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Sm. Tarakdasi Debi and anr. Vs. Paresh Chandra Saha - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 32 of 1963
Judge
Reported inAIR1967Cal332
ActsLimitation Act, 1908 - Section 15 - Schedule - Article 182(2)
AppellantSm. Tarakdasi Debi and anr.
RespondentParesh Chandra Saha
Appellant AdvocateNiranjan Benerjee and ;Mrinal Kumar Ghosh, Advs.
Respondent AdvocateAmarendra Nath Gupta, Adv.
DispositionAppeal dismissed
Cases Referred and Gyaniram v. Gangabai
Excerpt:
- .....in this appeal died about a year ago, it is declared that the appeal has abated.'thereafter, the present execution case was started on june 9, 1961. to this execution, objections were filed by the present appellants on two grounds, namely, (1) that the execution was time-barred and (2) that the execution was not maintainable, not, at any rate, at the instance of the applicant (respondent) alone. both these objections were overruled by the two courts below. hence this second miscellaneous appeal in this court.3. on the point of limitation, the appellant's objection was to this effect that, as, in the second appeal, mentioned hereinbefore, the sole respondent had died in 1956 and the appellant in or about the year 1957, the appeal came to an end, at least, in 1957, and the present.....
Judgment:

P.N. Mookerjee, J.

1. This appeal is by the judgment-debtor's representatives against the respondent, who, again, is the legal representative of the original decree-holder, the original judgment-debtor and the original decree-holder having both died in the course of the present litigation.

2. The decree is one for ejectment and costs. It was obtained a long time back. From the decree of the original Court, there was an appeal to the lower appellate court and, thereafter, a second appeal to this Court by the original judgment-debtor. During the pendency of that second appeal, the decree-holder first died in January 1956 and thereafter, it appears, the judgment-debtor died in or about the year 1957. The appeal, however, remained on the file of this Court until it appears to have been disposed of by an order of my learned brother, Banerjee, J., passed, on March 17, 1959, to the following effect:

'It being represented by the Advocate for the appellant that the sole appellant in this appeal died about a year ago, it is declared that the appeal has abated.'

Thereafter, the present execution case was started on June 9, 1961. To this execution, objections were filed by the present appellants on two grounds, namely, (1) that the execution was time-barred and (2) that the execution was not maintainable, not, at any rate, at the instance of the applicant (respondent) alone. Both these objections were overruled by the two courts below. Hence this second miscellaneous appeal in this Court.

3. On the point of limitation, the appellant's objection was to this effect that, as, in the second appeal, mentioned hereinbefore, the sole respondent had died in 1956 and the appellant in or about the year 1957, the appeal came to an end, at least, in 1957, and the present execution, filed on June 9, 1961, was time-barred, as it was filed beyond three years from the said termination of the second appeal. The appellants contend as part of this submission that the order of Banerjee, J. declaring that the appeal has abated would have no effect on limitation, as, under the law, the abatement would take place, as a matter of course, on the death of the party concerned irrespective of any order from Court and, indeed, no order of the Court was or would be necessary in that behalf. It was further contended that the order of Banerjee, J. was, in no sense, a judicial order but only an administrative order and could not be effective or relevant for purposes of the relevant Article 182(2) of the Indian Limitation Act. This submission of the appellants has been rejected by both the courts, relying, primarily, on a decision of this Court, reported in Gohur Bepari v. Ram Krishna Saha : AIR1927Cal760 . That decision has been sought to be distinguished by Mr. Banerjee, appearing for the appellants before me, on the ground that, in the first place, that was a case, where the abatement had occurred, not as a result of the death of the sole appellant, as in this instant case, but as a result of the death of the sole respondent, and, further, that, in that case, the order, declaring the abatement, or the declaration of abatement was made when, at least, one of the parties was alive. In the present case, Mr. Banerjee argues, the declaration by Banerjee J. was made at a time, when both the appellant and the respondent was dead and would thus,--on that ground alone and apart from anything else,--be wholly ineffective in law, at least, for purposes of limitation.

4. I am unable to give effect to the above contention or distinction. The decision cited lays down a broad proposition on principle and, if the position be otherwise, the situation would be anomalous and somewhat absurd and would open the door to fraud. Indeed, the discussion, made by their Lordships in the said case cited, would make it clear that any other view would have led to injustice and absurdity. As to the distinction, made on the footing that the said case cited was one, where the abatement had taken place as a result of the death of the sole respondent, it will be enough to refer to an earlier decision of the Allahabad High Court, reported in Muhammad Razi v. Karbalai Bibi, (1910) ILR 32 All 136 which was a case of abatement on account of the death of the sole appellant, and the other similar cases, which have followed the same, e.g., Murlidhar v. Mahabir Singh : AIR1941All371 and Kunjithapatham Pillai v. Saraswathi Ammal, AIR 1941 Mad 671. I respectfully agree with the said decisions, which cover the instant case on this point.

