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Gopal Chandra Naskar Vs. Hiranya Prova Moulick and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata High Court
Decided On
Case NumberC.R. No. 439 of 1979
Judge
Reported inAIR1981Cal338,85CWN949
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 22, Rules 3, 4, 6 and 12; ;Limitation Act, 1963 - Section 31 - Schedule - Article 136
AppellantGopal Chandra Naskar
RespondentHiranya Prova Moulick and ors.
Appellant AdvocateTarak Nath Roy and ;Susil Kumar Sikdar, Advs.
Respondent AdvocateAsutosh Ganguly and ;Anath Nath Mondal, Advs. for Opposite Parties Nos. 1-12
Cases ReferredMulraj v. Murti
Excerpt:
- .....j. 1. when the execution proceedings were pending, the applicants, who are heirs of the judgment-debtors, filed a misc. case under section 47 of the civil p. c. the objection was twofold. it was alleged that previously the execution case was dismissed for default. no prayer was made by the decree-holders to vacate that order or to restore the execution case to file. the court suo motu vacated the order and restored the execution case to its original number. so an illegal order was passed. secondly, the judgment-debtor died on the 21st january, 1966. whereas the application for substitution was filed by the decree-holders on the 15th may, 1978. so the allegation was that the execution case became time-barred. the learned subordinate judge rejected both the contentions. hence this.....
Judgment:
ORDER

B.N. Maitra, J.

1. When the execution proceedings were pending, the applicants, who are heirs of the judgment-debtors, filed a Misc. Case under Section 47 of the Civil P. C. The objection was twofold. It was alleged that previously the execution case was dismissed for default. No prayer was made by the decree-holders to vacate that order or to restore the execution case to file. The Court suo motu vacated the order and restored the execution case to its original number. So an illegal order was passed. Secondly, the judgment-debtor died on the 21st January, 1966. whereas the application for substitution was filed by the decree-holders on the 15th May, 1978. So the allegation was that the execution case became time-barred. The learned Subordinate Judge rejected both the contentions. Hence this revisional application.

2. In this Court also those two objections have been pressed. It has been first stated that the order-sheet shows that on the 2nd September, 1967. decree-holders were directed to show cause why the execution case would not be struck off because no steps had been taken. So the case was fixed on the 20th Sep., 1967. for orders. On that date the decree-holders took no steps or showed no cause. So the execution case was struck off. It has been contended that since the execution case was struck off, it was the duty of the decree-holders to file an application under Section 151 of the Civil P. C. The well-known case of Mulraj v. Murti in : [1967]3SCR84 has been cited. Secondly, it has been stated that the judgment-debtor died on the 21st January, 1466. But the application for substitution was put in as late as the 15th May, 1978. Reference has been made to the Patna decision, reported in (1921) 62 Ind Cas 52, to show that the application for substitution has to be submitted within a reasonable time. Where the judgment-debtor dies, the decree-holder should get at least six months within which to bring the legal heirs on record, on the analogy of Article 177 of the Schedule I of the Limitation Act of 1908. Reference has also been made to the well-known Special Beach decision of Asmat Ali v. Mujahar Ali in (1948) 52 Cal WN 64 : (AIR 1948 Cal 48) to show that since there is no period of limitation within which a non-notified co-sharer of a holding is to file an application for pre-emption under Section 26-F of the Bengal Tenancy Act, such application has to be filed within 3 years. But in this case the application for substitution was filed more than 3 years after the judgment-debtor died. Reference has also been made to the case of Kerala S. E. Board in : [1977]1SCR996 to show that Article 137 of the Limitation Act of 1963 applies to any petition or application filed 'under any Act'. Since the application for substitution was not filed within 3 years of the judgment-debtor's death, the Court will have no hesitation in stating that when the application for substitution was filed on the 15th May, 1978, the execution case became time-barred.

3. The learned Advocate appearing on behalf of the opposite parties has referred to Article 136 of the new Limitation Act and stated that the period of limitation is 12 years.

