a deoree granting a mandatory (sic) tion) or order of any civil Court.
Twelve years.Where the Decree or order be, come enforceable or where the decree or any subsequent order directs anypayment of money or the lelivery of any property to be made at a certain date or at recurring periods when default in making the payment or delivery inrespect of which execution is sought takes place Provided that an application for the unforcement (sic) execution decree grantin(sic) a perpetual (sic)junction shall not he subject to any period of limitation.
8. Now, under Section 19 of the old Limitation Act of 1908, an acknowledgment made after the passing of a decree but before the expiry of the period of limitation for execution of the decree under Article 183, amounted to acknowledgment under Section 19 of the Act and used to give fresh start to the period of Limitation. It is no longer so under Explanation (c) to S. 18 of the new Limitation Act of 1963. Further, a payment towards decretal debt, which used to start off a fresh period of limitation for execution, from the time when the payment was made, under Section 20 of the old Limitation Act of 1908, has no longer that effect under Explanation (b) to Section 19 of the new Limitation Act of 1963. Also. Article 136 of the new Limitation Act of 1983 does not, like the old Article 183, contain provisions for revivor or fresh start of the period of limitation. Thus under the new Act of 1963, the decree-holder respondent it not entitled to utilise the acknowledgment of decreed liability and payment towards the decretal debt made between 4-5-1962 to 4-6-1983, for start of a fresh period of limitation. Hip only escape route lies in establishing that the new Act is not so far retrospective as to be confiscatory in nature even it respect of existing rights
9. In support of the proposition that the new Limitation Act of 1963 is retrospective in operation. Mr Mukherjee relied, in the first place, on two Division Bench Judgments of this Court, namely. Jyoti Mazumder v. Girija Bhusan Roy, : AIR1965Cal11 and Ram Prasad Ram Narain v. Bejoy Kumar Sadhukhan. : AIR1966Cal488 The first mentioned case dealt with an application for leave to appeal as a pauper, which was not time-barred under the Act of 1908, on January 1, 1964, when the Act of 1963 came into operation but became stale on the date of its presentation, on February 14, 1964, under the provisions of the old Act of 1908. On the question whether the old Act or the new Act, (the latter Act providing for a longer period of limitation) would govern the application, it was observed that the intention of the law of limitation was not to give a right where there was not one but to impose a bar, after a certain period, to the enforcement of an existing right. It was further observed, that the law of limitation was a law of procedure and, as such, of retrospective operation. But, it was pointed out, when under an existing law of limitation, right had become time-barred that right would not revive under a subsequent legislation as to limitation, unless there was express provision to that effect. Since the application for leave to appeal as a pauper had not become time-barred at the time when the Limitation Act of 1963 came in force it was observed
'If the application for leave to appeal as paupers had already become time-barred on January 1, 1964, the new Act would not have applied and would not have given them longer time to apply for leave. Since that application was not time-barred when the new Act came into force the petitioners are entitled to have the benefit of the new Limitation Act and may present their application within the time prescribed under Article 130 of the Limitation Act of 1963.'
10. The context in which the observations were made is different from the instant case and that decision is no authority for the proposition that the retrospective operation of the new law of limitation is annihi-latory of an existing right, without more. The other decision in Ram Prasad Ram Naram's ease, : AIR1966Cal488 , (supra) dealt with an application for extension of time to file an appeal, against a decree passed at a time when the Limitation Act of 1908 was in force but was time-barred on the date of the presentation of the memorandum of appeal under the provisions of the new Limitation Act, although not so under the old Act One of the arguments advanced in support of the application was that there being a vested right of appeal, the time to file appeal would be governed by the old Act of 1908 because the decree was passed at a time when the old Act was in force. This argument was repelled by P. N Mookerjee. J. (D. Basu, J. agreeing with him) with the observation that the right of appeal might be a substantive right but the right to file an appeal within a particular time was not so. In that context His Lordship quoted with approval the following extract on an Allahabad derision in Baijnath v. Doolarev Hajjan ILR 50 All 865=(ATR 1928 All 708).
