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Sunderlal and Sons Vs. Yagendra Nath Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata High Court
Decided On
Case NumberSuit No. 1128 of 1962
Judge
Reported inAIR1976Cal471
ActsLimitation Act, 1963 - Section 12 - Schedule - Article 136; ;Original Side Rules - Rule 10; ;Partnership Act, 1932 - Section 69; ;Code of Civil Procedure (CPC) , 1908 - Section 47
AppellantSunderlal and Sons
RespondentYagendra Nath Singh and anr.
DispositionApplication dismissed
Cases ReferredAnisminic Ltd. v. Foreign Compensation Commission
Excerpt:
- .....application for execution was that the firm which was seeking execution being not a registered firm execution could not be directed. that the application is by a firm is apparent from the petition. from the application and the decree and the cause papers it does not appear that the firm is a registered one. a point therefore was taken that the firm wag not registered. in answer to this contention a document purported to be a certified copy of registration of the firm was produced. the said document doesnot indicate that this firm of sunderlal and sons was itself registered as such. it is true that in respect of the firm santi swarup gupta the address of sunderlal and sons at 7/1a, clive row, calcutta, is indicated as the address but that does not indicate that this applicant firm is.....
Judgment:
ORDER

Sabyasachi Mukharji, J.

1. This is an application for execution. The decree was passed on 18th September, 1962. The decree-holder applied for certified copy on the 15th September, 1962. He obtained the said certified copy on the 15th March, 1964. The application for execution was made on the 10th June, 1975. The question, is, whether the said decree can be executed now. In this application two contentions were urged it was submitted, firstly, that the claim for execution had become barred by lapse of time. It was, secondly, submitted that the execution being by an unregistered firm, such execution was not permissible. So far as the first question of limitation is concerned the relevant Article is Article 136 of the Limitation Act, 1963. The said Article provides as follows:

'136.For the executionof any decree (other than a decree granting a mandatory injunction) of orderof any Civil Court.

Twelve YearsWhen the decree ororder becomes enforceable or where the decree or any subsequent order directsany payment of money or the delivery of any property to be made at a certaindate or at recurring periods, when default in making the payment or deliveryin respect of which execution is sought takes place;

Provided that anapplication for the enforcement or execution of a decree granting a prepetualinjunction shall not be subject to any period of limitation.'

In this connection reference may be also made to Article 135 of the Limitation Act which is to the following effect:

'For the enforcement of a decree granting a mandatory injunction

Three YearsThe date of the decree or where a date is fixed for performance such date.'

