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Amarendra Lal Khan Vs. Manindranath Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 217 of 1952
Judge
Reported inAIR1955Cal269,59CWN695
ActsLimitation Act, 1908 - Sections 3, 15 and 29; ;Code of Civil Procedure (CPC) , 1908 - Sections 15 and 48
AppellantAmarendra Lal Khan
RespondentManindranath Roy and ors.
Appellant AdvocateBankim Chandra Banerjee and ;Umaprasad Mukherjee, Advs.
Respondent AdvocateSarat Chandra Jana and ;Sambhunath Banerjee, Advs.
DispositionAppeal allowed
Cases ReferredPromode Kumar v. Hirendra Nath
Excerpt:
- .....local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law --(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as andto the extent to which, they are not expresslyexcluded by such special or local law'; he contended that in view of the said section the provisions of section 15, limitation act would not apply to any special or local law which may 'be in force. we do not see how mr. jana can at all maintain that.....
Judgment:

S.R. Das Gupta, J.

1. This is an appeal by the decree-holder against an order passed by the Subordinate Judge, Midnapore, on an application under Section 47, Civil P. C., dismissing an application for execution for the balance of a rent decree.

2. The matter arises in this way: On 17-4-1935, the appellant obtained a decree in a rent suit for the sum of Rs. 5,727-15-0. Thereafter the debtors went to the Debt Settlement Board, but ultimately their application was dismissed for non-prosecution by the Debt Settlement Board. Then on 1-11-1941, a petition for execution of the decree was filed by the appellant. In the 'application which was made the assistance of the Court was sought by attachment and sale of the movables ' belonging to the judgment-debtors. Three objections were filed by the judgment-debtors under Section 47, Civil P. C. in the said execution case and as a result thereof three miscellaneous cases were started. The main ground of objection taken by the judgment-debtors was based on Section 168A, liengal Tenancy Act; in other words, it was contended that in view of the provisions of Section 168(1)(a), Bengal Tenancy Act no sale of the movables sought to be attached can be effected in execution of the said decree.

It would be necessary at this stage to refer to the contents of the said application for execution. In the said application it was stated that as the decree-holder had caused the tenure to be sold and had purchased it, the other properties of the judgment-debtors cannot be held liable for the payment of the balance of the decree. In substance what was contended was that in view of the provisions of Section 168A, Bengal Tenancy Act only the tenure could be sold in execution of the rent decree and the said tenure having already been sold the decree could not be executed by sale of any other property of the judgment-debtors. The said objection under 9. 47, Civil P. C. was upheld by the trial Court. Against that decision an appeal was taken to the Court of theDistrict Judge. The lower appellate Court reversed the said decision. Thereupon three appeals were preferred to the High Court against the said decisions. I should have mentioned that the lower Court on 19-11-1942, on being apprised of the fact that appeals have been preferred to the High, Court made the following order: 'The execution of the decree be stayed until further orders.'

The stay remained in operation from 17-11-1942, to 17-7-1949. By an order of the High Court dated 18-7-1949, the matter was sent back to the trial Court for re-hearing. Thereafter on 27-7-1949, the decree-holder filed a petition for amendment of the original application for execution. In the said petition the amendment sought for was substitution of the immovables in the place of the movables which was in the original petition. An order was made on the said application allowing the amendment. The judgment-debtors thereupon, it appears, applied for stay and we are told that the execution of the decree remained stayed from. 8-9-1949 to 9-1-1951, and on 9-1-1951, the stay was vacated. On 26-8-1951, in execution of the said decree an attachment was effected on the immovable properties mentioned in the amended application for execution. Thereafter on 22-9-1951, the present objections were filed under Section 47, Civil P. C. In the said application under Section 47 of the Code it was stated that the order complained of, that is to say, the order of amendment made on 27-7-1949, had been passed without giving an opportunity to the applicants-judgment-debtors to put forward their objections.

It was also contended that apart from the amendment of petition for execution under Order 21, Rules 11, 12, 13 and 14, Civil P. C. any other mode of amendment was not legal. In the circumstances the objectors prayed 'inter alia' for an order for reconsidering or recalling the order on a declaration that the application of the decree-holder dated 27-7-1949, is barred by limitation and that it may be declared that such amendment of the petition for execution is illegal, 'ultra vires' and the order dated 27-7-1949 may be vacated. In other words, in the said application the judgment-debtors sought to have the said order vacated on the ground that it was obtained without any notice to them and they also contended that the application for execution, which was started after the expiration of 12 years from the date of the decree, was barred by limitation. In support of the objection as to limitation reliance was placed on Section 48, Civil P. C. which provides: 'Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from -

(a) the date of the decree sought to be executed.'

