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Sm. Akshoy Kumari Debi Vs. Nalini Ranjan Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 5 of 1949
Judge
Reported inAIR1950Cal493,54CWN815
ActsCode of Civil Procedure (CPC) , 1908 - Section 11 - Order 21, Rule 22; ;Limitation Act, 1908 - Schedule - Article 182 and 182(5)
AppellantSm. Akshoy Kumari Debi
RespondentNalini Ranjan Mukherjee and ors.
Appellant AdvocateManindra Nath Ghose and ;Anil Kumar Sen, Advs. for ; Sibadas Ghose, Advs.
Respondent AdvocateChandra Sekhar Sen and ;Mritunjoy Dey, Advs.
DispositionAppeal allowed
Cases ReferredRamanuj Sewak Singh v. Hingu Lal
Excerpt:
- .....execution could be issued. if the omissions were such as to make it impossible for the court to issue execution upon it, as was the case in asgar ali v. trailokya nath ghose, 17 cal. 631 (f.b.), where the list of properties to be attached and sold was not supplied with the application for execution, it should be held that such an application is not in accordance with law.'in the same case page j. observed as follows on page 678: 'the true view is that where an application for execution in substantial compliance with law is preferred to the court, such an application will be effectual to stay the progress of limitation' whether the court a limits or rejects or returns the application or allows such application to be amended. all the cases bearing on the point were reviewed by sen j. in.....
Judgment:

G.N. Das, J.

1. This is an appeal by the decree-holder against a decision of our learned brother Chunder J.

2. The facts of the case were not fully placed before this Court We have therefore to state those facts in some detail.

3. On 23rd March 1942, the appellant obtained a decree in the Presidency Court of Small Causes, 4th Court, against Rati Kanta Mukherji for a sum of Rs. 1127-10-9. It appears from the order sheet which is on the record that there was an attachment before judgment on 6th March 1942 which was confirmed by the Court. On 18th June 1942, the attached properties were released from attachment and the order of that date goes on to state that the execution case was dismissed. On some date which it is not possible for us to discover from the records but prior to June 1944, the sole judgment-debtor Rati Kanta Mukherji died. He was survived by his widow and four sons, Nalini Ranjan Mukherji, Anil Krishna Mukherji, Ranjit Kumar Mukherji and Sailen Mukherji the latter two being minors. On 26th June 1944 the decree-holder made an application which purports to be one for execution of the decree passed on 23rd March 1942. In Column 9 of the application which is headed as 'Mode in which the assistance of the Court is required' the following statement occurs ;

'I pray that the total amount of Rs. 1127-10-9 together with interest on the principal sum up to date of payment and the costs of taking out this execution be realised by attachment and sale of defendant's moveable property as per annexed list and paid to me. A notice do issue upon Nalini Ranjan Mukherjee of village Nalta, P. O. Maju, district Howrah, to show cause why his name should not be substituted in record in place of defendant Rati Kanta Mukherjee now deceased and execution be issued against him and notice be sent under registered cover. Grounds: That Nalini Ranjan Mukherjee is the son, heir and legal representative of the defendant Rati Kanta Mukherji now deceased.'

On the day following the following order was recorded :

'On the plaintiff's application for substitution of the name of Nalini Ranjan Mukherji in place of defendant deceased ordered; Issue notice returnable on 1st August 1944.'

The order sheet shows that the case was adjourned on 1st August 1944, 22nd August 1941, 9th September 1944, 11th November 1944 on which date it was adjourned to 2nd December 1944, when the application was dismissed for default. Some time thereafter, on 8th June 1945 an application on terms similar to that which was filed on 26th June 1944, was presented to the Small Cause Court on behalf of the decree-holder. The Court thereupon issued a notice on 13th June 1945. The case was adjourned on 7th July 1945, 4th August 1945 and then to 1st September 1945. Meanwhile, on 25th August 1945, the following order was recorded :

'On the plaintiffs' application for substitution of the names of Anil Krishna Mukherji, Ranjit Kumar Mukherji, Sailen Mukherji and Mrs. Rati Kanta Mukherji the minors represented by their mother Mrs. Rati Kanta Mukherji ordered: Issue notice returnable on 1st September 1945.'

