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Harendra Lal Roy Chowdhry Vs. Sham Lal Sen - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal210
AppellantHarendra Lal Roy Chowdhry
RespondentSham Lal Sen
Cases ReferredMungul Pershad Dichit v. Grija Kant Lahiri
Excerpt:
limitation act (xv of 1877), schedule ii, article 179 - step in aid of execution--application for execution of decree against some of the joint judgment-debtors, out of time--realization of a portion of the decretal amount by such execution, effect of, as against other judgment-debtor who was not a party to the execution proceeding--application in accordance with law. - .....for execution which is itself an application made according to law, that is, which is not itself time barred, though made against some only of several persons against whom a decree is passed jointly, shall take effect against all of them. it does not say, however, that not only an application so made, but all orders made upon such application, shall have effect against the judgment-debtors other than those against whom the application was made. now, it is necessary, for the success of the appellant's contention, that not only must the previous application have effect against all the judgment-debtors, but the orders made upon that application must also have a similar effect; for, otherwise, it could not be said that the judgment-debtor no. 4 was precluded from showing that the previous.....
Judgment:

Francis W. Maclean, K.C.I.E., C.J.

1. This is an appeal by the decree-holder from the decision of the Second Subordinate Judge of the 24-Parganas, holding that the decree-holder's application for execution, dated the 21st July 1898, was barred by limitation.

2. The point we have to decide is a short one, and it will only be necessary for me to deal briefly with a few dates and undisputed facts.

3. The suit was one to enforce a mortgage, and there were four defendants to that suit, of whom defendant No. 4, is the present respondent. A final decree was passed on the 8th of December 1890 for a sum of Rs. 18,000 or so. Applications for execution were made from time to time, but it is sufficient for present purposes if we start from the application made on the 7th October 1893 against all the defendants.

5. In my opinion the decree which was passed was a joint decree against all the defendants.

6. On the 17th February 1897, which is more than three years after the date of the application of the 7th October 1893, a further application was made against the defendants Nos. 1 and 2 only, and that application resulted in a substantial sum being recovered by the decree-holder. Defendant No. 4 was not served with notice of, and was not, in anywise, a party to, that application.

7. Then comes the present application of 21st of July 1898 against the defendants Nos. 1, 3 and 4, the latter of whom, as I said before, is the only respondent on this occasion.

8. These being the facts, two questions arise: First, whether the application of the 17th of February 1897 was out of time, and, secondly, if it were out of time, whether it is open to the defendant No. 4 to raise that objection on the present occasion.

9. I entertain no doubt that the application of the 17th of February 1897 was out of time. The last previous application was made on the 7th of October 1893, though an ingenious attempt was made to lead us to presume that having regard to the entry in the order sheet of the 24th February 1894, some application subsequent in point of date to that of October 7th, 1893, must have been made. I am not disposed to take that view. In my opinion the notice referred to in that entry was consequent only upon the application that had been previously made on the 7th October 1893. There is nothing to show that there was any such application as would meet the requirements of Article 179 of the second schedule to the Limitation Act after the 7th October 1893, and I am therefore clearly of opinion that the application which was made on the 17th of February 1897 was out of time.

10. But then it is contended that having regard to the case of Mungul Pershad Dichit v. Grija Kanta Lahiri (1881) I.L.R., 8 Cal., 51: L.R., 8 I.A., 123, it is not open to the present respondent to take that objection, and that as an order was made on the 17th February 1897 against the defendants Nos. 1 and 2, the defendant No. 4 is barred from saying that application was out of time.

11. I am unable to accept that view. To my mind the case in the Privy Council proceeds upon an entirely different footing. In that case, to put it shortly, the parties had been served with the application for execution, and an order on that application, adverse to them, had been made in their presence, by a Court of competent jurisdiction, and the Privy Council held that under these circumstances, although the execution of the decree might have been actually barred by time at the date of the application in question, yet if an order for such execution has been regularly made by a competent Court having jurisdiction to try whether it was barred by time or not, such order, although erroneous, must, if unreversed, be treated as valid. But that case has no-application to the present, where the defendant No. 4 was not a party to the application of the 17th of February 1897 nor a party to the order made upon that application. He knew nothing whatever about it, and it is difficult to see why, upon this, his first opportunity, he should be disentitled to show that application was out of time.

12. Great reliance is placed by the appellant upon the language of the explanation attached to Article 179 of the second schedule of the Limitation Act, which says that where the decree or order has been passed jointly against more persons than one, the application, if made against any one or more of them or against his or their representatives, shall take effect against them all.' That means that the application may take effect against them all, if the application be such an application as is mentioned in the 4th clause of Article 179, that is to say, an application 'made in accordance with law to the proper Court for execution or to take some step in aid of execution.' But the application of the 17th February 1897 was not an application in accordance with law, because it was out of time, and that being so there is nothing, in my judgment, in the language of this explanation to show that a person who was not a party to the application, or to any order made upon it, is prevented from showing that the previous application was out of time. The explanation does not say that any order made on such an application is to be binding on a person who was not a party to the application, The present respondent could not have taken any objection to the application of the 17th February 1897 or to the order made upon it, for he knew nothing about it.

