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Futteh NaraIn Chowdhry Vs. Chundrabati ChowdhraIn and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1893)ILR20Cal551
AppellantFutteh NaraIn Chowdhry
RespondentChundrabati ChowdhraIn and anr.
Cases ReferredMungul Pershad Dichit v. Grija Kant Lahiri I.L.R.
Excerpt:
limitation act (xv of 1877), schedule ii, article 180 - execution of decree--order of her majesty in council--revivor--civil procedure code (act xiv of 1882), sections 230, 248. - .....itself it is clear that all the applications were in respect of the execution of the privy council decree.2. the judgment-debtors contend, in the first place, that the decree of which execution is sought is not an order of her majesty in council within the meaning of article 180 of the limitation act. mr. advocate-general, who appeared for the appellants, urged that the orders mentioned in article 180 refer to orders made in suits going up to the privy council on appeal from the high court in the exercise of its original civil jurisdiction. he also urged that the decree was barred under the provisions of section 230 of the civil procedure code. and he further contended that, even if the decree of which execution is sought could be regarded as an order of her majesty in council,.....
Judgment:

Ameer Ali, J.

1. We were at first under the impression that the various applications from the 10th February 1883 to September 1888 were in respect of the decree which was made in the High Court on the 28th March 1882, and this impression arose from the translation of the decree-holders' application of the 19th November 1890, which in some places is no doubt ambiguous; but upon a careful perusal of the petition itself it is clear that all the applications were in respect of the execution of the Privy Council decree.

2. The judgment-debtors contend, in the first place, that the decree of which execution is sought is not an Order of Her Majesty in Council within the meaning of Article 180 of the Limitation Act. Mr. Advocate-General, who appeared for the appellants, urged that the orders mentioned in Article 180 refer to orders made in suits going up to the Privy Council on appeal from the High Court in the exercise of its Original Civil jurisdiction. He also urged that the decree was barred under the provisions of Section 230 of the Civil Procedure Code. And he further contended that, even if the decree of which execution is sought could be regarded as an Order of Her Majesty in Council, there was no revivor at anytime within 12 years before the date of the present application, as required by Article 180, and that consequently the decree was barred.

3. It appears to us that the first contention is untenable. Whatever may have been the view previously entertained regarding cases going to the Privy Council from the High Court in the exercise of its Appellate jurisdiction, it is now finally settled by a Full Bench in the case of Luchmun Persad Singh v. Kishun Persad Singh I.L.R. 8 Cal. 218 : 10 C.L.R. 425 that when once an order is made in Council it becomes the paramount decision in the suit. The Full Bench followed the view expressed by their Lordships of the Judicial Committee in the case of Pitts v. La Fontaine L.R. 6 App. Ca. 482, where they said that 'when a decision of this Board has been reported to Her Majesty, and has been sanctioned and embodied in an Order in Council, it becomes the decree or order of the final Court of appeal.' No distinction was made between cases going up to the Privy Council from the High Court in the exercise of its Original Civil jurisdiction and those from its Appellate jurisdiction. We must therefore hold that the decree which is sought to be enforced is the Order in Council.

4. The next question which arises is whether Section 230 of the Civil Procedure Code limits in any way the provisions of Article 180 of the 2nd schedule of the Limitation Act. Section 230 runs thus:

When the holder of a decree desires to enforce it, he shall apply to the Court which passed the decree, or to the officer, if any, appointed in this behalf or if the decree has been sent under the provisions hereinbefore contained to another Court, then to such Court, or to the proper officer thereof. The Court may in its discretion refuse execution at the same time against the person and property of the judgment-debtor.

Where an application to execute a decree for the payment of money, or delivery of other property, has been made under this section, and granted, no subsequent application to execute the same decree shall be granted after the expiration of twelve years from any of the following dates (namely), (a) the date of the decree sought to be enforced or of the decree (if any) on appeal affirming the same, or (6) where the decree or any subsequent order directs any payment of money, or the delivery of any property, to be made at a certain date, the date of the default in making the payment or delivering the property in respect of which the applicant seeks to enforce the decree.

Nothing in this section shall prevent the Court from granting an application for execution of a decree after the expiration of the said term of twelve years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application.

5. Article 180 is as follows:

When a present right to enforce the judgment, decree or order accrues to some person capable of realising the right, provided that when the judgment, decree or order has been revived, or some part of the principal money secured thereby, or some interest on such money has been paid or some acknowledgment of the right thereto has been given in writing, signed by the person liable to pay such principal or interest or his agent, to the person entitled thereto or his agent, the twelve years shall be computed from the date of such revivor, payment or acknowledgment or the latest of such revivors, payments or acknowledgments, as the case may be.

6. Section 230 was introduced for the first time in Act X of 1877. Article 180 is a reproduction of Article 169 of the Limitation Act of 1871, and seems to us to be independent of Section 230. The Bombay and Madras High Courts have, in the cases of Mayabhai Prembhai. v. Tribhuvandas Jagjivandas I.L.R. 6 Bom. 258, and Ganpathi v. Balsundara I.L.R. 7 Mad. 540, expressed the same views, and held that the section in question has no application to decrees made by the High Court in the exercise of its ordinary Original Civil jurisdiction. In Article 180, Orders in Council stand in the same category as decrees of Courts established by Royal Charter in the exercise of such jurisdiction. The reasons upon which the Bombay and Madras High Courts have held Section 230 not to be applicable to decrees of the High Courts, and with which we have no reason to differ, apply mutatis mutandis to the Orders of Her Majesty in Council. Had the Legislature intended to cut down the effect of Article 180 by Section 230, we would have expected some reference to that section in the article itself, as we find in Article 179, or some other indication of such intention. We think that the objection of the judgment-debtors under Section 230 must also be overruled.

