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Benode Chatterjee Vs. Purnendu Nath Tagore - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata High Court
Decided On
Case NumberSuit No. 2205 of 1952
Judge
Reported inAIR1973Cal352
ActsLimitation Act, 1963 - Schedule - Article 136; ;Indian Succession Act, 1925 - Section 214 (1)
AppellantBenode Chatterjee
RespondentPurnendu Nath Tagore
Appellant AdvocateS.K. Bose, Adv.
Respondent AdvocateP. Banerjee, Adv.
Excerpt:
- .....road, calcutta, has been moved before me by the heirs and legal representatives of the plaintiff-decree holder, one benode chatterjee since deceased. the application has been made on tabular statement affirmed by the said plaintiff-decree-holder on 27th january, 1965. it appears from endorsement in the tabular statement that direction was given by the learned master on the same date for issue of notice under order xxi rule 22 (1) (a) of the code of civil procedure. the application was made within 12 years when the default in making the payment directed in the decree in respect of which execution, is sought took place i.e., 28th february 1953.2. the notice under order xxi. rule 22 (11 (a) was not issued and the plaintiff-decree-holder did not take any step. on april 22. 1965 pending the.....
Judgment:
ORDER

A.K. Sarkar, J.

1. An application for execution of a money decree dated 30th January. 1953 by attachment and sale of the defendant's sixteen annas share in the divided portion of premises No. 30, Maharshi Debendra Road, Calcutta, has been moved before me by the heirs and legal representatives of the plaintiff-decree holder, one Benode Chatterjee since deceased. The application has been made on Tabular Statement affirmed by the said plaintiff-decree-holder on 27th January, 1965. It appears from endorsement in the Tabular Statement that direction was given by the learned master on the same date for issue of notice under Order XXI Rule 22 (1) (a) of the Code of Civil Procedure. The application was made within 12 years when the default in making the payment directed in the decree in respect of which execution, is sought took place i.e., 28th February 1953.

2. The Notice under Order XXI. Rule 22 (11 (a) was not issued and the plaintiff-decree-holder did not take any step. On April 22. 1965 pending the said execution the plaintiff decree-holder died leaving him surviving Sm. Basanti Chatterjee, widow and Parthe Chatterjee, son as Ms heirs and legal representatives. The said heirs and legal representatives in November 1965 made an ex parte application in this Court whereupon on 9th December. 1965 Order was made by Masud. J., recording the death of the plaintiff-decree-holder amending the register of the suit by substituting in the cause title thereof the names, address and descriptions of the applicants, for issue of usual Notice under Order XXI, Rule 22 (1) (a) and Notice under Order XXI, Rule 41 of the Code of Civil Procedure. The notice under Order XXI, Rule 41 of the Code was not issued nor did the applicants take any step under the said order.

3. A notice under Order XXI, Rule 22 (1) (a) of the Code of Civil Procedure dated 27th January, 1965 was issued by the Court on 22nd March, 1972 and was served on the defendant-judgment-debtor on 24th May, 1972.

4. The applicants, the said heirs and legal representatives of the plaintiff-decree-holder now proceed with execution of the said decree by the said Tabular Statement affirmed by the plaintiff-decree-holder on 27th January, 1965, as herein above stated. The application is contested on behalf of the judgment-debtor on the grounds that,

(1) the applicants having made an application in November, 1965, obtained order on 9th December 1965 inter alia for issue of Notice under Order XXI, Rule 41 of the Code of Civil Procedure on the judgment-debtor, which being substantially a different relief from what was originally prayed for in the pending application, thereby made a fresh application beyond 12 years from the date of the decree i.e., 30th January, 1965, or from the date of default in payment directed by the decree i.e., 28th February, 1965. Therefore the original application was deemed to be finally disposed of and the aforesaid fresh application was made beyond the prescribed time of 12 years is not maintainable relying upon a decision reported in : [1964]6SCR251 .

The Counsel for the applicants made faulty arguments in pressing that by the decree, the decree-holder was directed not to execute the decree for 18 months from the date of the decree i.e., 30th January, 1953. The said period of 18 months according to him should be excluded in computing the time for executing the decree. The argument is patently incorrect because the said restraint on the decree-holder was conditional upon certain payments and in default of the payment as directed in the decree within a month from the date of decree, the decree-holder was entitled to execute the decree forthwith. There was default and the decree became executable after 28th February, 1953.

(2) Secondly, the Counsel for the judgment-debtor submitted that the Court should not proceed upon application of the applicants claiming on succession to execute against a debtor of a deceased person a decree for payment of his debt except on production of probate or succession certificate under the provisions of Section 214 of the Indian Succession Act and relied upon a judgment reported in AIR 1938 Nag 528. On this point the Counsel for the applicants relied upon a case reported in : AIR1972All321 .

5. With regard to first objection on behalf of the judgment debtor, the decision in the case reported in : [1964]6SCR251 , has been summed up in paragraph 9 at p. 1458, as follows:

'An application made after 12 years from the date of the decree would be fresh application within the meaning of Section 48 of the Code of Civil Procedure, if the previous application was finally disposed of. It would also be a fresh application if it asked for a relief against parties or proper-tics different from those proceeded against in the previous execution petition or asked for a relief substantially different from that asked for in the earlier petition.'

6. Upon analysis of the Supreme Court decision it seems to me that, the application of the applicants made in Nov. 1965 before Masud J. was though an application made beyond the prescribed period of 12 years from the date of default in payment directed by the decree, was not an application for execution of the instant decree which could only be made under Order XXI, Rule 11 (2), of the Code. Further, the pending application for execution on Tabular Statement was not then finally or at all disposed of. The orders made on the application on 9th December, 1965 were formal, no notice under Order XXI, Rule 41 of the Code was issued. The said application in November 1965 in my view cannot be considered as a fresh application. It was rather an application in connection with and in aid of the said previous application for execution on Tabular Statement dated 27th January, 1965 which was then pending. The said decision of the Supreme Court therefore has no application in the facts and circumstances of the instant case.

7. Regarding the second objection made on behalf of the judgment-debtor under the provisions of Section 214(1)(b) of the Indian Succession Act, the bar in my view, applies when persons claiming on succession themselves apply to execute a decree against a debtor for payment or recovery of the deceased's debt. But in the instant case no substantive application was initiated by the heirs and legal representatives of the deceased decree-holder themselves for execution of the said decree dated 30th January, 1953. The application before me moved by the applicants is on Tabular Statement affirmed by the original decree-holder on 27th January, 1965, i.e., in continuation of the execution proceedings already initiated by the plaintiff decree-holder, since deceased.

8. In this connection a decision reported in : AIR1972All321 is relied upon. The decision reported in AIR 1938 Nag 528 and cited by the Council on behalf of the judgment-debtor is not directly on point because the application before me is not an application by the heirs of the deceased decree-holder for substitution and in my view on the death of a decree-holder pending execution proceedings, substitution of his heirs in the said proceedings is not necessary.

9. In the result there will be an order in terms of column 10 of the Tabular Statement. But as the applicants are guilty of inordinate delay in continuing the pending execution proceedings without any explanation whatsoever, they will not be entitled to any costs of this application. Certified for counsel.


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