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Zeenutinnessa Begum Vs. Nawab Syed Waris Ali Meerza Saheb Bahadur - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 96 of 1964
Judge
Reported inAIR1965Cal473
ActsLimitation Act, 1908 - Schedule - Article 183; ;Code of Civil Procedure (CPC) , 1908 - Order 21, Rules 2(1), 2(3), 46 and 53
AppellantZeenutinnessa Begum
RespondentNawab Syed Waris Ali Meerza Saheb Bahadur
DispositionAppeal allowed
Cases Referred and Lakhi Narain v. Felamani Dasi
Excerpt:
- .....460/- payable by the defendant to the plaintiff is still payable for some time to the plaintiff decree holder in suit no. 307 of 1958 (mathur singh v. begum zenutunnessa) of this hon'ble court......' 2. the first point on which the learned judge held against the appellant it that the application for execution was barred by limitation. the relevant provision in the limitation act is art. 183 of the indian limitation act 1908. it is not disputed that the period of limitation is 12 years from when a present right to enforce the decree arises, but where some part of the principal money secured thereby or some interest on such money has been paid, the period of 12 years shall be computed from the date of such payment. according to the learned judge, the payment set out in column 5 of the.....
Judgment:

Sinha, J.

1. This is an appeal against an order, of Ray, J. dated the 6tb March. 1964 whereby he dismissed an application made by the appellant for execution of a decree obtained by her against the respondent, dated 6th December. 1932. The facts are briefly as follows; Suit No. 1599 of 1932 (Zeenutennessa Begum v. Nawab Syed Waris Ali Meerza Saheb Bahadur) was instituted in 1932 for realisation of Rs. 1,00,000/-, being the deferred dower claimed by the plaintiff from the defendant, with interest and costs. On the 6th December, 1932 a decree was passed in the said suit in favour of the plaintiff for the sum of Rs. 1,04,000/- with interest thereon at 6 p.c. per annum and costs. It is in execution of this decree that an application was made by the Appellant for execution by tabular statement on the 26th November 1968 and notice was issued to the respondent on 3rd December, 1963. A copy of the tabular statement appears atpages 1 to 7 of the Paper Book. In column 6 it has been mentioned that on or about 10th July, 1983 on the plaintiff's application, a warrant of arrest of the defendant was issued but the same was not executed. On or about 21st June, 1940 on the application of the plaintiff, a warrant of arrest of the defendant was issued but the same was not executed. On or about 9th August, 1961 on the application of the plaintiff, Notice under Rule 22(1) (a) of Order XXI of the Code of Civil Procedure was issued but the application was ultimately abandoned by the plaintiff. In column 5 it has been stated that the defendant has from time to time paid on account of interest Rs. 450/-per month up to July 1961 on aggregate sum of Rs. 1,54,850/- and the plaintiff has also received from the Secretary of State for the Government of India through the Government of West Bengal a sum of Rs. 13,000/- in part payment of the decretal amount. It is further stated that the defendant made the last payment on 11th August 1961. How this payment of Rs. 450/- per month came to be paid has been explained in paragraph 3 of the affidavit affirmed by the appellant dated 30th November, 1963, which was filed in support of the tabular statement. It is stated therein that the decree was passed on the 6th December, 1932. On or about 10th July, 1933 an application for execution was made. It says that after this application was made the defendant approached the appellant and persuaded her to accept the sum of Rs 450/- per month on account of settled interest on the decretal amount which calculated at 6 per cent per annum came up to Rs. 520/- per month. The appellant agreed to accept the said sum on account and in part payment of the interest under the said decree. In March, 1936 a sum of Rs. 13,000/- was paid. In the affidavit-in-opposition filed by the respondent, in answer to the said affidavit of the appellant, the respondent says as follows

'In 1933, the plaintiff attempted to execute the said decree against the defendant. The plaintiff knew that it was not possible for the defendant to pay to her the said decretal claim of Rs. 1,04,000/-. She approached the defendant in 1933 and if was arranged that the defendant would pay to her Rs. 450/- per month from January 1933 as settled interest on the plaintiff's decretal claim and that the defendant would also pay to her some money from time to time in part satisfaction of the principal amount of the decree as and when convenient to the defendant; Pursuant to such agreement, the defendant all along paid Rs 450/ per month to the plaintiff since January 1933.... . the defendant paid to the plaintiff by way of settled interest as aforesaid at Rs. 450/- per mouth from January 1933 to July 1961 aggregating to Rs. 1,54,350/-. The said monthly payment made by the defendant were duly paid from time to time to the plaintiff and/or her several attaching creditors under decree and orders obtained by such creditors against the plaintiff. A monthly sum of Rs. 200/- out of the said agreed monthly sum of Rs. 460/- payable by the defendant to the plaintiff is still payable for some time to the plaintiff decree holder in suit No. 307 of 1958 (Mathur Singh v. Begum Zenutunnessa) of this Hon'ble Court......'

2. The first point on which the learned judge held against the appellant it that the application for execution was barred by limitation. The relevant provision in the Limitation Act is Art. 183 of the Indian Limitation Act 1908. It is not disputed that the period of limitation is 12 years from when a present right to enforce the decree arises, but where some part of the principal money secured thereby or some interest on such money has been paid, the period of 12 years shall be computed from the date of such payment. According to the learned Judge, the payment set out in column 5 of the tabular statement cannot be looked into because they were not certified in accordance with the provisions of Order 21 Rule 2 of the Code of Civil Procedure. In my opinion, the learned Judge has fallen into an error on this point. The relevant provision of Order 21 Rule 2 runs as follows:

'1. Where any money payable under a decree of any kind is paid out of court or the decree is otherwise discharged in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the court whose duty it is to execute the decree and the court shall record the same accordingly.

2. The judgment-debtor also may inform the court of such payment or adjustment and apply to the court to issue a notice to the decree-holder to show cause on a day to be fixed by the court, why such payments or adjustments should not be recorded as certified and if, after service of such notice the decree holder fails to show cause why the payment or adjustment should not be recorded as certified the court shall record the same accordingly.

3. A payment or adjustment which has not been certified or recorded as aforesaid, shall not be recognised by any court executing the decree.'

3. It has been pointed out by the Privy Council in Prakash Singh v. Allahabad Bank Ltd. 56 Ind App 30 : (AIR 1929 PC 19) that there is a distinction between a decree-holder certifying a payment to court under Sub-rule (1), and a judgment-debtor doing the same under Sub-rule (2). Under Sub-rule (1), the decree-holder has merely to inform the court about payment. No application is necessary and upon such information being given, the court is bound to record the payment. There is no limitation for the decree-holder giving such information to court. In Eysuffzemen Sarkar v. Sanchia Lal, ILR 43 Cal 207: (AIR 1916 Cal 451) it has been pointed out that the decree holder need not make a formal application, but may simply inform the court of the payment in his application for execution of the decree. No particular form of recording the certification has been prescribed. The learned Judge below has mentioned a decision of Mukharji, J., Bireswar Mukherji v. Ambika Charan Bhattacharjee ILR 4S Cal 630 :(AIR 1918 Cal 977) where it appears to have been held that although the decree-holder informed the executing court of payments, still the bar of limitation applied because he had not got them certified in time. This decision was recalled by Mukherji J. himself as will appear from Bali Mahammad Sahi v. Ajanmai 35 Cal L.J. 71 at p. 74 (AIR 1922 Cal 30 at p. 32). In any event, regard being had to the Privy Council decision mentioned above, it cannot be considered as good law. In my own decision Humayun Properties Ltd. v. Ferrazzinis (Private) Ltd. : AIR1963Cal473 I have made the legal position clear. A payment of money made under the decree or an adjustment, casts a duty upon the decree-holder to certify such payment or adjustment to the court, whose ditty it is to execute the decree. There is no particular form for such certification and there is no period of limitation for doing so. The decree-holder can give the information to the court at any time, and this need not be on notice to the judgment-debtor and the court automatically record the information, as a mere ministerial act. Mr. Mitter appearing on behalf of the respondent has not seriously challenged this proposition of law. He has, however, taken too points which are as follows:

The first point taken is that under Sub-rule (31 of Order 21 Rule 2, even where the decree-holder informs the court of a payment; it should be recorded and without such a record the court cannot take any notice of the payment. He says that in this particular case there has been no such record. There is no substance in this point because, as already mentioned above, the recording of a payment which has been certified by the decree holder is a ministerial act and need not be done in any particular form. The very fact that the court has accepted the application for execution and issued notice is sufficient 'recording', so as to satisfy the provisions of Sub-rule (3) of Order 21 Rule 2. See ILR 43 Cal. 207 at p. 210 :(A1R 1916 Cal. 451 at pp. 451-452) and Lakhi Narain v. Felamani Dasi, AIR 1915 Cal 235 (2). The next point taken by Mr. Mitter is that in the tabular statement in the instant case, the dates of payments are not given in column 5. Therefore, it has not been shown that the execution of the decree was saved by payment. The only date of payment which has been specifically alleged is 11th August, 1961. The last order which was made previous to it was dated 21st June 1940, Mr. Mitter argues that the payment on 11th August, 1961 is therefore not within the period of limitation. In my opinion, there is no substance in this point for the following reasons: Under sub-Rule (1) of Order 21 Rule 2 the decree-holder has to certify to the court of the payments. There is nothing specifically stated there about certifying the dates of such payment. These dates when disputed can be ascertained by the court from the materials before it. The application for execution consists, not only of the tabular statement but also the affidavits used in connection with it. From the contents of such affidavits mentioned above, it is quite clear that after the application for execution made in 1933 there was an arrangement for payment of Rs. 450/- per month from January 1933. According to the affidavit of the respondent himself, these sums were 'duly' paid month by month until July 1961. Hence it is clear that at no time was the execution barred by limitation. Actually, Mr. Mitter has not pressed any other point, but he has stated that he is not in a position to abandon any of the points, which makes it necessary for me to deal with the other points dealt with by the learned Judge in the judgment under appeal. It was argued in the court below that the payment of Rs. 450/- per month was not under the decree but was a separate arrangement between the parties andtherefore the payments did not save limitation.It was urged that if the admission of the respondent in his affidavit was to be relied on, it shouldbe relied on in its entirety. I am unable toappreciate this argument which the learned Judgeseems to have accepted. The sum of Rs. 450/-was paid as settled interest, but it was paymentof interest which was payable under the decree.If the decree did not grant interest and the partiesagreed to pay interest notwithstanding the factthat the decree did not create such a liability, thatwould be a different matter. But the facts set outabove make it quite clear that the payments werein respect of interest which was granted under thedecree. Under the circumstances, the argument iswithout substance and should have been rejected.The next point which was accepted by the learnedJudge was that some creditors of the decree-holderhad attached the decree as stated in paragraph 9of the affidavit-in-opposition and, therefore, theplaintiff was not entitled to execute the decree.In paragraph 9 of the affidavit-in-opposition it hasbeen stated that the monthly payments or portionsthereof were paid to several attaching creditors.No particulars are given excepting one, namely inSuit No. 307 of 1958. Mr. Deb on behalf of theappellant says that if there are any attachments then the execution of the decree would besubject to such attachment and the judgment-debtor will get credit for payments made under it.This is no ground for dismissing the applicationfor execution. In my opinion, this is the correctposition. The last point which was decidedagainst the appellant is as follows: In the tabularstatement, it is stated that a sum of Rs. 1,00,000/-standing to the credit of the respondent which theState Bank of India, should be attached. This isa part of the sum of Rs. 6,00,000/- which waspaid to the Nawab Bahadur under the Murshidabad Estate (Trust) Act, 1963 (W.B. Act II of1963), read with the Murshidabad Estate (Trust)(Amendments) Ordinance 1963 (W.B. OrdinanceNo. III of 1963). The learned Judge states thatin the preamble of the Act II of 1963 mentionedabove, as amended by the 1963 Ordinance, it wasstated that the object of the enactment was for'making better and more suitable provisionsfor the Nawab Bahadur of Murshidabadand members of his family.' From this,the learned Judge concludes that the payment of Rs. 6,00,000/- must have been made, notonly for the purpose of the Nawab Bahadur himself but also for other members of the family and,therefore, there could not be attachment of anypart of that sum. To start with, even if this weretrue, the beneficial interest of the Nawab Bahadurhimself could still be the subject matter of attachment. I regret to say however, that the learned,Judge entirely overlooked the fact that the payment of Rs. 6,00,000/- was done under the amended Section 5, the relevant part whereof is asfollows: '5. Application for funds of the estate and income from trust properties (1) The trustee shall pay to the present Nawab Bahadur a lump sum of Rs. 6,00,000/- from the funds of the Murshidabad Estate which come into his hand on the vesting of the trust property in him, in 1933.'

4. There are other provisions for payments to other members of the family. Thus it is clearthat this payment was made to the Nawab Bahadur personally and the other members of the family had nothing to do with it. Obviously, the preamble of the Act cannot control or override its substantive provisions. The conclusion of the learned Judge On this point is therefore, erroneous.

5. The result is that the appeal must be allowed and the judgment and order of the court below should be set aside.

6. A dispute has been raided as to the exact amount for which execution should be levied. According to the tabular statement, the balance due up to November, 1963 is Rs. 1,04,350/- with further interest and costs. The amount stated in the affidavit-in-opposition is higher, as also the amount mentioned in the certificate granted by the Sheriff, a copy whereof is at page 20 of the paper Book. The calculation in the memorandum of the Sheriff is prima facie. wrong. Interest has been calculated on the whole decretal amount up to 23rd December, 1963 although the sum of Rs. 13,000/-was paid in March, 1963. Mr. Deb on behalf of the appellant slates that his client would he quite satisfied if execution is levied for the amount claimed in the tabular statement. The order will therefore be as follows: The application for execution is granted in terms of the prayers made in the tabular statement. The appellant decree holder has. however, agreed that any amount which has been paid by the judgment debtor as a result of any attachment of the decree should he given credit for. The appellant is entitled to the costs of this appeal and the costs of the application in the court below.

7. The respondent is restarined by an injunction from withdrawing the amount lying to the credit of the said respondent in his account with the State Bank of India, Park Street Branch, Calcutta, in respect of which an undertaking had been given, for a period of four weeks from date, to enable the decree holder to levy a fresh attachment.

8. Certified for two Counsel.

Arun K. Mukherjea, J.

9. I agree.


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