7. The only other question which requires consideration is, whether there has been such a revivor of the decree in this case as is required by Article 180. The learned Advocate General contended that the word 'revivor' means a revival of the suit or decree against the representatives of a deceased judgment-debtor.

8. The word has received, however, a judicial interpretation in respect of decrees of the High Court in the exercise of its ordinary Original Civil jurisdiction. In the case of Ashootosh Dutt v. Doorga Churn Chatterjee I.L.R. 6 Cal. 504 : S.C. L.R. 23, White, J., held that an order for execution of a decree made after notice to show cause, has the effect of reviving it within the meaning of Article 180. As pointed out in that case, before Act VIII of 1859 was made applicable to the Chartered Courts, judgment would not issue upon a decree more than a year old without suing out a writ of scire facias against the defendant. The rule as to writs of scire facias was applicable to common law judgments. An equity suit was revived by a bill of revivor. Act VI of 1854, Section 31, introduced a simpler method of reviving a suit on the Equity side of the Court; on the Plea side the practice remained unchanged until the application of Act VIII of 1859 to the Chartered Courts. The provisions of this Act did away with the more cumbrous procedure of former times and introduced a simpler method of reviving a decree or suit on the Original Side of the Court. That method was by proceedings under Sections 215 and 216 of Act VIII of 1859. Section 19 of Act XIV of 1859, the first Limitation Act passed by the Indian Legislature of general application, provides as follows:

No proceeding shall be taken to enforce any judgment, decree, or order of any Court established by Royal Charter, but within twelve years next after a present right to enforce the same shall have accrued to some persons capable of releasing the same, unless in the meantime such judgment, decree, or order shall have been duly revived or some part of the principal money secured by such judgment, decree, or order, or some interest thereon shall have been paid, or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable or his agent, to the person entitled thereto or his agent, and in any such case no proceeding shall be brought to enforce the said judgment, decree, or order, but within twelve years after such revivor, payment, or acknowledgment or the latest of such revivors, payments, or acknowledgments as the case may be; provided that for three years next after the passing of this Act, every judgment, decree, and order which may be in force at the date of the passing of this Act shall be governed by the law now in force, anything therein contained notwithstanding.

9. There is no definition of the word 'revived' anywhere, but, as indicated by White, J. it has to be read in connection with the provisions of Act VIII of 1859. The provisions of Section 19 of Act XIV of 1859 were continued in Act IX of 1871, Article 169, which ran thus:

When a present right to enforce the judgment, decree, or order accrued to some person capable of releasing the right, provided that when the judgment, decree, or order has been revived, or some part of the principal money secured thereby, or some interest on such money has been paid, or some acknowledgment of the right thereto has been given in writing, signed by the person liable to pay such principal or interest or his agent, to the person entitled thereto or his agent, the twelve years shall be computed from the date of such revivor, payment, or acknowledgment, or the latest of such revivors, payments, or acknowledgments, as the case may be.

10. Until 1874 these provisions were confined to decrees of the Chartered High Courts, in the exercise of their Ordinary Civil jurisdiction. There was no period of limitation prescribed for execution of decrees of the Privy Council [see Wise v. Jugobandhoo Baboo 4 W.R. Mis. 10]. By Section 21 of Act VI of 1874 the following words were added to Article 169 of Act IX of 1871: 'or any order of Her Majesty in Council.' The same words appear in Article 180, only instead of 'any order' it is 'an order.' It is clear to us that the term 'revived' must be read in one and the same sense in connection with High Court decrees and Orders in Council, and not distributively as Mr. Woodroffe contends. If we were to confine WHITE, J's., interpretation to Orders in Council made in suits going up to the Judicial Committee from the High Court in the exercise of its ordinary Original Civil jurisdiction, this incongruous result would follow, that whereas such decrees would be subject to twelve years' limitation, there would be no limitation in cases going up from the Appellate Side. Now Section 248 of the present Code is analogous to Section 216 of Act VIII of 1859. And in the present case an order was made, after notice as provided for in that section, for the execution of the decree. We think, therefore, that the present application is not barred under Article 180. Further, it seems to us that the question now raised is res judicata. The vary same contentions were raised on the 20th of December 1887 before the Subordinate Judge which were overruled, and the order was that the decree be executed. As there was no appeal preferred against that order it became conclusive [Mungul Pershad Dichit v. Grija Kant Lahiri I.L.R. 8 Cal. 51].

11. On the whole, we are of opinion that this appeal should be dismissed, and we accordingly dismiss it with costs.

Tottenham, J.

12. I desire to add that, while fully concurring in the opinion expressed in the judgment just delivered, I would dismiss this appeal only for the reason that the objection of the judgment-debtor is res judicata by the judgment of the Subordinate Judge, dated the 20th December 1887.


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