4. So the first question arises, whether the Court acted illegally in vacating the order by which the execution case had been struck off. In the case of Ali Mondal v. Kazi Golam, reported in : AIR1955Cal526 , it has been stated that the Court can correct its own mistake. In that case the note in the daily cause list was not specific or clear and so the judgment-debtor could not take suitable steps. In view of such vague entry in the cause list, the trial Court did not allow the judgment-debtor to be prejudiced in any way by an omission made on the part of the Court. The order of the Munsif dismissing the case for non-prosecution was held to be the direct result of a mistake made by some officer of the Court and so the Court could grant relief to the judgment-debtor and correct its mistake under the provisions of Section 151 of the Civil P. C. In the Bench case of Annapurna v. Sabita Guha in : AIR1979Cal338 , a Bench of our Court has staled that none should suffer on account of the default of the Court. Where the default is of the Court, the proper provision to apply is that of Section 151 of the Code. In such a case an application under Section 151 is even not necessary. The Court should in such circumstances out of its own inherent power rectify the defect as soon as it is brought to its notice and no question of limitation arises in such a case. If a litigant is made to suffer on account of the default of the Court, the Court will not be justified in refusing relief on a technical ground.

5. Here the learned Subordinate Judge has pointed out that the execution case was dismissed for default in ignorance of the facts of this case. As soon as that mistake was brought to the Court's notice, the Court acted suo motu and vacated that order. Such order was correctly passed because none should be prejudiced by a mistake made by the Court. Hence the submissions made on behalf of the petitioner on the first ground cannot be accepted.

6. Now the question arises, whether the execution case became time-barred. The provisions of Rule 12 of Order 22 of the Code are clear for it says that nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order. Those Rules specify the time within which such applications have to be filed. But Rule 12 engrafts an exception and says that the period of limitation does not apply. This view was taken by P. N. Mookerjee, J., in the well-known case of Shanti Devi v. Khandubala, reported in : AIR1961Cal336 (FB). This decision has been referred to by both the sides. P. N. Mookerjee, J. stated that where the judgment-debtor dies in course of the execution proceedings, in view of the express terms of Order 22, Rule 12, the abatement provisions contained in Rules 3 and 4 do not apply and the execution case would not end or would not be deemed to have come to an end by reason of such death.

7. A reference to Article 136 of the new Limitation Act is not relevant because the execution case was not started after the new Limitation Act came into force from the 1st Jan., 1964. The decree was passed on the 19th Jan., 1955, and the execution case was commenced on the 22nd Feb., 1955. Since the execution case was pending all along, the case is covered by the provisions of Clause (b) of Section 31 of the new Limitation Act and such execution proceeding, which was pending when the new Limitation Act came into force, would not be affected by the provisions of the new Act.

8. It appears that after the decree was put into execution. Title Appeal No. 890 of 1959 was filed. That appeal was dismissed on the 31st August, 1961. Then Second Appeal No. 93 of 1963 was filed. In the usual way stay order was passed regarding the execution case. Eventually the second appeal was dismissed on the 4th May, 1970. So throughout that period the execution case remained stayed till the 14th May, 1970, when the second appeal was dismissed.

9. At once the aforesaid observations made by P. N. Mookerjee, J., in the Full Bench case of Shanti Devi v. Khandubala : AIR1961Cal336 (supra) come into play and there is no question of abatement of the execution case. In the aforesaid case of Mulraj v. Murti : [1967]3SCR84 (supra) a sale was held. It has been decided that if the property is sold before the order of stay is communicated, the order of sale is not void or a nullity. That case has no application to the facts of this case.

10. The case of Kerala S. E. Board : [1977]1SCR996 (supra) will not apply because no petition has been filed 'under any Act'. It is, therefore, held that since there was no abatement of the execution case, there is no question of limitation. The contention put forward on behalf of the petitioner on this score is not accepted.

11. The Rule is, therefore, discharged without any order as to costs.


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