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Kalipada Singha Roy Vs. Dandy Swami Hrishikesh Asram - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 74 of 1956
Judge
Reported inAIR1961Cal379
ActsTenancy Law; ;Bengal Tenancy Act, 1885 - Sections 184 and 185 - Schedule - Article 6; ;Limitation Act, 1908 - Sections 19 and 29(2)
AppellantKalipada Singha Roy
RespondentDandy Swami Hrishikesh Asram
Appellant AdvocateSamarendra Nath Benerjee and ;Anil Kumar Sen, Advs.
Respondent AdvocateAmiya Kumar Mukherjee and ;Prodyut Kumar Banerjee, Advs.
DispositionAppeal allowed
Cases Referred and Priyakanta v. Sudhir Chandra
Excerpt:
- .....under section 47 of the code of civil procedure, taken by a judgment-debtor to the execution of a rent decree.2. the decree-holder respondent obtained a rent decree against the judgment-debtor appellant for a sum of rs. 128/-. the decree was dated january 31, 1949.3. the decree was put to execution in rent execution case no. 378 of 1951. the case was struck off for default, on november 6, 1951.4. on march 19, 1952 the decree-holder filed an application under section 151 of the code of civil procedure for revival or restoration of the execution case, dismissed for default. there was a compromise between the decree-holder and the judgment-debtor, effected, on may 31, 1952, in the said proceeding. the judgment-debtor acknowledged his liability under the decree and promised to pay the dues.....
Judgment:

Banerjee, J.

1. This appeal is directed against an appellate order reversing the order, passed by a learned Munsif, on an objection, under Section 47 of the Code of Civil Procedure, taken by a judgment-debtor to the execution of a rent decree.

2. The decree-holder respondent obtained a rent decree against the judgment-debtor appellant for a sum of Rs. 128/-. The decree was dated January 31, 1949.

3. The decree was put to execution in Rent Execution Case No. 378 of 1951. The case was struck off for default, on November 6, 1951.

4. On March 19, 1952 the decree-holder filed an application under Section 151 of the Code of Civil Procedure for revival or restoration of the execution case, dismissed for default. There was a compromise between the decree-holder and the judgment-debtor, effected, on May 31, 1952, in the said proceeding. The judgment-debtor acknowledged his liability under the decree and promised to pay the dues under the decree in monthly instalments, within a period of two years. The execution case was thereupon dismissed.

5. Untrue to his promise, the judgment-debtor did not pay the monthly instalments. Thereupon, the decree-holder started a fresh execution of the rent decree, on June 10, 1954, being Rent Execution Case No. 128 of 1954.

6. The judgment-debtor objected to the execution of the decree pleading limitation, under Article 6, Schedule III of the Bengal Tenancy Act, as a bar. The objection was registered as Misc. Case No, 87. of 1954.

7. The contention of the decree-holder, in the aforesaid Misc. Case No, 87 of 1954, was that the acknowledgment of the debt by the judgment-debtor.on May 31, 1952, gave a fresh start of limitation, under Section 19 of the Indian Limitation Act.

8. The executing Court was of the opinion that the acknowledgment having been made after the expiry of the period of limitation, Section 19 of the Limitation Act would not be of any avail to the decree-holder. In that view of the matter the objection, under Section 47 of the Code of Civil Procedure, was allowed and the execution case was dismissed.

9. The decree-holder preferred an appeal before the lower appellate court. The lower appellate court reversed the order, being of the following opinion:

'On 31-5-52 when the rent execution case No. 378 of 1951 was pending, the decree under execution was not barred by limitation and the acknowledgment in the petition of compromise was made in writing and signed by the judgment-debtor respondent before the decree in question was barred by limitation and as such this acknowledgment which was made according to the provisions of Section 19 of the Limitation Act, gave a fresh start of limitation for another period of 3 years from the date of acknowledgment, i.e. from 31-5-52''. The propriety of the appellate Order is being disputed in this appeal.

10. Mr. Samarendra Nuth Banerjee, learned Advocate for the appellant, made a two-fold contention before us. He contended, in the first place, that Rent Execution Case No. 378 of 1951 had been struck off on November 6, 1951 and Court of appeal below was in error in holding that the same was pending on May 31, 1952, when the acknowledgment of the debt had been made by the judgment-debtor, in the petition of compromise, in the proceeding for restoration of Rent Execution Case No. 378 of 1951. Mr. Banerjee contended, in the next place, that the rent decree being for a sum of Rs. 128/- only was governed by the provisions of Schedule III, Article 6 read with Sections 184 and 185 of the Bengal Tenancy Act and there was no scope for the application of the provisions of Section 19 of the Indian Limitation Act.