2. Contention on behalf of the decree-holder is that the time taken for obtaining certified copy of the decree should be excluded. It was contended that in view of the provisions of Rule 10 of Chapter 17 of the Rules of the Original Side of this Court a decree could not be put into execution without obtaining a certified copy of the decree. Therefore, it was submitted that the decree did not become enforceable until after the certified copy had been obtained. In the premises, it was urged that the time taken for obtaining the certified copy was the time to make the decree enforceable and until that time the decree not being enforceable time would not run. The expression 'right to enforce the decree' came up for consideration by a Division Bench of this court in the case of Lala Baijnath Prosad v. Narsingdas Guzrati, : AIR1958Cal1 in the context of the provisions of Article 183 of the Limitation Act, 1908. The Division Bench observed that Article 183 spoke of 'a present right to enforce the decree'. It did not speak of a right under the decree but of the right to enforce it. In other words, it did not speak of the rights to the benefit provided for under the decree but of the right to put the decree into service for the purpose of extracting those benefits. The Division Bench came to the conclusion that in a case where the nature of the decree was such that it was immediately executable the starting point of limitation would be the date of passing of the decree and not when the certified copy of the decree as is required by Chapter 17, Rule 10 of the High Court was obtained. Though the language used in the present Article is different, I am of the opinion, that the ratio of the said decision would be applicable in the instant case. The legislative intent on this aspect is manifest by the fact that the legislature has chosen not to exclude the period of time taken for obtaining the certified copy for the purpose of execution under Section 12 of the Limitation Act, in the face of such specific exclusion for certain other specified purposes in the different categories of exclusion, to exclude the time for obtaining certified copy for execution proceeding would be, in my opinion, going contrary to the expressed legislative intention. Section 12 of the Limitation Act does not permit exclusion of this period. On the contrary, it suggests that this period should not be excluded. Thelanguage of Article 136 of the Limitation Act also does not warrant exclusion of this period. This question, further, is concluded by the judgment of the learned single Judge of this Court in the case of Biswapati Dey v. Kensington Stores, : AIR1972Cal172 . Counsel for the decree-holder, however, drew my attention to the observations of the Supreme Court in the case of Sm. Saila Bala Dassi v. Nirmala Sundari Dassi, : [1958]1SCR1287 . There the Supreme Court observed referring to Chapter 16, Rule 27 of the Original Side Rules that the effect of the provision was that until the decree was drawn up as mentioned thereunder no certified copy would be issued to the party and without a certified copy no execution proceeding could be taken. Relying on the aforesaid observation counsel submitted that as no execution proceeding can be taken the decree would not become executable until after certified copy was obtained. In my opinion, this contention is not valid. The aforesaid observation of the Supreme Court was made entirely in a different context, namely, the procedure for execution. It will become executable the moment the decree is passed and as such I am unable to accept the aforesaid observations of the Supreme Court in support of the conten-(ion urged on behalf of the decree-holder. Reliance similarly was placed on a Bench decision of this Court in the case of Satyendra Nath Bose v. Bibhuti Bhusan Ehar, : AIR1963Cal104 where the Division Bench observed that certified copy was necessary for proper execution of the decree. That decision, in my opinion, cannot be availe'd of by the decree-holder in aid of his contention that until certified copy was obtained, the decree did not become executable in terms of Article 136 of the Limitation Act. In the aforesaid view of the matter, the first contention in opposition to this application, therefore, must be accepted.

3. The second point in opposition to this application for execution was that the firm which was seeking execution being not a registered firm execution could not be directed. That the application is by a firm is apparent from the petition. From the application and the decree and the cause papers it does not appear that the firm is a registered one. A point therefore was taken that the firm wag not registered. In answer to this contention a document purported to be a certified copy of registration of the firm was produced. The said document doesnot indicate that this firm of Sunderlal and Sons was itself registered as such. It is true that in respect of the firm Santi Swarup Gupta the address of Sunderlal and Sons at 7/1A, Clive Row, Calcutta, is indicated as the address but that does not indicate that this applicant firm is registered under the Partnership Act. In the aforesaid view of the matter I must proceed on the basis that the firm is unregistered. If that is so, the question is whether such an unregistered firm is entitled to maintain this application for execution. On this context counsel on behalf of the respondent drew my attention to the provisions of Section 69 of the Partnership Act. The said provisions provide as follows:--

'69. Effect of non-registration.

(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.

(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm.

(3) The provisions of Sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect-

(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or

(b) the powers of an official assignee, receiver or Court under the Presidency Towns Insolvency Act, 1909, or the Provincial Insolvency Act, 1920, to realise the property of an insolvent partner.'

4. In this case the decree has been passed. If the decree is a nullity then of course this point can be taken. But the question is whether a decree passed without this point having been taken is nullity or not. In view of the language of the section, in my opinion, a plaint filed by an unregistered firm would not be a plaint at all. If that be so, all proceedings thereunder Will be proceedings without jurisdiction. Support for this propo-sition can be had from the observations of the Division Bench of Madras High Court in the case of K.K.A. Ponnuchami Gounder v. Mathnsami Goundar. AIR 1942 Mad 252. Similar view was taken in the case of A. T. Ponnappa Chcttiar v. Podappa Chettiar, AIR 1945 Mad 146, Shriram Sardarmal Didwani v. Gourishankar, : AIR1961Bom136 , Firm Laduram Sagarrnal v. Jamuna Prosad Chaudhuri, AIR 1939 Pat 239 and Dwijendra Nath Singh v. Govinda Chandra, : AIR1953Cal497 . This contention, in my opinion, can also t;e taken at this stage. Reliance in this connection may be placed on the observations of the Judicial Committee in the case of Surajmall Nagoremull v. Triton Insurance Co. Ltd., 52 Ind App 126 - (AIR 1925 PC 83) and in the case of Gopinath Motilal v. Ramdas, AIR 1936 Cal 133. In the aforesaid view of the matter I am of the opinion that the firm not being registered the decree was a nullity and as such cannot be executed.