On 1st September 1945, it was ordered :

'Ordered that the names of the opposite parties Anil Krishna Mukherji, Ranjit Kumar Mukherji, Sailen Mukherji, the minors represented by their mother Mrs. Rati Kanta Mukherji as guardian and Mrs. Rati Kanta Mukherjee be placed on record as heirs and legal representatives of deceased defendant. No order is made as to Nalini Ranjan Mukherji.'

Nothing further was done till 1st October 1945, when the following order is recorded :

'On the plaintiff's application for substitution of the name of Nalini Ranjan Mukherji in place of deceased defendant ordered: Notice do issue returnable on 24th November 1945.'

On 3rd October 1945 notice was issued as prayed for. The matter was adjourned on 24th November 1945 to 1st December 1945 on which date the Court passed the following order :

'Application granted: Let the name of Nalini Ranjan Mukherji be placed on record as son, heir, legal representative of the defendant since deceased. Execution to issue,'

On 12th December 1945 an application was made by the decree-holder for transfer of the decree to the Munsit's Court at Howrah on 17th December 1945 the decree was transferred under letter No. 2735 dated 20th December 1945. The execution was thereupon started at Howrah. The judgment-debtors appeared and raised an objection to the effect that the execution of the decree was barred by limitation. The trial Court overruled the objection and directed execution to proceed. On appeal, the first appellate Court allowed the appeal and dismissed the execution case. Against this order a further appeal was taken to this Court being appeal from Appellate order No. 197 of 1947. This appeal was heard on 11th August 1949 and the appeal was dismissed. It is the propriety of this decision which is now in question before us.

4. The judgment of this Court proceeds on the following grounds: (1) In case the judgment-debtor dies after the decree and if an execution case is pending at the time, the decree-holder has merely to pray to carry forward the execution case. (2) If no such execution is pending, the decree-holder is required to make an application for execution in terms of Order 21, Rule 11 read with Section 50, Civil P. C. if the judgment-debtor was dead within one year of the passing of the decree but if the death took place before one year, a further prayer has to be made under Order 21, Rule 22, Civil P. C. As in the present case there was no proper application for execution, the steps taken by the decree, holder were not in accordance with law and did not save limitation. The view of the learned Judge was that there must be an application for execution started in which a prayer should be made under Order 31, Rule 22, Civil P. C. Before we deal with this question it is necessary to refer to a matter which was not placed before the Court. From the facts stated already it appears that after all the heirs of the deceased judgment-debtor had been placed on the record, the Court made an order directing execution to issue and thereafter transferred the case for execution to Howrah. The heirs of the judgment debtor who were then on record did not take any steps to have the order set aside. In these circumstances, it was not open to the judgment-debtor to raise the plea of limitation. As was observed in the case of Gour Chandra v. Janardan Prasad, A. I. R. (10) 1923 Pat. 180: (68 I. C. 337), the order directing execution to issue was an order 'deciding as between the parties that the execution was not barred by limitation.' Such an order has been held to operate as res judicata and whether right or wrong, the order cannot be challenged in subsequent proceedings. See also the cases of Promotha Nath v. Habu Mia, 49 C. W. N. 260: (A. I. R. (32) 1945 Cal. 335), Satya Narayan v. Kalyani Prosad, 49 C. W. N. 558 : (A. I. R. (32) 1945 Cal. 387). In this view, no further question arises. But as the matter has been argued at length on other points we desire to record our opinion on those points.

5. The first point which fell to be decided before our learned brother Chunder J. was whether when a judgment-debtor dies after the decree at a time when no execution case is pending against him, the proper procedure for the decree-holder is to take out an execution and pray for bringing the legal representatives of the deceased judgment-debtor on record and if the judgment-debtor had died more than one year ago to pray for issue of a notice under Order 21, Rule 22, Civil P. C. The learned Judge answered the question in the affirmative. The view so taken is supported by the decision in Kuppuswami Chettiar v. Rajagopal Aiyar, 45 Mad. 462 : (A. I. R. (9) 1922 Mad. 79) and by some other cases of the Madras High Court. It is also supported by certain observations of Ghose J. in Amar Krishna, v. Jagat Bandhu, 59 Cal. 760 at p. 771 : (A. I. R. (18) 1931 Cal. 719 F. B.), where the learned Judge incidentally observed :

'It must be remembered that a step-in-aid of execution can only be taken in the course of an execution proceeding which is pending or capable of being kept alive and there can be no step-in-aid of execution when the execution itself is already barred.'