11. The first contention of Mr. Banerjee can be easily disposed of. The striking off of an execution petition, by itself, does not indicate determination of the execution proceedings. Such an order is more or less of an administrative nature, frequently passed for statistical purposes of quarterly returns to be made by the Subordinate Judiciary. A subsequent application either for revival of the case struck off or in the form 5f a fresh application for execution should ordinarily be treated as a continuation of that execution case, which had been struck off. We are fortified in the aforesaid view by several decisions of this court, out of which we refer to two only - Kristo Kamini v. Girish Chandra, AIR 1936 Cal 239 and Priyakanta v. Sudhir Chandra : AIR1939Cal471 . In our opinion, the court of appeal below was not in error in holding that Rent Execution Case No. 378 of 1951 was pending, on May 31, 1952, when the acknowledgment had been made.

12. The second contention of Mr. Banerjee, however, deserves careful consideration.

13. Schedule III Article 6 of the Bengal Tenancy Act, a Local Law, prescribes a special period of limitation for execution of rent decrees, for a sum not exceeding Rs. 500/-.

14. Section 29(2) of the Indian Limitation Act is to the following effect:

'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 purposes 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 in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and

(b) The remaining provisions of this Act shall not apply.'

15. It Section 29 (2) of the Indian Limitation Act had stood alone, Section 19 of the said Act would not have certainly been attracted to execution proceedings, governed by the special law of Limitation as in Article 6 Schedule III of the Bengal Tenancy Act.

16. But in Chapter XVI of the Bengal Tenancy Act, dealing with limitation, there is Section 185, which is as follows:

'Sections 6, 7, 8 and 9 and Sub-section 29(2) of the Indian Limitation Act, 1908 shall not and subject to the provisions of this Chapter the remaining provisions of that Act, shall apply to all suits, appeals and applications specified in Schedule III annexed to this Act,'

The bar, as under Section 29(2) of the Indian Limitation Act, being removed by Section 185 of the Bengal Tenancy Act, Section 19 becomes attracted to suits, appeals and applications specified in Schedule III of the Bengal Tenancy Act, but subject always to the provisions contained in Chapter XVI of the latter Act.

17. The only other provision as to limitation, in Chapter XVI of the Bengal Tenancy Act, is to be found in Section 184, which reads as follows:

'The suits, appeals and applications specified in Schedule III annexed to this Act shall be instituted or made within the time prescribed in that Schedule for them, respectively; and every such suit or appeal instituted and application made after the period of limitation so provided shall be dismissed although limitation has not been pleaded.'

18. Section 184 of the Bengal Tenancy Act is substantially a bodily reproduction of the provisions of Section 3 of the Indian Limitation Act, in the former Act.

19. The point for our consideration is whether Section 184 of the Bengal Tenancy Act, which controls Section 185, bars the application of Section 19 of the Indian Limitation Act to execution proceedings governed by Article 6, Schedule III of the Bengal Tenancy Act.

20. Section 184 of the Bengal Tenancy Act deals only with the institution of suits and appeals and the making of applications, including, as itmust be, applications for execution of decrees. In respect of those matters alone, Section 184 controls Section 185 of the Bengal Tenancy Act. Therefore, suits, appeals, or applications, referred in Schedule III, must be instituted or made, as the case may be, within the period of limitation prescribed in the said Schedule and failure to do so shall entail dismissal thereof as expressly stated in Section 184 of the Bengal Tenancy Act. But as soon as such suite, appeals or applications are instituted or made, Section 185 of the Bengal Tenancy Act comes into play, uncontrolled by Sec, 184, and excluding the pro-visions of Sections 6, 7, 8, 9 and 29(2), the remaining provisions of the Indian Limitation Act shall apply to suits, appeals and applications, as specified also in Schedule III of the Bengal Tenancy Act. Thus if an application under Section 47 of the Civil Procedure Code, made in an execution proceeding, governed by Schedule III Article 6 of the Bengal Tenancy Act, be either allowed or dismissed, an appeal against such order must be preferred within the period of limitation prescribed in Article 152 of the Indian Limitation Act and the appellant shall be entitled also to -the benefits of Section 12 of the Limitation Act, and further to the benefit of Section 5 of the latter Act, if occasion arises.

21. But the provisions of Section 185 of the Bengal Tenancy Act notwithstanding, the limitation prescribed in Schedule III for the institution of suits and appeals or the making of applications, must not he extended under any of the provisions of the Indian Limitation Act, because in respect of those matters Section 185 is controlled by Section 184 of the Bengal Tenancy Act and the special law as to limitation prevails.

22. In the instant case the decree was of the date January 31, 1949. Rent Execution case 128 of 1954 was filed on June 10, 1954. This was beyond the period of limitation prescribed in Article 6, Schedule III of the Bengal Tenancy Act. The application for execution was, therefore, time-barred and deserved to be dismissed.

23. On a ground different from that given by the executing court, we hold that the objection under Section 47 of the Code of Civil Procedure Code, was properly upheld by the executing court. We, therefore, set aside the order made by the court of appeal below and restore the order made by the first Court. The execution case shall stand dismissed.

24. This appeal is allowed. In the circumstances of the case, we order that the parties shall bear their own costs throughout.

Guha, J.

25. I agree.


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