5. Counsel for the decree-holder, however, contended that the bar was against suit to enforce a right arising from a contract or conferred by the Partnership Act. Therefore, according to counsel, the execution application was not one which was prohibited by Section 69 of the Partnership Act. In aid of this submission reliance was placed on the observations of the Nagpur High Court in the case of Jamal Usman Kachi v. Firm Umar Haji Karim Shop, AIR 1943 Nag 175. It was held that the words 'other proceeding to enforce a right arising from a contract' should be taken as sui generis of a claim to set off. The Nagpur High Court held that Sub-section (3) of Section 69 of the Act had no application to the execution of a decree whether consent decree or decree after contest. This conclusion of Nagpur High Court was not accepted by the Supreme Court in the case of Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd., : [1964]8SCR50 . There the Supreme Court observed that interpretation ejus-dern generis need not always be made when words showing particular classes were followed by general words. Before the general words could be so interpreted there must a genus constituted or a category disclosed with reference to which the general words could and were intended to be restricted. The expression 'claim of set off' in Section 69(3) of the Partnership Act did not disclose a category or a genus. The words 'other proceeding' which followed must, therefore,receive their full meaning, untrammelled by the words a claim of set off'. The latter words neither intended nor could be construed to cut down the generality of the words 'other proceeding'.

6. I am therefore, of the opinion that where execution is in respect of a claim arising out of a suit based on a contract, the prohibition indicated by Section 69 would apply. Furthermore, the fact that in Sub-clause (b) of Sub-section (4) of Section 69 of the Act proceedings in execution or other proceedings incidental to the execution of certain specified suit as indicated in that sub-clause have been excluded and no other proceeding of execution has been excluded, in my opinion, is clearly indicative of the fact that the proceedings in execution which are to enforce rights arising from contracts would be covered by Section 69 of the Indian Partnership Act. In that view of the matter I am unable to accept the contention that execution proceedings are not covered by the prohibition of Section 69 of the Indian Partnership Act. Counsel for the decree-holder contended, further, that prohibition was against the institution of the suit and the prohibition was not against the consideration of the suit by the court. In aid of this submission he relied on the observations of the Patna High Court in the case of Kuldip Thakur v. Sheomangal Prasad Thakur, : AIR1957Pat4 and also on the Bench decision of the Madras High Court in the case of Jalal Mohammad v. Kakka Mohammad, : AIR1972Mad86 . In the view I have taken of the nature of prohibition, with great respect, I am unable to accept this conclusion of the aforesaid two decisions. Jurisdiction as observed by Lord Reid in, the case of Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147, at p. 171 of the report is the entitlement of the tribunal to enter upon the inquiry in question. That entitlement in my opinion can only arise from a competent plaint instituted by a plaintiff. If the plaint was incompetent, there was no plaint. There was no suit. Ex facie and without any dispute there was no valid suit. A decree based on such a patent and indisputable error would be an error of jurisdiction and decree passed on such error would be nullity. If, however, the error depends upon adjudication of disputes, either of fact or law different considerations would apply. After all as the Supreme Court has observed that the question whether there was an error within the jurisdic-tion or an error of jurisdiction depends upon the nature of the error. In view of the express provision and public policy indicated in Section 69 of the Partnership Act in my opinion entertaining a suit in derogation of that mandatory provision would defeat the purpose of the statute and such an error would amount to an error of jurisdiction and a decree passed on such an error would be a nullity. In the aforesaid view of the matter, in my opinion, on this ground also this decree cannot be executed. In the premises, this application must fail. However, in view of the thoroughness with which this application was argued I direct that the parties should pay and bear their own costs. Interim order, if any, is vacated. Certified for counsel.


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