'Rules of limitation are prima facie rules of procedure and unless there is something in the rules which justifies contrary inferences, the rules applicable to an appeal or an application would be rules which are in force at the time the appeal or the application is filed. It has been held in numerous cases that a statute of limitation is retrospective in its operation and governs all proceedings from the moment of its enactment even though the cause of action might have accrued before the Act came into existence.'
Although generally approving of the proposition that the law limitation, being pilma facie procedural, was retrospective in nature, his Lordship did not fail to take note of an exception to the proposition, as pointed out by this Court in Maniuri Bibi v Akkel Mahmud, (1913) 17 Cal W. N. 889 and as partly adopted in Gopeswar Pal v. Jiban Chandra, I.L.R. 41 Cal 1125 :(AIR 1914 Cal 806). in the following language:
'The law as amended may regulate the procedure in suits in which the plaintiff could comply with its provisions but cannot (in our opinion) govern suits where such compliance was from the first impossible. Its effect is to regulate, not to confiscate. There are thus two positions; where, in accordance with its provision a suit could be brought after the passing of the amendment, it may be that the amendment would apply but where it could not, then amendment would have no application. The fact in Lala Soni Ram v. Kanhaivalal, (1913) 40 Ind App 74 (P.C.) did not involve the second of these positions, and we therefore hold that the decision of the majority in (1913) 17 Cal WN 889 so far as it relates to that position has not been affected by the judgment in (1913) 40 Ind App 74 (P. C.) though it may perhaps be affected if and so far as it lays down a similar rule for suits within the first of the two positions. This however, is a point not before us and on it therefore we do not express any definite opinion.'
His Lordship although agreeing with the view expressed in Gopeswar Pal's case. ILR 41 Cal 1125 = (AIR 1914 Cal 806) (F. B.) (supra) on the second position, did not, however, approve of the criticism, if any, of the view expressed on the first position in Maniuri Bibi's case, (1913) 17 Cal WN 889 (supra) in the judgment in Gopeswar Pal's case, ILR 41 Cal 1125=(AIR 1914 Cal 806) (FB). His Lordship observed:
'It has to be remembered, however, that the above reading of (1913) 17 Cal WN 889 and of the effect on it of Soni Ram's case, (1913) 40 Ind App 74 (PC) (supra), was not, as expressly stated by their Lordships in Gopeswar Pal's case ILR 41 Cal 1125 : (AIR 1914 Cal 860) (FB) (supra) in the concluding line? quoted above, a final one and. if we may respectfully point out (1913) 17 Cal WN 889 (supra) did not really contain any extreme or broad proposition to the effect that the new law would not apply to any case where the cause of action had accrued prior to its enactment but only laid down that where to apply the new law would be to destroy immediately such pre-existing causes of action, the courts would be slow, in the absence of clear, strong and imperative indications therein to the contrary to give it such retrospective effect.'
We respectfully agree with the reading of Gopeswar Pal's case, ILR 41 Cal 1125 : (AIR 1914 Cal 806) (FB) and Manjuri Bibi's case, (1913) 17 Cal WN 889, by P. N. Mookerjee J. as in Ram Prosad Ram Narain's case : AIR1966Cal488 . Now, in the case of Ram Prosad Ram Narain : AIR1966Cal488 the appeal was not a stale or a time-barred appeal on the date when the new Limitation Act came in force on January 1, 1964. The appellant had time to file the appeal upto February 24, 1964, under the new Act. He was however advised that he would have time till March 20, 1964 as under the old Act He therefore took the risk of filing the appeal on March 9, 1964. In this context, P. N. Mookerjee, J. held that the appeal was time-barred, because the appellant had no vested right in respect of time to file an appeal, although his right of appeal was a substantive one. His Lordship had no occasion to consider a case where with the coming into operation of the new Limitation Act, on January 1, 1964, an appeal became time-barred but not so under the old Act. Nevertheless, there is sufficient indication in his Lordship's judgment that he was not in favour of barring out such appeals, without more.