The above view however has not been taken in the cases of Sankara Nainar v. Thangamma, 45 Mad. 202 : (A. I. R. (9) 1922 Mad. 247), M. Kannan v. P. Avvulla Haji, 50 Mad. 403 : (A. I. R. (14) 1927 Mad. 288), Chathangali v. P. Kunhamu, 57 Mad. 808 : (A. I. R. (21) 1934 Mad, 392), Ghanayalal v. Punjab National Bank, 111 I. C. 259 : (A. I. R. (15) 1928 Lah. 7), Jagdeo Narain Singh v. Rani Bhubaneswari Kuer, 7 Pat. 708 : (A. I. R. (15) 1928 Pat. 612), Gopal Shankar v. Raising Premji, 36 Bom. L. R. 510: (A. I. R. (21) 1934 Bom. 266), Ramchandra v. Uka, 103 I. C. 279 : (A. I. R. (14) 1927 Nag. 308). I have not been able to discover a direct Bench decision of this Court on this point. In my view the latter class of cases which take a more liberal view of Article 182(5), Limitation Act, should be accepted. The article should receive a fair and liberal and not a technical construction so as to enable the decree-holder to reap the fruits of his decree. The view taken in the latter class of cases is also correct on principle. It is well settled that an application for the transfer of a decree is a step-in-aid of execution even though no application for execution is pending: Sreenath Chakravarti v. Priyanath Bandopadhya, 58 Cal. 882 at p. 841: (A. I. R. (18) 1931 Cal. 312). If therefore an application for transfer of a decree can be regarded as a step-in-aid of execution even when no execution is pending, there is no conceivable reason why it is necessary that an execution proceeding should be pending when the decree-holder makes an application for the issue of a notice under Order 21, Rule 22, Civil P. C., which step he has to take before he can obtain relief by way of execution. The question whether an application for the issue of notice under Order 21, Rule 22 is a step-in-aid of execution has been answered in the affirmative in the case of Gopal Chunder Manna v. Gossain Das, 25 Cal. 594 : (2 C. W. N. 556 F.B.). Banerjee J. who was the referring Judge was of opinion that even if the application for execution be defective regarded as an application for execution of a decree, if the application contained a prayer for issue of a notice under Order 21, Rule 22 the application would still be regarded as one to take some step in aid of execution, in cases where issue of such a notice was necessary, the decree having been passed more than a year before. The view of Banerjee J. was affirmed by the Full Bench. In a later case, namely, Abdul Aziz v. Yakub Abdul Gani, 54 I. C. 433: (A. I. R. (7) 1920 Cal. 166) Chitty J. was of opinion that even if there was no application for execution, a mere prayer for the issue of a notice under Order 21, Rule 22 is a step-in-aid of execution. Walmsley J. agreed in the result but reserved his opinion on this point. Reference may be made to the case of Saday Chandra v. Pares Nath 35 C. l. j. 82 : (A. I. R. (9) 1922 Cal. 44) to which our attention was drawn by Mr. Ghose appearing for the appellant. It is necessary to set out the facts of that case. In that case, the decree was obtained on 2nd December 1912. An execution was started within three years. Nothing came out of it. On 22nd May 1947 a second application for execution was filed. The application for execution was defective in three respects namely, (1) the date of disposal of the previous application for execution was not correctly stated: (2) the sum due under the decree was wrongly calculated and (3) that col. 10 which deals with the mode of execution was not duly filled up. It, however, contained the following prayers: for substitution of the heirs of one of the decree-holders: (2) for a notice on the other decree-holders under Order 21, Rule 15 and (3) as one of the judgment-debtors was dead for the issue of a notice under Order 21, Rule 22. It was contended that this application for execution did not save limitation. This contention was overruled, Mookerjee J. observed that an application to take a step in aid of execution in order that it may be in accordance with law must pray for some relief which the Court can grant, and then proceeded to say that the three prayers which were made in the application were such as could be granted by the Court on the application then presented. It was therefore held that the application was a step-in-aid of execution and extended the period of limitation.

