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Panchanan and ors. Vs. Sidheswar Ghose and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1937Cal490
AppellantPanchanan and ors.
RespondentSidheswar Ghose and ors.
Cases Referred and Bishnudeo v. Mahadeo Prasad
Excerpt:
- .....words used what exactly was the intention of the legislature. the proviso lays down that:where a sale in execution of arrears of rent is set aside, on application, the proceedings in execution shall continue and the time between the date of such sale and the date of the order setting it aside shall be excluded from the period of limitation provided by this article.3. now, the first part of the proviso says that on the execution sale being set aside the execution proceedings which were stopped or interrupted by the sale shall continue. taken literally it must mean, that there is no necessity of any fresh application for execution, or even of an application for revival or restoration of the original petition. the proceedings shall automatically continue after the execution sale is set.....
Judgment:

B.K. Mukherjea, J.

1. This appeal raises a short and an interesting point of law which turns upon the interpretation of the Proviso to Article (6), Sob.. 3, Bengal Tenancy Act, which was inserted by Amending Act 4 of 1928. The facts necessary for purposes of this appeal may be shortly stated as follows: The decree-holders who are appellants before me obtained a rent decree against the defendants on 22nd March 1926 the decree being for a sum less than Rs. 500. Execution was started on 22nd March 1929 and on 10th July 1929 the holding in arrears was sold. On 11th January 1930 the execution case was dismissed on satisfaction. Meanwhile, a proceeding to set aside the sale was commenced by the contesting respondents, who purported to be usufructuary mortgagees under the tenants, and the sale was ultimately set aside on 30th March 1935 the order being upheld on appeal on 17th June 1935. On 26th July 1935 the decree-holders presented an application for restoration of the original application for execution, which was dismissed on satisfaction because of the execution sale, and alleged that as the execution sale was set aside, the petition for execution should be revived. This was allowed on 31st August 1935. The present respondents who are the usufructuary mortgagees of the judgment-debtors then preferred an objection under Section 47, Civil P.C., contending inter alia that execution petition was barred by limitation under Article (6), Sch. 3, Bengal Tenancy Act. The contention was negatived by the trial Court but was accepted by the Court of appeal below. The decree-holders have therefore preferred this second appeal.

2. The view taken by the lower appellate Court is that under the Proviso to Article (6), Sch. 3, Bengal Tenancy Act, the decree-holders can deduct the period from the date of the execution sale and the date when the sale was set aside. As the application for restoration was made at a time which even after excluding this period was beyond three years from the date of the decree, the application was time-barred. The propriety of this view has been challenged on behalf of the appellants, and it is necessary to look closely into the wording of the proviso to find out what exactly it means. It may be mentioned at the outset that even before the proviso was inserted by the Amending Act of 1928 in cases when execution proceedings were interrupted by reason of circumstances over which the decree-holders had no control, the executing Courts did frequently treat the subsequent application for execution as continuation of the original application when the subsequent application prayed for the same relief and there was no laches on the part of the decree-holders. The cases in Kalanand v. Chandra Kishore (1910) 12 C L J 192; Tilakdhari Lal v. Bikram Singh AIR 1914 Cal 269 and Bishnudeo v. Mahadeo Prasad AIR 1927 Pat 223 may be cited as instances, when such course was adopted. The Legislature has now introduced the Proviso to set all doubts at rest, but unfortunately the language of the proviso is far from happy, and it is difficult to say from the words used what exactly was the intention of the Legislature. The Proviso lays down that:

Where a sale in execution of arrears of rent is set aside, on application, the proceedings in execution shall continue and the time between the date of such sale and the date of the order setting it aside shall be excluded from the period of limitation provided by this Article.

3. Now, the first part of the proviso says that on the execution sale being set aside the execution proceedings which were stopped or interrupted by the sale shall continue. Taken literally it must mean, that there is no necessity of any fresh application for execution, or even of an application for revival or restoration of the original petition. The proceedings shall automatically continue after the execution sale is set aside, and all that is necessary for the decree-holders is to apprise the executing Court of this fact and to take further steps in connexion with the execution proceedings. But the words that follow create some difficulty. The words are to the effect that for computing the period of limitation under Article (6), the period between the date of sale and the date of setting aside the sale shall be excluded. Does this provision also refer to and govern the case, when the execution proceeding continues after the setting aside of the execution sale as laid down in the previous clause or is it meant to be a general provision laid down for calculating the period of three years within which the execution of a rent decree for a sum less than Rs. 500 is to be made? The acceptance of the first interpretation will, in my opinion, lead to anomalous and absurd results. If the execution proceeding automatically continues after the sale is set aside, there could be no necessity for a second application for execution, and no question of deducting the period between the date of sale and the date of setting aside the sale can at all arise. If we say that these words show that a second application for execution is necessary, even then we are confronted with an anomalous position. A decree-holder may have started the execution proceeding just within three years from the date of the decree, as happened in the present case. The sale may be held six months after the execution petition is filed, and the sale may be set aside one year after the date of the sale.

4. If now the decree-holder presents his application and immediately after the setting aside of the sale his application could not be in time according to the proviso, as he will get a deduction only for the period between the date of sale and the date when the sale is set aside but not of the period of six months which preceded the sale. As we cannot overlook any part of the section, and some meaning must be attached to the last clause in the proviso, I think that the only meaning which can be given to it is that it is intended to be a general provision applicable not when the execution proceeding continues under the preceding clause, but when a fresh application for execution is made by the decree-holder, and there had been any rent sale at an earlier stage which was subsequently set aside. If for example, after the application is revived, it is dismissed for default on the part of the decree-holder and a fresh application for execution is made by him, he will be in time under Article (6), Sch. 3, if he is within three years from the date of the decree, deducting from it the period of any proceeding to set aside an execution sale. Taking the facts of the case before me, I find that the application for revival was made nearly a month after the order setting aside the sale was confirmed by the appellate Court. There is no question of excluding or not excluding this period at all, as in my opinion, no such application is necessary. The application, however, may be taken to be a step taken by the decree-holder in continuation of the execution proceedings. If there is an unreasonable delay in coming to Court it can dismiss the execution case for default. But if the Court does not consider the delay to be unreasonable and does not dismiss the execution petition, this delay does not constitute a factor in determining the period of limitation in cases where the execution proceeding continues under the first part of the proviso.

5. In my opinion, therefore, the Court of appeal below was wrong in dismissing the execution petition on the ground of limitation. It seems to me further, that the order reviving the application for execution was passed on 31st July 1935, without any objection on the part of the judgment-debtor upon whose pleader a notice seems to have been served. This order was not challenged by way of appeal or otherwise. I think that the present objectors who purport to be mortgagees under the judgment-debtor are not competent to challenge this order now in their objection under Section 47, Civil P.C. I therefore hold that this appeal should succeed. The judgment of the Subordinate Judge is set aside, and that of the trial Court restored. The appellant will be entitled to his costs. I assess the hearing fee at 2 gold mohurs. Leave for appeal under Clause 15 of the Letters Patent is prayed for and granted.


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