11. Now, in the instant case, if a fresh period of limitation had not started with the acknowledgment dated April 10, 1962 and the part payments thereafter made, the execution would have become barred in April or May 1963. On January 1, 1964, when the new Limitation Act came into operation, the decree would not have remained alive but for the acknowledgment and part payments. In the judgment in Ram Prosad Ram Narain's case : AIR1966Cal488 P. N. Mookerjee J. said nothing to indicate that the new Limitation Act had the effect of depriving decree-holders of the advantages, under the old Act, by reason of acknowledgment and part payments. That case is no authority for the proposition that decrees alive only by reason of extension of the period of limitation effected by acknowledgment and part payments automatically lose the extended life under the new Act, because no such extension is available under the new Act.
12. Mr. Mukherjee next argued that the new Limitation Act repealed the old Limitation Act of 1908 and re-enacted it. He submitted that whenever there was a repeal of an enactment the consequences as in Section 6 of the General Clauses Act would follow and would not affect any right, privilege or obligation or liability acquired, accrued or Incurred under any repealed enactment, unless a different intention appeared. In the case of a simple repeal there would be scarcely any room for a contrary opinion But when the repeal was followed by a fresh legislation on the same subject, as in the instant case, the provisions of the new legislation must be looked into for ascertaining different intention if any. He relied upon State of Punjab v. Mohan Singh, AIR 1955 SC 84 and Indira v. Custodian of Evacuee Property, : 2SCR1117 in support of his submission. Following up the above line of reasoning, he further submitted that the contrary intention was apparent from Section 30(b) of the new Limitation Act. which is as follows:--
'Notwithstanding anything contained in this Act, --
(a) * * *
(b) any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian Limitation Act. 1908, whichever period expires earlier,' He argued that the application for execution should have been filed within 90 days after January 1, 1964. The short answer to the above contention is that Article 136 does not prescribe a shorter period. The period of limitation is twelve years both under the old Article 183 and the new Article 136 Thus Section 30(b) has no application to the instant case.
13. Thus, even though the new Limitation Act is retrospective in operation, the following propositions concerning its retrospectiveness need be noted -
I. Nothing contained in the new Limitation Act shall enable any suit, appeal or application to be Instituted, preferred or made, for which the period of limitation prescribed by the old Limitation Act of 1908 expired before the commencement of the new Limitation Act. In other words, if a suit, appeal or application had become time-barred under the old Limitation Act of 1908, then even though the new Limitation Act prescribes a longer period of limitation for such suits, appeals or applications, that will not have the effect of reviving such suits, appeals or applications. This is evident from Section 31 of the new Act.
II. If, however, a suit, appeal or application was not time-barred on the date when the new Limitation Act came into operation, but for which the new Limitation Act prescribed a shorter period of limitation, then such a suit or such an appeal or application may respectively be filed within five years or ninety days next after the commencement of the new Limitation Act or within the period prescribed for such a suit or such an appeal or application by the Limitation Act of 1908, whichever period expires earlier. This is evident from Section 30 of the new1 Act.
III. If, however, a suit, appeal or application was not time-barred on the date when the new Limitation Act came into operation but for which the new Limitation Act did not prescribe a shorter period of limitation, then the period of limitation prescribed by the new Act will govern the filing of such suits, appeals or applications. This is the effect of the decision in Ram Prosad Ram Narain : AIR1966Cal488 .
IV. If, however, a suit, appeal or application would be time-barred on the date when the new Limitation Act came into operation, if the fresh start of the period of limitation under Section 19 or 20 of the old Limitation Act of 1908 be ignored, then, in cases where the new Limitation Act does not prescribe a shorter period of limitation, the new Act does not interfere with fresh start of limitation, under sections 19 and 20 of the Limitation Act of 1908. Such suits, appeals or applications may be filed within the period prescribed by the new Act, calculating nevertheless, the starting of limitation from the date when a fresh period of limitation started under Section 19 or 20 of the Limitation Act of 1908.
14. The instant case is one which falls within the fourth proposition mentioned above. But for a fresh start of limitation, by reason of acknowledgment and part-payments made in 1962, the adjusted decree of 1951 would have become time-barred for execution, in the year 1963 and could not be executed by reason of the provisions of Section 31 of the new Limitation Act. The new Limitation Act does not effect confiscation of the right of execution in such circumstances.
15. For the reasons stated above, we find no substance in the appeal. The appeal is dismissed with costs. Certified for two Counsel.
16. I agree.