6. Before Chunder J. reliance was placed on behalf of the judgment-debtors on certain decision of the Bombay High Court, namely Mahomed Bhai v. Dawood Bhai Co., A. I. R. (25) 1938 Bom. 405 : (I. L. R. (1938) Bom. 708). The question, however, which arose for decision in that case was as regards the propriety of the application regarded as an application for execution. The application suffered from the defect that the particulars of the property to be attached under Order 21, Rule 54 were not specified. The case was heard by Engineer J. The learned Judge granted an amendment of the application. Against his decision an appeal was taken under the Letters Patent which was heard by a Division Bench presided over by Beaumont C. J. In dismissing the appeal it was observed that the amendment was properly made. It was further observed that the application though defective was not a mere nullity merely because the application did not describe the property in detail. Reliance was also placed on the case of Gopal Parsharam v. Damodar Janardan A. I. R. (36) 1943 Bom. 353 : (210 I. C. 376). The question then before the Court was whether the application which prayed for rateable distribution but not against the same judgment-debtor was one in accordance with law. The question now before us did not arise in that case. Reference was also made to the case of Vallabhdas Narandas v. Kantilal G. Parekh, A. I. R. (34) 1947 Bom. 430 : (49 Bom. L. R. 420). Our attention was drawn to the observation of Kania J. to the effect that the prayer for the issue of a notice under Order 21, Rule 22 is not a mode of execution and is not a relief which a party asks as one awarded by the decree. It is a hurdle which the decree-holder has to cross before he can get the relief awarded by the decree. It asks the Court to extend the life of the decree. The observations do not touch the question which are now before us. On the other hand, they support the view that the prayer for the issue of a notice under Order 21, Rule 22 can in certain circumstances be regarded as a step-in-aid of execution of a decree. The observations were made in connection with a contention then raised that the prayer for issue of a notice under Order 21, Rule 22 was one which came within the purview of Order 21, Rule 11 (2) (j). It was this question which was decided by the learned Judge the decision being that a prayer for issue of a notice as aforesaid was not a relief which the decree-holder can claim under Order 21, Rule 11 (2) (j). The oases relied on behalf of the judgment-debtor do not, therefore assist us in deciding the question with which we have to deal.

7. In the present case, as already stated, the Court did act upon the applications presented on behalf of the decree-holder and the Court directed issue of the requisite notices in the proceedings which were taken by the decree-holder. For the reasons already given the conclusion follows that the proceedings on which reliance is placed on behalf of the decree-holder must be regarded as steps-in-aid of execution of the decree within Article 182 (5), Limitation Act, and extended the life of the decree.

8. Conceding that it is necessary that there should be an application for execution and the step which is relied on by the decree holder to extend the period of limitation, should be taken in such proceedings for execution before the same can be regarded as a step-in-aid of execution, we have to consider whether in the facts of the present case the application which was filed by the decree-holder on 26th June 1944 was an application for execution of the decree in accordance with law. The meaning of the expression 'in accordance with law' has been debated in many cases both here and else where. Mr. Ghose, appearing for the appellant, referred us, as already stated, to the case of Saday Chandra v. Pares Nath, 35 C. L. J. 82: (A. I. R. (9) 1922 Cal. 44). The observations of Mookerjee J. are that an application, even though it be deemed so defective as not to be an application for execution, must still be regarded as an application made to the proper Court in accordance with law to take some steps-in-aid of execution. In a later case, namely, the case of Pitambar Jana v. Damodar Guchait, 53 Cal. 664 : (A. I. R. (13) 1926 Cal. 1077) to which Mr. Sen appearing for the respondents drew our attention the following passage at page 673 is relevant:

'The expression 'in accordance with law' in Article 182 (5) should be taken to mean that the application though defective in some particulars was such upon which execution could be issued. If the omissions were such as to make it impossible for the Court to issue execution upon it, as was the case in Asgar Ali v. Trailokya Nath Ghose, 17 Cal. 631 (F.B.), where the list of properties to be attached and sold was not supplied with the application for execution, it should be held that such an application is not in accordance with law.'

