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Akshoy Kumar Roy Choudhry Vs. Abdul Kader Khan and anr. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1930Cal329
AppellantAkshoy Kumar Roy Choudhry
RespondentAbdul Kader Khan and anr.
Cases ReferredMadho Ram v. Nihal Singh
Excerpt:
- b.b. ghose, j.1. this is an appeal by the decree-holder against; an order of the learned district judge of khulna dismissing an application for execution preferred by him and reversing the order of the munsiff of bagerhat. the facts o the case are rather complicated and they have been stated elaborately in the judgment of the learned judge. there were various proceedings' between the decree-holder and the judgment-debtor which 1 do not think is necessary to relate for. the purpose of this appeal, as in my judgment this appeal may be disposed of on one of the grounds dealt with by the learned district judge. the facts relevant for understanding that point will only be stated by me. a consent decree was obtained by the appellant as against the respondent on 8th march 1915. the decretal.....
Judgment:

B.B. Ghose, J.

1. This is an appeal by the decree-holder against; an order of the learned District Judge of Khulna dismissing an application for execution preferred by him and reversing the order of the Munsiff of Bagerhat. The facts o the case are rather complicated and they have been stated elaborately in the judgment of the learned Judge. There were various proceedings' between the decree-holder and the judgment-debtor which 1 do not think is necessary to relate for. the purpose of this appeal, as in my judgment this appeal may be disposed of on one of the grounds dealt with by the learned District Judge. The facts relevant for understanding that point will only be stated by me. A consent decree was obtained by the appellant as against the respondent on 8th March 1915. The decretal amount was payable in 12 instalments and there was the usual provision that in default of payment of one instalment the whole amount would be due. The judgment-debtor made payments till 1920, the last payment being on 7th May 1920. It is not necessary to relate for the purposes of this judgment the intermediate proceedings which took place between the parties as regards the decree being made final as the original decree was a decree on a mortgage. On 9th December 1921 an application for execution was made by the appellant. The properties belonging to the judgment-debtor were sold on 23rd February 1922 and a third person became the auction-purchaser at the sale. The judgment-debtor applied for setting aside the sale and it was set. aside on 5th July 1923. The auction-purchaser preferred an appeal against that order which was confirmed by the appellate Court on 29th March 1924. The present application out of which this appeal arises was made for execution by the appellant on 15h December 1926. The learned Judge has held that this application was barred on these facts. It is only necessary to state that the learned District Judge held that the application was unsustainable on other points; but it is not necessary for me to state them now as, in my view, the case can be disposed of on this short point.

2. On behalf of the appellant Mr. Roy Chowdhury has argued that the learned Judge was in error in holding that the application was barred by limitation and in support of his contention he relies mainly upon two cases which are relevant to the point, the first of them being the case of Sheikh Kamaruddin Ahmad v. Jawahir Lal [1905] 27 All. 334. I do not think that upon the facts of that case the principle laid down there can be said to apply to the present case. What happened in that case was this: The decree-holder applied for execution of his decree and notwithstanding the objections by the judgment-debtor, an order was made on 18th December 1888, that the execution should proceed. Certain orders were made as regards the execution which, according, to the procedure in the North-Western Provinces, could be carried on only by the Collector. While those execution proceedings were pending and at an early stage of their progress, on 15th February 1889 an appeal was brought, in the High Court against the original, order of 18th December 1888 under which the execution proceeded. The High Court on 7th January 1890 allowed that appeal on grounds which is unnecessary to relate. On a further appeal to Her late Majesty in Council that decision of the High Court was reversed, the judgment of the Board being delivered on 24th November 1894, and embodied in an order in Council of 12th December 1894. Then an application was made by the decree-holder to proceed with the execution of his decree on 23rd November 1897, and the application asked by its terms that the execution case instituted in August 1888 which was sent to the Collector's Court on 23rd December 1888 may be revived. The objection of the judgment-debtor was that the application was barred by limitation. The High Court held that it was not a fresh application but one praying the Court to revive the suspended order and permit it to be pushed through to completion. The judgment-debtor appealed to the Privy Council and their Lordships hold that the application was not barred. Their Lordships observed as follows:

If the appeal to the High Court against those proceedings and the judgment of that Court, and the appeal to Her Majesty in Council rendered necessary by that judgment, had not intervened to interrupt the course of the execution, there was nothing in the terms of the order to preclude the decree-holder from coming again to the Court, satisfying the conditions indicated in the order, and obtaining the transmission of the case to the Collector's Court.

3. What their Lordships said referred to the fact that on appeal by the judgment-debtor the High Court held that the decree could not be executed. When that order stood, the decree-holder could take no steps in execution and it was only by an appeal to the Privy Council which reversed the decision of the High Court that the decree-holder was able to proceed with the execution and, therefore, under these circumstances, their Lordships observed that these orders had intervened to interrupt the course of the execution. In the present case, there is nothing to interrupt the course of the execution after the sale was set aside on 5th July 1923. It is argued by the learned advocate that because the auction-purchaser appealed against the order of 5th July, the whole thing was let loose and the execution proceedings were continuing and, therefore, the decree-holder was prevented from making the application. I do not think that that argument is sound. Rule 5, Order 41, Civil P.C., provides that an appeal shall not operate as a stay of proceedings and an appeal by a third party cannot, in my opinion, prevent the decree-holder from making a fresh application for execution, of his decree. The learned advocate next referred to the case of Jira Bibi v. Majiruddin A.I.R. 1921 Cal. 594. There, a sale was held on the application of the decree-holder on 3rd May 1909 when the decree-holder himself became the purchaser. The usual application by the judgment-debtor for setting aside the sale was made and the sale was set aside on 14th February 1911. The learned Judges said that the position then was that no proceedings in execution could be taken so-long as the sale was in operation from 3rd May 1909 to 14th February 1911. There cannot be any question that when, the sale was in operation in execution of the decree of the decree-holder, he cannot prefer a fresh application for execution of his decree.

4. It is only when the sale is set aside and nothing to prevent the execution of the decree that the decree-holder can take fresh proceedings. In that case the learned Judges cited a large number of cases in support of the proposition they laid down and there cannot be any question with regard to the correctness of the proposition. The whole difficulty is with regard to the contention that when there is an appeal against an order setting aside the sale by an auction-purchaser, the decree-holder should be considered to be prevented from making a fresh application for execution of his decree. There is no provision in the Limitation Act which would extend the period of limitation in such a case. The general principles of suspension of limitation might be applied in cases where a plaintiff or a decree-holder is prevented under the circumstances from taking action in pursuance of his rights. The principal case as regards suspension of limitation or rather of the cause of action arising after certain previous proceedings had terminated is that of Ranee Surnomoyee v. Shooshee Mokhee-Burmania [1867-69] 12 M.I.A. 244. A case with regard to the right of a decree-holder to apply for execution of the decree accruing several years after the decree was made will be found in Rameshwar Singh v. Home shvar Singh A.I.R. 1921 P.C. 31. But those principles cannot, in my opinion, be applied in the, present case. It is well known and it is conceded that an application for reviving execution proceedings is governed by Article 181, Lim. Act and the time from which the period begins to run is when the right to apply accrues and it it settled that the time runs from the date the right to apply first accrues. As an illustration the case of Madho Ram v. Nihal Singh [1916] 38 All. 21 may be referred to. That was a case in which a mortgagee applied for making a final decree more than three years after the preliminary decree was passed and more than three years after the period allowed to the judgment-debtor to pay the amount of the decree. The right to apply first accrued after the expiry of what is called the 'period of grace.' But the mortgagor preferred an appeal against the preliminary decree and on appeal and a second appeal the preliminary decree was sustained by both the Courts. After the decision of the second appeal the mortgagee applied for making a final decree. The learned Judges held that the application which was governed by Article 181, Lim. Act, was birred by limitation. They observed that limitation should be computed from the time when the right to apply first accrued. It should be noted that the time for payment of the money by the judgment-debtor was not extended by the appellate Court. Under these circumstances, it seems to me that the learned Judge was quite right in holding that the time for reviving the execution proceedings which terminated by the sale being set aside on 5th July 1923, accrued on that date and as the present application was made on 15th December 1926, it was barred being made more than three years after the right to apply accrued. The decree-holder cannot take advantage of the appeal by the auction-purchaser and count the period from the date of the order of the appellate Court affirming the order of the trial Court on 29th March 1923.

5. It is, however, contended on behalf of the appellant that it would be extremely inconvenient to allow the decree-holder to present a fresh application for selling the very mortgaged property which had been sold in the previous execution proceedings during the pendency of the appeal by the auction-purchaser. He argues that if on appeal by the auction-purchaser the order of the trial Court had been set aside, various complications would arise if the decree-holder in the meantime was allowed to sell the property over again and it was purchased by another auction-purchaser. It is true that complications would arise in such a case, because if the order of the trial Court was set aside on appeal, the first auction-purchaser would get the property from the date of his purchase and the second auction-purchaser would get nothing. But that is a matter which I think we need not take into consideration in deciding the question whether the application of the decree-holder was barred by limitation or not. We cannot extend the rule of suspension of limitation by referring to inconveniences which might occur if the decree-holder was permitted to present a fresh application. If the decres-holder had presented an application within the period of limitation from 5th July 1923, the Court might on the application of any interested party stay proceedings. That might have saved any complications which might possibly arise by there being two concurrent proceedings. In this case I do not propose to say anything with regard to the question as to what would have happened if the decree-holder had appealed against the order setting aside the sale on 5th July 1923. In my opinion, there is no reasonable doubt that the decree-holder cannot take advantage of an appeal preferred by the auction-purchaser against that order. The appeal, therefore, fails and must stand dismissed with costs. Hearing fee, three gold mohurs.

S.K. Ghose, J.

6. I agree.


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