Skip to content


Raj Kumari Prafulla Nalini Dassi and anr. Vs. Nrishingha Kumari Dasi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Reported inAIR1942Cal255
AppellantRaj Kumari Prafulla Nalini Dassi and anr.
RespondentNrishingha Kumari Dasi and ors.
Cases ReferredMaharaj Bahadur Singh v. Forbes
Excerpt:
- .....j. in subbarayan v. natarajan ('22) 9 a.i.r. 1922 mad. 268, 'to an application for execution of a decree article 182 has first to be applied and if it is found not wanting when tested by article 182, then section 48, civil p.c., operates as a further test.'4. a point similar to the present was discussed in faqir chand v. kundan singh : air1932all351 . there a decree was amended under section 152, civil p.c. more than 12 years after the decree was passed; and within a year from the date of amendment the decree-holder presented his application for execution of the decree. under article 182 (4), limitation act, the period of three years would run from the date of amendment of the decree, and the application was quite in time, if clause (4) of article 182 was applicable. it was held that.....
Judgment:

1. This appeal is on behalf of the decree-holder, and it is directed against an appellate order made by the District Judge of Nadia affirming an order of the Munsif, First Court of that place, dismissing the appellants' application for execution of a decree on the ground that it is barred under Section 48 Civil P.C. The appellants decree-holders-obtained a rent decree against respondents 1-4, and the predecessor-in-interest of respondent 5 for a sum of Rs. 1829 as. odd on 23rd March 1919. The judgment-debtors had, amongst other properties, a patni tenure which they held under Satyabala Dasi and others, and this patni was sold at the instance of the latter, for default in payment of patni rent, under Regulation 8 of 1819 on 17th November 1919, just six days before the appellants obtained their decree. The patni was purchased at the regulation sale, by one Rakhal Das Tarafdar for Rs. 13,000 and after meeting the patni rent due to the zemindar, a large sum of money still remained with the Collector as surplus sale proceeds. On 5th January 1920, the appellants applied for execution of their rent decree against the judgment-debtors and in course of the execution proceedings, the surplus sale proceeds of the patni taluk lying with the Collector, were attached, and the entire decretal dues were satisfied from the same. The execution case started by the appellant was thus dismissed on full satisfaction on 2nd March 1920. Subsequently, a darpatnidar under the judgment-debtors, instituted a suit to set aside the patni sale. This suit was decreed, and the patni sale was set aside on 8th January 1922. The auction purchaser then got back his purchase money from the zemindars by instituting a suit against them, and recovering a decree upon the same, and the zemindars in their turn, sued the appellants for refund of the money taken away by them in execution of their decree against the judgment-debtors. This suit was decreed by the trial Court on 13th September 1929. There was an appeal to the District Judge, against this decision and that being dismissed, a second appeal was taken to this Court, which was eventually dismissed on 14th November 1935. The decree-holders being thus compelled to refund the whole amount which they had taken in satisfaction of their decree filed the present application on 14th November 1938, praying for revival of the original application for execution which was dismissed on 2nd March 1920, and for realisation of the decretal dues by attachment and sale of other properties belonging to some of the judgment-debtors. Both the Courts below refused to treat this application of the appellant as a continuation of their original application for execution, and they rejected it on the ground that any application for execution was now barred under Section 48, Civil P.C. It is the propriety of this view that has been challenged before us in this appeal.

2. Mr. Das who appears for the appellants has contended before us that, as his clients are seeking execution in respect of the amount which they had to refund to the zemindars, under a decree obtained by the latter in a suit brought against them, they are entitled under Clause (6) of Article 182, Limitation Act, to a period of three years from 14th November 1935 when the decree was made by the final Court of appeal in the refund suit. The application for execution was therefore quite in time, and Section 48, Civil P.C., did not in any way affect or curtail the provision of Article 182. It is also argued that in any event, the Courts below should have treated the present application as one in continuation or for revival of the former application for execution. So far as the first point is concerned, there is no doubt that the present case comes within the wording of Article 182, Clause (6), Limitation Act, which provides for execution of a decree in respect of any amount which was recovered by the decree-holder by execution of his decree, but which he was directed to refund later on by a decree passed in a suit for such refund. The period of three years mentioned under column (2) of the article is to begin in such cases from the date when the final decree is made in the suit for refund. The difficulty however is created by the fact that the Legislature when it introduced the present Clause (6) in Article 182, Limitation Act, did not alter the provision under column (1) of the article, or that of Section 48, Civil P.C. Article 182, Limitation Act, governs an application for execution of a decree or order of any civil Court which is not provided for by Article 183, or Section 48, Civil P.C. Section 48, Civil P.C., imposes a restriction on the right of the decree-holder, by fixing a maximum time for execution, and by enacting that no order for execution shall be made upon an application presented after the expiry of 12 years from the date of the decree, or from the other dates specified in Clause (b) of the section. If a decree-holder has realised an amount of money by execution of his decree, but is compelled to refund that amount by a decree passed in a subsequent suit for refund, there is no doubt that he will he entitled to take out execution for this amount, if the application is presented within three years from the date of the final decree in the refund suit, provided 12 years have not already run out from the date of the original decree. The question, however, is as to whether if 12 years had already expired from the date of the original decree, the decree-holder will be still entitled to avail himself of the provision of Article 182 (6), Limitation Act. The answer in our opinion should be in the negative.