In the same case Page J. observed as follows on page 678:

'The true view is that where an application for execution in substantial compliance with law is preferred to the Court, such an application will be effectual to stay the progress of limitation' whether the Court a limits or rejects or returns the application or allows such application to be amended. All the cases bearing on the point were reviewed by Sen J. in the case of Gopal Parsharam v. Damodar janardan, A. I. R. (30) 1943 Bom. 358. (210 I. C. 376). At page 358 the following statement of the law is made: 'The main test of an application for execution being in accordance with law would appear to be whether it is possible for the Court to issue execution upon it, that is whether it is within the power of the Court to grant the kind of relief asked for, though in the particular case the relief may not, on the merits, be granted, for example, owing to some finding on facts, not to the nature of the application itself.'

9. Bearing the principles so enunciated, let us see whether the prayers made in the application with which we are concerned, satisfy the teat laid down above. In the present case, the mode of execution prayed for was 'by attachment and sale of defendants' movables as per list'. No list of movables was however filed. The question is whether such an application for execution is one in accordance with law.

10. The content of an application for execution is to be found in Order 21, Rule 11(2) Civil P.C. Clause (j) requires the statement of the mode in which the assistance of the Court is required whether (ii) by the attachment and sale, or by the sale without attachment, of any property. (i) (iii) to (v) are omitted. Rule 12 requires an inventory of movables in cases where the judgment-debtor is not in possession. In such cases, the decree-holder is required by the rule to annex to his application an inventory of his movables with a sufficient description. There is no rule requiring the decree-holder to annex such an inventory of movables when the judgment-debtor is in possession. The provisions in Order 21, Rules 43, and 45 or Order 21A relate to the mode of execution and do not specify the material content of an application for execution. The relevant application cannot, therefore, be said to be a nullity. The application was no doubt a defective one which could have been amended, if necessary, at the appropriate time, that is, after the legal representative had shown cause and further steps in execution were necessary to be taken.

11. Mr. Sen appearing for the respondents referred us to the case of Abdul Rafi v. Maula Bux, 37 ALL 527 : (A. I. R. (2) 1915 ALL. 320). That case dealt with an application for execution directly coming within Order 21. Rule 12, Civil P. C. It did not decide the point now before us, The case of Birdhi Chand Dhondiram v. Bade Satheb A I. R. (14) 1927 Bom. 52 : (98 I. C. 941), to which Mr. Sen referred, merely held that Order 21, Rule 12 did not apply to a case where the decree was obtained against the legal representative of the judgment-debtor. In the present application there is no express statement whether the movables to be attached were in the possession of the judgment-debtor or not. It the movables to be attached were in the possession of the judgment-debtor, there is no rule which requires the decree-holder to specify these movables. It cannot, therefore, be said that the present application is so defective as to render it to be a nullity. Under one conceivable circumstance the application would be in compliance with the provisions of Order 21, Rule 11 (2) (j). That such an application is a valid application was decided in the case of Nathmal Mathuradas v. Balkrishna Gangabisan, A. I. R. (28) 1941 Nag. 152 : (194 I. C, 641).

12. On all these grounds my conclusion is that the application filed on 26th June 1944 and steps taken by the decree-holder in that application were steps-in-aid of execution in accordance with law. Limitation was therefore saved by these proceedings.

13. Assuming that the application which was presented on 26th June 1944 can be regarded as a step in aid of execution, a further question has got to be considered, namely, whether the steps taken by the decree-holler in those proceedings which were directed against one of the heirs of the deceased judgment-debtor saved limitation as against the rest.

14. This question was answered in the affirmative in the cases of Ramanuj Sewak Singh v. Hingu Lal, 3 ALL. 517 and Krishnaji Janardan v. Murrarrav, 12 Bom. 48, to which our attention was drawn on behalf of the appellants. The views taken in the above cases have been followed in later decisions, (see Rustomjee's Law of Limitation, 5th Edn., p. 1824 where the cases are collected).

15. The reasons given in the case of Ramanuj Sewak Singh v. Hingu Lal 3 ALL. 517, which have been followed in later decisions commend themselves to me and the application which was filed against one of the legal representatives of the deceased judgment-debtor saved limitation as against the other legal representatives of the said deceased judgment-debtor.

16. My conclusion, therefore, is that the present application for execution is not barred by limitation.

17. The result, therefore, is that this appeal is allowed. The judgment of this Court as also of the first appellate Court are set aside and that of the trial Court is restored. The appellant is entitled to her costs in all Courts. The hearing fee before us is assessed at three gold mohurs.

Guha J.

I agree.


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