The other portions of the said section are not necessary to be considered in the present appeal. What was contended before the lower Court was that the application for amendment dated 27-7-1949 was really a fresh application and the same was made after the period of 12 years from the date of the decree and, therefore, under Section 48,Civil P. C., that application was barred. The learned Judge upheld that contention and the said application for execution dated 27-7-1949 was dismissed. It is against that order that the present appeal has been preferred to this Court.

3. The learned Advocate for the appellant raised various contentions before us, but in our opinion this appeal can be disposed of only, on one of them. The learned Advocate for the appellant contended that the application for execution, even if it be assumed that the application for amendment was really a fresh application, was saved from the bar of limitation, because, of the provisions of Section 15, Limitation Act; in other words, he contended that the period during which the execution remained stayed, that is to say, from 17-11-1942 to 17-7-1949 has to be excluded In computing the period of limitation for the execution of the said decree. If that is done, then, according to him, it is clear that the application dated 27-7-1949 even if it be a fresh application for execution was not barred by limitation. In order to determine this question it would be necessary for us to refer to the provisions of Section 15, Limitation Act and consider the application thereof. The material portion of the said section reads as follows:

15. (1) 'In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.'

4. The question which arises for our determination is whether or not Section 15, Limitation Act governs Section 48, Civil P. C.; in, other words, the' question is whether the provisions of Section 15, Limitation Act are limited only to the First Schedule of the Limitation Act and not to the provisions of any other law by which any period of limitation may have been prescribed for any particular matter. This question is not free from difficulty and there have been conflicting decisions of various High Courts on this point. Originally, the Madras High. Court took the' view that Section 15, Limitation Act does not govern Section 48, Civil P. C.; --. 'Subbarayan v. Natarajan', AIR 1922 Mad 268 (A). The said view was overruled by a Full Bench of the same High Court in the case of -- 'Kandaswami Pillai v. Kannappa Chetty', : AIR1952Mad186 where it was held that Section 15, Limitation Act is applicable to Section 48, Civil P. C.; in other words, if the execution of the decree has been stayed for a particular period, then that period is to be excluded in determining whether or not an application is barred under Section 48, Civil P, C.

The same view has also been taken in a Full Bench decision of the Allahabad High Court in the case of -- 'Durag Pal Singh v. Pancham Singh : AIR1939All403 . It also appears that the Bombay High Court has also taken the same view. There is no direct decision on this point by this Court except the case of -- 'Makhan Lal Saha v. Firm Madan Mohan Ashutosh Saha', 50 Cal WN 12 (D). With regard to the last decision it may be noted that the observations ofHenderson J., who decided the said case, on the point were in the nature of -- 'obiter dicta' and there is hardly any reason given for the said view. In our opinion not much assistance can be-had from the said observations. It appears, however, that in the case of -- 'Promode Kumar v. Hirendra Nath', : AIR1952Cal232 Chakravartti J., as he then was, sitting with Harries C. J., has taken the view that Section 48, Civil P. C. really provides a period of limitation within, which a fresh application for execution can be made and his Lordship held that the provisions of Section 52, Bengal Agricultural Debtors Act govern the provisions of Section 48, Civil P. C.It must Be noted that the said decision is no direct authority on the question which we have to determine now namely the applicability of Section 15, Limitation Act to Section 48, Civil P. C. The said decision helps us only to this extent, namely, that it establishes that Section 48, Civil P. C. lays down a period of limitation and if it lays down a period of limitation then it follows that it should be subject to all the saving clauses provided for in the Limitation Act. But, as I have indicated, It is no direct authority oil the question which is now agitated before us. We are, however, of the opinion that the view taken by the Full Bench of the Madras High Court and the Full Bench of the Allahabad High Court and the Bombay decision is correct, and we entirely agree with the view taken in those decisions.

5. Mr. Jana appearing on behalf of the respondents contended that the words 'the period of limitation 'prescribed' for any suit or application' really refer to the period of limitation prescribed by the First Schedule of the Limitation Act. In support of that proposition he drew our attention to Section 3, Limitation Act wherein it is provided as follows :

'Every suit instituted, appeal preferred, and application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed, although limitation has not been set up as a defence.'