3. Under Section 3, Limitation Act, every application made after the period prescribed by Schedule 1, Limitation Act, shall be dismissed. Article 182 of Schedule 1 prescribes a period of three years beginning from the dates specified in the various clauses, for an application for execution of a decree, which inter alia is not provided for by Section 48, Civil P.C. In a sense every application for execution is provided for under Section 48, Civil P.C., which prescribes a period of 12 years after which no such application could be entertained by a Court. If we give this interpretation to these words in Article 182 the result would be an absurdity, for the whole of the article would in that case be rendered inoperative and would not be applicable to any application for execution of a decree. The words should reasonably be construed to mean 'not provided for as regards dismissal by Section 48, Civil P. C,' In other words execution can be allowed under Article 182 only if it is not barred and liable to be dismissed under Section 48, Civil P.C. To quote the language of Bamesam J. in Subbarayan v. Natarajan ('22) 9 A.I.R. 1922 Mad. 268, 'to an application for execution of a decree Article 182 has first to be applied and if it is found not wanting when tested by Article 182, then Section 48, Civil P.C., operates as a further test.'

4. A point similar to the present was discussed in Faqir Chand v. Kundan Singh : AIR1932All351 . There a decree was amended under Section 152, Civil P.C. more than 12 years after the decree was passed; and within a year from the date of amendment the decree-holder presented his application for execution of the decree. Under Article 182 (4), Limitation Act, the period of three years would run from the date of amendment of the decree, and the application was quite in time, if Clause (4) of Article 182 was applicable. It was held that Article 182, Limitation Act, was subject to the provision of Section 48, Civil P.C., and as the execution of the decree was barred under the latter section, Clause (4) of Article 182, Limitation Act, could not be availed of by the decree-holder to get a starting point for limitation from the date on which the amendment was made. This decision was followed by the Madras High Court in Rama Chandra Rao v. Parsuramayya ('40) 27 A.I.R. 1940 Mad. 127, and it was pointed out by K. Ayyangar J. that while the case of an amendment was made and provided for by Article 182, Limitation Act, it was significant that the language of Section 48, Civil P.C., had been left unaltered. It was therefore a fair inference that the period of 12 years should be counted from the date of the decree irrespective of any amendment that it might have undergone since. The same reasoning applies in respect to Clause (6) of Article 182, and if it was the intention of the Legislature to allow a decree-holder a period of three years from the date when the decree for refund was subsequently passed against him, irrespective of the fact that the original decree had then become barred under Section 48, Civil P.C., it would have made suitable alterations either in the language of Section 48, Civil P.C., or in that of Article 182, Limitation Act, itself. Of course it can be argued that in case of amendment of a decree if the amendment was not applied for or obtained within 12 years, the decree-holder must be to blame, and it is proper that he should suffer for his neglect and inaction. In a case under Clause (6) on the other hand the decree-holder may be entirely blameless and the refund order might be made after 12 years, without any fault on his part. The circumstances of the present case indicate that this might lead to hardship and injustice and we are inclined to think that there is a definite lacuna in this respect in the present law. We are however bound to interpret the law as it stands, and, in view of the clear wording in Article 182, Limitation Act, it is not possible for us to hold that Clause (6) of the Article could be availed of by a decree-holder, if his decree comes within the prohibition contained in Section 48, Civil P.C. This contention of Mr. Das must therefore fail.

5. The second contention put forward by Mr. Das cannot also in our opinion succeed. There are two material reasons which stand in the way of our treating the present application, as one for revival or continuation of the original proceeding. In the first place, the earlier proceeding had finally terminated and had been disposed by a judicial order passed on 2nd March 1920. It is not a case where execution proceedings were interrupted by reason of circumstances over which the decree-holder had no control, or an order of dismissal or striking off was made merely for administrative or statistical purposes. The decree was fully satisfied and the execution case dismissed on full satisfaction. The provision of Clause (6) of Article 182 itself indicates, that the subsequent application for execution for recovery of the amount which the decree-holder had to refund, is in substance a new application. The other reason is that the present application cannot be said to be of the same nature as the previous one. As has been pointed out by the trial Judge, in the first application the only prayer of the decree-holders was for attachment of the surplus sale proceeds, belonging to all the judgment-debtors and lying with the collector. In the present proceeding they seek to attach and sell certain immovable properties which are owned by one of the judgment-debtors. Where the character of the subsequent application is different from that of the previous one, the later application cannot but be regarded as a fresh application : vide Maharaj Bahadur Singh v. Forbes ('29) 16 A.I.R. 1929 P.C. 209. The result is that this appeal fails. We direct that each party would bear his own costs in all the Courts.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //