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Kartic Chandra Mukherjee Vs. Bata Krishna Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1938Cal25
AppellantKartic Chandra Mukherjee
RespondentBata Krishna Roy and ors.
Cases Referred and Ramana Reddi v. Babu Reddi
Excerpt:
- .....litigation. but whether matters included in a compromise are or are not outside the scope of the suit is a question which has to be decided with reference to the circumstances. it has been held that the mutual connection with the different parts of the reliefs granted by a consent decree is an important element of consideration in each ease in deciding whether any portion of the relief is within the scope of the suit. no hard and fast rule can be laid down, each case being governed by its own facts : govinda chandra paul v. dwarka nath paul (1908) 35 cal 837 it has also been pointed out that facts have got to be looked at in order to decide whether matters had been introduced in the suit that do not relate to the suit, but where the terms fall within the consideration for the.....
Judgment:

S.K. Ghose, J.

1. This is an appeal by one Kartic Chandra Mukherji a judgment-debtor in an execution proceeding and it raises a question of limitation. There was a suit for accounts being Title Suit No. 198 of 1911 in the Court of the Subordinate Judge of Purulia and it was decreed on 16th September 1916 against one Mukund Lal Laik. This decree was modified by the High Court at Patna on 6th December 1920. In 1921 the judgment-debtor died leaving a widow Jugol Kishori. There were two executions at Dhanbad. A third execution case was transferred to Asansole and executed there on 23rd March 1925. Upon, an objection under Section 47, Civil P.C., there-was a Miscellaneous Case No. 49 of 1925 and it was dismissed by the Asansole Court on 7th August 1925. Then there was an appeal to this Court being Miscellaneous Appeal No. 361 of 1925 and it was dismissed by Page and Graham JJ. on 25th July 1927 [see : AIR1927Cal952 . Thereafter an application for leave to appeal to His Majesty in Council was filed. While it was pending before a Bench presided over by the Chief Justice and C. C. Ghose J., a compromise was arrived at between the judgment-debtor Jugol Kishori on the one hand and the decree holders Nos. l and 2 on the other, the decree-holder No. 3 being respondent 3 not appearing. The compromise petition was filed on 5th December 1927. It will be relevant to mention the following terms of the compromise. The decretal amount was split up and two-third was taken to represent the share of respondents 1 and 2 (who are the present respondents in this appeal) and one. third was taken to represent the share of respondent 3. The arrangement was that the appellant Jugol Kishori would pay the amount in certain instalments. Clause 5 of the compromise runs as follows:

That if default is made in respect of two consecutive instalments payable to respondents 1 and 2 or respondent 3, execution will proceed for the whole of the instalments due to respondents 1 and 2 or respondent 3 as the case may be.

2. It was further provided that the appeal to His Majesty in Council would not be proceeded with further, that the Execution Case No. 58 of 1925 pending in the Asansole Court would stand dismissed and that certain properties described in Schedule A and situated in Behala in the District of 24-Parganas had been accepted by respondents 1 and 2 as security. It was also stated that the compromise was beneficial to the minor respondent 1 and lastly in Clause 12 it was stated that

the terms had been explained to and approved of by the appellant and the said terras had been settled in behalf of the appellant by her grandson (Kartic Chandra) Mukherjee who had authority from her to compromise the case.

3. It may be added that this Kartic Chandra Mukherjee is now the appellant in this appeal. Upon these terms the prayer in the compromise petition was, first, that the Privy Council appeal might be disposed of in terms of the petition and secondly that leave be given to record the said compromise in behalf of respondent 2 who was the guardian of the minor respondent 1. In accordance with these prayers, an order was made and drawn up in the form of a decree on 20th February 1928. The material question in this appeal will be whether time should run against the decree-holders as from 20th February 1928 or as from 6th December 1920. To proceed with the history of this litigation: On 1st August 1928 the judgment-debtor Jugal Kishori executed a deed of gift in favour of the present appellant and two others. Jugal Kishori died and upon a certificate of non-satisfaction being taken in the Purulia Court, execution was transferred to Alipore Court on 28th August 1930, the execution case there being numbered as execution case No. 240 of 1930. The execution petition Ex. C which is printed at pp. 6 and 7, Part 2 of the paper, book gives the date and number of suit as 'Title Suit No. 198 of 1911 as adjusted by P.C. A. No. 38 of 1927 decided on 20th February 1928'. The judgment-debtors are Gopi Bala Devi and Indumati Devi the two daughters of Jugal Kishori. At that time the appellant Kartic Chandra Mukherjee was not mentioned. The year and the date of the decree are given 'as T.S. No. 198 of 1911 as adjusted by P.C. A. No. 38 of 1927 dated 20th February 1928'. That execution was sought as from the date of the so-called adjustment on 20th February 1928 would further appear from cols. 7 and 10 of the petition wherein it was mentioned that there had been default in payment of the instalments due in June and September quarter of 1928 and the whole of the remaining instalments had thus become due. Upon the objection of the aforesaid two ladies, Misc. Case No. 23 of 1931 was started and it was dismissed on 13th July 1932. There was an appeal, namely M. A. No. 391 of 1932 and it was disposed of by the High Court on 17th May 1935. It will be useful to state here that in this objection there was no question raised that the decree of 20th February 1928 was in any respect invalid. The present appellant Kartic filed a claim under Order 21, Rule 58 Civil P. C, but it was dismissed for having been filed too late. He thereupon filed T.S. No. 151 of 1933 on 29th July 1933. But on 7th December 1934 he had the suit withdrawn on his own petition. The execution Case No. 240 of 1930 which had been pending at Alipore was dismissed for default on 17th January 1934. Thereupon proceedings took place which have given rise to the present appeal. On 13th June 1934 there was an application for execution filed against Kartic Chandra and others and on the petition of the decree-holders an adjustment of the decree of 20th February 1928 was recorded by the Purulia Court on 1st May 1934. The decree was sent for execution to the Second Court of the Subordinate Judge at Alipore on 15th May 1934. On 13th June 1934 the present Execution Case No. 106 of 1934 was started at Alipore. The petition for execution which is printed at pp. 22.24 of the paper book shows that the execution was being sought against Kartic Chandra Mukherji and others as judgment-debtors in respect of the same decree which was mentioned in the previous Execution Case No. 240 of 1930, namely:

T.S. No. 198 of 1911 of the Court of the Subordinate Judge to Purulia as adjusted by P.C.A. No. 38 of 1927 decided by the High Court on 20th February 1928.

4. On 7th December 1934 Kartic Chandra Mukherji filed an objection to the execution stating certain grounds including limitation but, so far as his last point is concerned, no details were given or facts stated. Before the Subordinate Judge one of the points urged was that the present execution was upon a certificate of non-satisfaction issued by the Purulia Court and was therefore incompetent. The Subordinate Judge held against it, and this point has not been raised further in this appeal. Then remains the question of limitation. Before the Subordinate Judge it was contended that the execution was time-barred, the application having been made after 12 years from the date of the decree as under Section 48, Civil P.C. According to the objector, time would run from 6th December 1920 the date on which the decree of the trial Court was modified by the High Court. The Subordinate Judge has taken the view that the decree which was drawn up on 20th February 1928 by the Calcutta High Court in terms of the compromise was in the nature of a subsequent order under Section 48 (1) (b). He also proceeds to say that the adjustment was one in the execution proceeding as under Order 21, Rule 2 and he held that limitation should run from 20th February 1928 and so the application for execution was not time-barred. There was a further point as to limitation on the ground that one of the decree-holders, namely Baidya Nath, was a minor until some time in 1934. The Subordinate Judge held that the decree-holders were entitled to protection under Section 7, Lim. Act, and in that view also the application was not barred. Against that judgment the present appeal has been filed.