5. As to the other point that the Court's order declaring the abatement, or the Court's declaration in that behalf, if made at a time, when none of the parties are alive, would have no effect in law--at least, so far as limitation is concerned,--it will be enough to say that it will be no sound distinction from the cases cited,--particularly, in view of the Allahabad and the Madras cases, which have been, as aforesaid, accepted by me, as order in question, if it was good, as in the said cases cited, in the case of an appellant, who was dead and on account of whose death the abatement was being declared, it would remain so and would not be rendered bad by reason of the death of the respondent also, as the said order would, obviously, be an order in favour of the respondent, for which his presence would not be necessary. Indeed, I would put my decision on a much broader ground or principle, which would give a proper interpretation to the relevant Article 182(2) of the Indian Limitation Act. That Article, as its terms show, refers to a decree or a final order, disposing of the appeal, as the new starting point of limitation. Notwithstanding some divergence of judicial opinion on the point whether an order declaring or recording an abatement is a decree or not the authorities are practically unanimous in holding that an order, declaring an abatement or recording an abatement, is, at any rate, a final order, disposing of the appeal for purposes of Article 182(2) of the Indian Limitation Act (Vide, in this connection, apart from the cases, already cited, the decision of the Judicial Committee in Hussain Asghar Ali v. Ramditta Mal , explaining their Lordships' earlier decision in Batuk Nath v. Mt. Munni Dei. ILR 36 All 284: (AIR 1914 PC 65) and Abdul Majid v. Jawahir Lal, ILR 36 All 350: (AIR 1914 PC 66) on reasons which would explain also their later decision to the same effect in Sachindra Nath Roy v. Maharaj Bahadur Singh, ILR 49 Cal 203: AIR 1922 PC 187--these being the three cases which are often cited as authorities to the contrary--and approving the decision of this Court in : AIR1927Cal760 , Supra: see also Ajudhia Prasad v. U. P. Government, AIR 1947 All 390, and particularly, Alyappan Pillai v. Kesavan AIR 1953 Trav-Co 545, and Gyaniram v. Gangabai : AIR1957MP85 , where the point has been elaborately and exhaustively dealt with on sound and cogent reasonings I see no reason to take a different view in the matter, as I am fully convinced that is the proper interpretation of the above Article and is well supported on principle.

6. On the above ground, I would uphold the decision of the two courts below, overruling the appellants' plea of limitation.

7. I may add further that, in the instant cases, in the above second appeal, there was an order of interim stay, obtained at an earlier stage of the same. The record does not disclose that that stay order was ever vacated prior, at least, to the order, made by Banerjee J., declaring the appeal to have abated. That is the earliest point of time, when the above stay order may be held to have spent itself or lost its force, and, for that purpose, at least, the above order of Banerjee, J. had its necessity and utility. Any other view would smack of impracticality and would be unjust and unreasonable and would tend to create unnecessary complications and I find no compelling reason for accepting the same. In these circumstances, the decree-holder or his representative would also be entitled to the benefit of Section 15 of the Indian Limitation Act in the matter of calculation or computation of the period of limitation for the execution in the court below. From that point of view, also, the present execution would be well within time. The appellants' objection, therefore, on the ground of limitation must be held to have been rightly overruled by the two courts below.

8. On the other question, the learned Subordinate Judge has categorically stated that the appellants did not place anything on the record to show that there was any one else interested in the disputed property or in the decree under execution except the respondent. In such circumstances, the appellants' objection that the respondent alone was not entitled to execute the decree cannot be sustained. As to the further objection that this decree was not expressly mentioned in the assets of the Administration proceedings, on the basis of which the respondent claims title or his status to execute the same, it will be enough to say that the property concerned was actually shown in the said assets and, if that is so, the benefits of a decree for eviction in respect of that property,--such benefits, including also the benefit of the decree for costs involved therein,--would certainly be available to the respondent. In this view, I am inclined to hold that the second objection of the appellants also to the present execution was rightly overruled by the two courts below.

9. In the premises, none of the points, urged in support of this appeal, can be accepted and this appeal must fail.

10. As, however, it will mean the ousting of the appellants from the disputed premises, which was occupied by them and their predecessor for a long time, and as their said predecessor, who was the original judgment-debtor died during the pendency of the above second appeal, leaving the appellants (his widow and daughter), I am inclined to give them a reasonable time for vacating the disputed premises and only, in case of any default on the appellants part, as mentioned hereinafter, would the decree-holder (respondent) have occasion and the right to proceed further with the present execution. Considering the circumstances of this case, I would give the appellants time till the end of June, 1966, to quit and vacate the disputed premises, provided, of course, that they go on depositing, in the executing court, to the credit of the decree-holder respondent, a sum of Rs. 8 (Rupees eight) per month, month by month, regularly, according to the English calendar, within the 15th of the next succeeding of any two of such deposits, the decree-holder respondent will be entitled to proceed with the execution of the decree in question and the above provision for virtual stay of operation of the said decree would automatically and immediately lapse.

11. Subject as above, this appeal fails andit is dismissed. There will, however; be no orderfor costs in this Court.


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