Mr. Jana contended that the words used in thesaid section are 'the period of limitation prescribed therefor by the First Schedule' and if,in subsequent sections, which follow Section 3, thewords used are 'the period of limitation prescribed', the same must mean 'the period 'of limitation prescribed therefor by the First Schedule' asstated in Section 3. We are unable to accept this contention. Mr. Jana has also referred us to Section 29Limitation Act which 'inter alia' lays down asfollows :

'Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law --

(a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only in so far as andto the extent to which, they are not expresslyexcluded by such special or local law'; He contended that in view of the said section the provisions of Section 15, Limitation Act would not apply to any special or local law which may 'be in force. We do not see how Mr. Jana can at all maintain that position. In the first place, Section 29 refers to special or local law and in the second place, it states that the provisions of Ss. 9 to 18 shall apply only in so far as & to the extent to which they are not expressly excluded by such special or local law. Even if we assume that Section 48, Civil P. C. is a special or a local law, even then there is nothing in the said section which expressly excludes the operation of Section 15, Limitation Act. Therefore, the position is that either it is not a special or a local law in which case Section 29 is not at all applicable, or if it is a special or a local law then there is nothing in the said section which expressly excludes the operation of Section 15, Limitation Act. We are entirely unable to accept the contention of Mr. Jana on this point.

6. It seems to us to be clear that where thewords used are simply 'the period of limitation prescribed' without stating 'prescribed in the first schedule of the Limitation Act' they refer-to any period of limitation prescribed either in the Limitation Act or in any other law. I have already indicated that we are unable to accept the view that because it is stated in Section 3, Limitation Act -- the expression used in that section being 'any period of limitation prescribed therefor in the first schedule' -- it should be held that in all subsequent sections wherever the words are 'the period of limitation prescribed', they mean the period of limitation prescribed in the first schedule. Such a conclusion would lead to absurd results, for instance, if that construction is to be applied to Section 4, Limitation Act (which provides that 'Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens') the result will be that if the last day for an application under Section 48, Civil P. C. happens to expire on a day when the Court is closed, that application cannot be moved on the day when the Court reopens, because, Section 4, Limitation Act would not on that construction apply to Section 48, Civil P. C. That in our opinion would lead to absurdity. In the result, therefore, we hold that Section 15, Limitation Act governs Section 48, Civil P. C. If that is so, then irrespective of the question as to whether or not the application which was made on 27-7-1949 was a fresh application, the same would not be barred by limitation.

7. Mr. Jana also contended before us, and there is some force in that contention, that Section 15, Limitation Act would be applicable if the whole decree had been stayed by an injunction or order, but if only certain modes of execution have been stayed and the decree can be executed by other means, then Section 15, Limitation Act would not apply to Section 48, Civil P. C. In other words, Mr. Jana contended that in the original application for execution the decree-holder claim-ed the assistance of the Court by sale of the movables and that was the only prayer in, the said application for execution. When the decree was stayed what was meant was that the decree was stayed so far as that application was concerned; in other words, the execution of the decree by sale of the movables only was stayed but that did not prevent the decree-holder from otherwise executing the decree and the decree-holder could still then proceed with an application for execution of the decree by sale of the immovable properties belonging to the judgment-debtors. If then the decree-holder has now made an application for execution by sale of the immovable properties of the judgment-debtors after a period of twelve years from the date of the decree that application would not be protected by Section 15, Limitation Act, because, the whole decree was not stayed and what was stayed was only the execution of the decree by sale of the movables.

In order to determine this contention of Mr. Jana it would be necessary to see what was stayed by the order of the Court and in order to determine that we shall have to refer to the original application for execution, the objections which were filed by the judgment-debtors in relation thereto and the order which has been passed by the Judge thereon. As I have already -indicated the application for execution, as it originally stood, was based on Section 168A, Bengal Tenancy Act. That section prohibits execution by sale of any other property except the tenure; in other words, that section is a bar to the sale in execution not only of the movables but also of the immovables other than the tenure. It is true that in the original application the assistance of the Court was sought by sale of the movables only, but we find from the objection filed by the judgment-debtors to the said application for execution that what the judgment-debtors contended therein was that in view of the fact that the tenure had already been ' sold in auction at the instance of the decree-holder, no other property of the judgment-debtors can be sold in execution of the decree; in other words, the plea taken was that the execution of the decree cannot proceed with respect to any other property of the judgment-debtors including movables and immovables. It is upon that objection that the order was made by the learned Judge and the execution was stayed. As I have said the words used by the learned Judge are very wide and all that he has said is 'execution is stayed'. The question is what was the real implication of that order? In our opinion 'having regard to the circumstances of the case, the petition of objection and the provisions of Section 168-A, Bengal Tenancy Act what was stayed was the execution of the decree by sale. We agree with Mr. Jana that the personal execution against the judgment-debtors was not stayed, but the present application which is the subject-matter of the appeal was not an application for personal execution but application for execution by sate of the immovable properties. In our opinion such execution is covered by the order for stay made by the learned Judge. In the premises we hold that this contention of Mr. Jana must fall.

8. In the result, therefore, this appeal should be allowed and we make an order accordingly. The order of the learned Judge is set aside and we hold that the appellant's application for execution is not barred by limitation.

9. The appellant is entitled to costs of this appeal -- the hearing fee being assessed at three gold mohurs.

10. Mallick, J.

I agree.


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