5. So far as the question of limitation under Section 48, Civil P.C., is concerned, the point for determination is whether the order of the High Court of 20th February 1928 can be taken to be a subsequent order as contemplated by Clause (b), Sub-section (1). It is conceded by Mr. Chakravarti for the respondents that Order 21, Rule 2, Civil P. C, has no application. There is a further point namely whether apart from Section 48, it can be said that the decree of 20th February 1928 had been substituted for the old decree for the purposes of execution by agreement between the parties. Dr. Pal for the appellant has contended that the expression 'subsequent order' in Section 48 (1) (b), means an order of the Court which passed the decree. On the second question he has contended that the new decree which was sought to be executed must have been passed by the same Court or the Court exercising the same jurisdiction as the original Court and he has suggested that the test is whether a suit to enforce an agreement may be brought in either of the Courts. Our attention has been directed to certain decided oases in all of which, subject to certain differences, as to details, the material facts are very similar. In D.S. Apte v. Tirmal Hanmant AIR 1925 Bom 503 there was a decree made by a Subordinate Judge on 28th May 1903 and a final decree by the High Court on 8th September 1908. On 9th June 1911, the same Subordinate Judge sitting as an executing Court made an order that the amount should be recovered by instalments and that in case of default to pay any one instalment the whole amount would be recoverable. The execution petition was filed on 21st December 1921 and so the question of limitation arose. It was held that the application was not barred. Norman Macleod C. J. said as follows:

With great respect, I cannot see myself why the words, 'any subsequent order' must be limited as if the words 'by the Court which passed the decree' were there. The words 'any subsequent order,' to my mind, mean any order made by a competent Court.

6. Dr. Pal has contended that the authority of this decision has been weakened by the judgment of the Privy Council in Kirtyanand Singh v. Prithi Chand Lal . There it was held that the expression 'any subsequent order' in Section 48 (1) (b) means an order in the suit in which the decree is made. All that Dr. Pal can argue is that the view of the Bombay High Court in D.S. Apte v. Tirmal Hanmant AIR 1925 Bom 503 as mentioned above is perhaps too wide. He cannot argue that in Kirtyanand Singh v. Prithi Chand Lal the Bombay view has been overruled. More-over, in that case their Lordships were dealing with an order which had been made in a different suit and it was from that point of view that their Lordships held that on the true construction of the section the subsequent order must be an order made in the suit in which the decree was made. In 57 Cal 7898 the facts, which are almost the same as in the present case, were looked at from the point of view of an agreement between the parties. There it was held that the original decree had been superseded by the compromise which was the reason for distinguishing it from the case in Syama Sundari Devi v. Raj Gopal Acharya Gossami (1922) 27 CWN 43n. It was pointed out that a new arrangement had been entered into and that in the execution case the decree-holder wanted to execute the substituted decree. 'So the provisions of Section 48 could not bar that application if that application be otherwise sustainable' (page 794). Dr. Pal has not contended that this decision is wrong, but he has sought to distinguish it on the ground that it does not appear that the executing Court there was different from the trial Court and that if it was necessary to file a suit for the enforcement of the agreement, it would not have been in the same Court. Dealing with this question, B. B. Ghose J. remarked as follows:

But the only question in this case is that, if the decree-holder might have brought a separate suit on the agreement, can he not ask for relief in execution by reason of the agreement entered into between the parties that the money should be realized in execution?

7. In the judgment reference was made to the case in Pisani v. Attorney-General for Gibraltar (1874) 5 P C 516. In that case the Crown instituted a suit for a declaration that certain properties had escheated for want of heirs. The Attorney-General, finding it not very hopeful to prove want of heirs, desired to have it decided which of the defendants was entitled to succeed and ultimately the suit was converted into one for decision of title as between certain defendants. This was done by agreement and the plaint was accordingly amended. It was remarked as. follows:

It is true that there was a deviation from the cursus curiae, but Court had jurisdiction over the subject, and the assumption of the duty of another tribunal is not involved in the question. Departures from ordinary practice by consent are of every day occurrence; but unless there is an attempt to give the Court a jurisdiction which it does not possess, or something occurs which is such a violent strain upon its procedure that it puts it entirely out of its course, so that a Court of Appeal cannot properly review the decision, such departures have never been held to deprive either of the parties of the right of appeal.

8. This view has been adopted in other cases, as for instance, in Sadasiva Pillai v. Ramlinga Pillai (1874) 2 IA 219 at page 233. Dr. Pal has therefore rested his contention on this that the High Court at the time of making its order of 20th August 1928 had no longer seisin of the matter, M. A. 361 of 1925 having been disposed of on 25th July 1927. He has. further pointed out that the security which was given in Schedule A to the compromise petition was situated within the jurisdiction of the Alipore Court. We are unable to hold that this circumstance afforded a formidable obstacle to the High Court exercising its jurisdiction. According to the ordinary procedure, the matter was still pending before the High Court on account of the application for leave to appeal. Therefore practically it was the High Court which had seisin of the matter and nothing arising out of the application for leave to appeal or out of the miscellaneous appeal to the High Court had been remitted back to the lower Court. That there were two separate Division Benches, one dealing with the miscellaneous appeals and the other dealing with applications for leave to appeal before His Majesty in Council, makes no difference so far the jurisdiction of the High Court is concerned. With regard to the properties mentioned in Schedule A, the decree-holders would have their remedy whether by suit or by execution in the Alipore Court and ultimately in the High Court. Dr. Pal has contended that so far as the matter of the security in Schedule A is concerned, it would be outside the application for leave to appeal and therefore the operative part of the decree made by the High Court on 20th February 1928 was not related to the security. In Hemanta Kumari Devi v. Midnapore Zamindary Co. Ltd. AIR 1919 P C 79 it was held that the operative part of the decree would be properly confined to the actual subject matter of the then existing litigation. But whether matters included in a compromise are or are not outside the scope of the suit is a question which has to be decided with reference to the circumstances. It has been held that the mutual connection with the different parts of the reliefs granted by a consent decree is an important element of consideration in each ease in deciding whether any portion of the relief is within the scope of the suit. No hard and fast rule can be laid down, each case being governed by its own facts : Govinda Chandra Paul v. Dwarka Nath Paul (1908) 35 Cal 837 It has also been pointed out that facts have got to be looked at in order to decide whether matters had been introduced in the suit that do not relate to the suit, but where the terms fall within the consideration for the adjustment of the matter in dispute, whether they are the subject matter of the suit or not, they have become related to the suit and can be embodied in the decree: Sashi Bhusan Shaw v. Hari Narayan Shaw AIR 1921 Cal 202.

9. Mr. Chakravarty for the respondents has suggested that, according to the terms of the compromise the security mentioned in Schedule A was the consideration for the compromise and therefore it was not outside the scope of the order which was made by the High Court on 20th February 1928 by which the application for leave to appeal was allowed to be withdrawn. In Gururao Narsingrao v. Ramchandra Srinivasrao AIR 1933 Bom 244 there was no difficulty, because there a final order for the admission of an appeal to His Majesty in Council had already been made by the High Court and thereafter a compromise was sought to be made between the parties. So it was held that the High Court had no power even by consent of the parties to supersede its first decree. Nor is this a case where there was an apparent want of jurisdiction as was contemplated in Amalabala Dasi v. Sarat Kumari Dasi : AIR1932Cal380 . Mr. Chakravarty has pointed out that the present objection as to want of jurisdiction on the part of the High Court was not raised at any previous stage either by the present appellant or by the judgment-debtor in the previous execution case. The question turns upon what was the intention of the parties. Having regard to the terms of the petition of compromise, we are of opinion that it was the intention of the parties that the application for leave to appeal to His Majesty in Council should be withdrawn, that the decretal amount should be paid according to the procedure stated therein to suit the convenience of the parties, and that the consideration for all this compromise was the security which was mentioned in Schedule A. It was further the intention of the parties that future default would be realized by execution and not by suit. There was also the fact which cannot be overlooked that the present appellant was himself a prominent partaker in this compromise, though not in the capacity of an actual party as a judgment-debtor.