13. I have now dealt with the only two points which have been raised: they both fail, and the appeal must be dismissed with costs.

Banerjee, J.

14. I am of the same opinion. The question for determination in this case is whether the present application, which was made on the 21st July 1898, for execution of the decree obtained by the appellant on the 13th August 1890, is barred by limitation. The Court below has answered that question in the affirmative, and hence the present appeal by the decree-holder. The contention of the learned Counsel for the appellant is, that the view taken by the Court below is wrong, first, because the present application is made within three years from the date of the next preceding application, which was made on the 17th of February ]897, and behind which it is not competent for the parties to go; and, secondly, because even if it were competent to the judgment-debtor No. 4 to go behind the application of the 17th February 1897, that application was a good application as it was made within three years from the date of the previous application which must have been made on the 24th February 1894, as the order made by the Court on that day would show.

15. I shall consider these two contentions separately. It is quite true that an application for the execution of the decree of the 13th August 1890 was made on the 17th February 1897, and that application was granted and some property of the judgment-debtors was attached upon that application. It is equally true that, according to the case of Mungul Pershad Dichit v.Grija Kant Lahiri (1881) I.L.R., 8 Cal., 51: L.R., 8 I.A., 123, the judgment-debtors who are bound by the orders made upon the previous application are, in that state of facts, precluded from going behind that application, and from contending that it was not in time and was not, therefore, a good application. But the only parties against whom the application of the 17th February 1897 can have this effect are the parties against whom that application, and the orders passed upon it, were made. It is clear, from the language of the judgment of the Privy Council in Mungul Pershad Dichit v. Grija Kant Lahiri, that the ground of that decision is shortly this, that where once an application has been made, and granted, upon notice to the judgment-debtor, and proceedings are taken upon such application, it is not competent to such judgment-debtor to question the validity of the orders made, and the proceedings taken upon such previous application, on the ground that application was barred by time. But that effect the application can have only against the parties against whom the application was made and upon whom notice of the application was issued. In the present case, the application relied upon was made, not against the judgment-debtor No. 4 who objects to the execution proceeding in the present instance, but only against the judgment-debtors Nos. 1 and 2. The case cited, therefore, cannot support the decree-holder's contention that the judgment-debtor No. 4, the respondent before us, is not entitled to go behind the application of the 17th February 1897, and to show that application was barred by limitation.

16. Then it is contended that, although the case of Mungul Pershad Dichit v. Grija Kant Lahiri (1881) I.L.R.,8 Cal., 51: L.R., 8 I.A., 123, taken by itself may not have that effect, yet, taken along with explanation 1 of Article 179 of the second schedule of the Limitation Act, it ought to have that effect: as the application of the 17th February 1897 was an application made for the execution of a decree passed jointly against all the judgment-debtors.

17. Let us then examine the language of the explanation. It says that 'where decree has been passed jointly against more persons than one, the application, if made against any one or more of them, or against his or their representatives, shall take effect against them all.' That means that an application for execution which is itself an application made according to law, that is, which is not itself time barred, though made against some only of several persons against whom a decree is passed jointly, shall take effect against all of them. It does not say, however, that not only an application so made, but all orders made upon such application, shall have effect against the judgment-debtors other than those against whom the application was made. Now, it is necessary, for the success of the appellant's contention, that not only must the previous application have effect against all the judgment-debtors, but the orders made upon that application must also have a similar effect; for, otherwise, it could not be said that the judgment-debtor No. 4 was precluded from showing that the previous application relied upon was time barred. It is not the application itself, then, that would be sufficient for the appellant's purpose; but it must be the application taken with the order made thereon that can preclude a party from going behind the application and contending that it was time barred; and there is nothing in the explanation to the effect that, not only the application, by which must be understood an application according to law, that is, an application within time, but orders made upon an application which would preclude persons against whom they are made from going behind the application, shall have effect against judgment-debtors other than those against whom such orders were made. I do not, therefore, think that the contention urged on behalf of the appellant is correct. If the application, independently of the rule laid down in Mungul Pershad Dichit v. Grija Kant Lahiri, was itself an application good in law, that is, made before the time for making it expired, then it would be sufficient, not only as against the person against whom it was made, but also against other judgment-debtors against whom the decree was jointly made.

18. This brings me to the consideration of the second contention urged on behalf of the appellant, namely, that the application of the 17th February 1897 was not barred by limitation, as it was made within three years from the date of a previous application which must have been made on the 24th February 1894. Now there is no application of the 24th February 1894, or of any other date in February 1894, forthcoming; and the only ground upon which the appellant's contention rests is this, that the order sheet in the case shows that a notice on the judgment debtor to show cause why he should not be arrested was ordered to be issued on the 24th February 1894, and as that order could have been made only upon an application for the issue of such a notice, we must presume that an application for the issue of such a notice, which would be an application to take some step in aid of execution, was made. I do not think that inference at all follows; for the order of the 24th February 1894 might well have been made, and, in my opinion, was, in fact, made, not upon any fresh application made on that day, but upon the original application for execution made on the 7th October 1893, which contained a prayer that after service of notice, on the judgment-debtors named in the column of names a warrant of arrest might be issued against them. That being so, the contentions urged before us both fail, and the appeal must be dismissed with costs.


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