10. The case in Sarada Prosad Ghosh v. Rokeya Khatun Bibi (1935) 39 C W N 1036 takes a different view from Hridyamohan Sanyal v. Khagendranath Sanyal : AIR1929Cal687 without actually overruling it. It is however possible to distinguish the two oases on the facts. In Sarada Prosad Ghosh v. Rokeya Khatun Bibi (1935) 39 C W N 1036 there was a decree made on 26th July 1930 and adjustment on compromise on 13th August 1930 by which it was agreed that the amount would be payable by instalments and on default to be realized by execution. The last execution was filed at a period which was beyond three years from the compromise but within three years from the date of the original decree. The question was whether the parties could supersede the original decree by agreement. The learned Judges took the view that it was not necessary to decide that question, but they held that the parties could not extend limitation. Section 48, Civil P.C. however did not apply, because limitation was provided for either under the Bengal Tenancy Act or under Article 182, Limitation Act. Lastly there is a case in Gobardhan Das v. Dau Dayal : AIR1932All273 . That case expressly dissented from Hridyamohan Sanyal v. Khagendranath Sanyal : AIR1929Cal687 and it was followed in Sarada Prosad Ghosh v. Rokeya Khatun Bibi (1935) 39 C W N 1036. The facts however are not quite the same. There was a decree made on 10th February 1915 and application for execution on 21st March 1923. In accordance therewith a warrant was issued. There was a compromise on 29th August 1923 according to which the parties agreed to have payments made by instalments. Thereupon the Court made the following order : ' Parties have come to a compromise. Warrant may be cancelled.' That was all. On 16th January 1928 the decree-holder applied for execution. It was held that the application was barred under Section 48, Civil P.C. Sulaiman C. J. pointed out (at page 592) that when the compromise was filed the Court ordered that the warrant might be cancelled. So there was no question of any subsequent order as under Section 48 (1) (b). At page 586 however Sulaiman C. J. proceeds to consider whether the original decree can be altogether superseded by a new arrangement and in that connection he differs from the view taken in 57 Cal 789.3 It seems to us that so far as the present case is concerned, the Allahabad case is distinguishable. Dr. Pal contends that in the present case the High Court did not make an order as to payment under Section 48 (1) (b). But the order of 20th February 1928 goes far beyond that in the Allahabad case and, if read along with the petition of compromise, it must be taken to be an order directing payment of money in accordance with the terms of the petition of compromise. Our conclusion therefore is that the order of the High Court which was made on 20th February 1928 and which was included, in the application for execution was in the nature of a subsequent order made by a competent Court under Section 48 (1) (b). We therefore think that in any case the parties had by their agreement substituted the decree as modified by the petition of compromise for the original decree and, having regard to all the circumstances, it was competent for the decree-holders to apply for execution of the decree which was not barred. Therefore limitation must run as from 20th February 1928 and consequently it is within time.

11. The next question is whether the decree-holders are entitled to the benefit of Section 7, Limitation Act, in view of the fact that one of them, namely Baidyanath was a minor until sometime in 1934. Having regard to our decision on the first point under Section 48, Civil P. C, this question does not arise. Still as it has been argued here as also in the lower Court, we propose to deal with it. It has been pointed out to us that the judgment of this Court dated 25th July 1927 : vide Ex. A, which is also reported in Jugal Kishori Debi v. Baiaya Nath Roy : AIR1927Cal952 binds the present appellant to this extent that the respondent Bato Krishna cannot be held to have been capable of giving discharge without the concurrence of the minors within Section 7, Limitation Act. The only question now is whether limitation should run according to Section 48, Civil P.C. or whether the decree-holders respondents are entitled to an extended period under Section 7, Limitation Act. Our attention has been directed to certain oases decided by the different High Courts: Girija Nath Roy v. Patani Bibee (1890) 17 Cal 263; Akhoy Kumar Soor v. Bejoy Chand Mohatap (1902) 29 Cal 813; Moro Sadasiv v. Visaji Raghunath (1892) 16 Bom 536; Prem Nath Tiwari v. Chatrapal Man Tiwari AIR 1915 All 349; Ram Krishna Vithal v. Ram Chandra Dattatraya AIR 1930 Bom 508 and Ramana Reddi v. Babu Reddi AIR 1914 Mad 526. All these oases agree in holding that Section 6, Limitation Act is expressly limited to cases where limitation is prescribed in Schedule 1 to the Act, and that where limitation is provided for in some Act outside the provisions of the Limitation Act, such special limitation is not affected by Section 6 or Section 7. We do not consider that the two Calcutta oases referred to above encourage a different view. The ease in 16 Bom 53617 however proceeds further to hold that under the general principle of law a minor is entitled to an extension of the period. This has been expressly dissented from in the later cases in Madras and in Allahabad. The weight of judicial authority is thus in favour of the view that, as Section 48 specially provides for limitation, it is not governed by the provisions of Section 6 or Section 7, Limitation Act. Consequently the decree-holders are not entitled to that extended period. Having regard to our decision on the first point, we consider that the application for execution is not time-barred. The result is that this appeal must stand dismissed with costs hearing fee being assessed at five gold mohurs.

Patterson, J.

12. I agree.


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