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Maharaja Rameswar Singh Vs. Tirpit Singh - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in13Ind.Cas.140
AppellantMaharaja Rameswar Singh
RespondentTirpit Singh
Cases Referred and Rakhaldas Majumdar v. Jogendra Narayan Marumdar
Excerpt:
execution of decree - application for execution--bar imposed by judgment-debtor--removal of bar--subsequent application to be treated as one in continuation of previous application--'review of judgment'--limitation act(xv of 1877), schedule ii, article 179 clause (3)--bengal tenancy act (viii of 1885), schedule iii, article 6, clause (3). - .....was that the decree as originally drawn up was materially altered. on the 26th august 1905, the decree-holder, not aware, that the decree had been varied in this manner without notice to him, made the second application for execution of the original decree. the judgment-debtor forthwith objected that the decree whereof execution was sought had ceased to exist, and that the only decree of which the decree-holder could possibly take out execution at that stage was the decree as amended on the 25th february 1905. the result was that the decree-holder found it impossible to carry on the execution proceeding and the application was dismissed. the decree-holder, thus apprised of the fact that the decree had been amended, applied on the 29th january 1906 for a review of the order for.....
Judgment:

1. This appeal is directed against an order by which the Court of appeal below, in reversal of the order of the original Court, has refused an application for execution of a decree as barred by limitation under Article 6 of Schedule III of the Bengal Tenancy Act. The decree was for rent, for a sum less than Rs. 500, and was made on the 23rd May 1904. The first application for execution was made on the 7th October 1904, and was dismissed for default on the 9th Marchl905. The judgment-debtor had, in fact, on the 3rd October 1904 applied for amendment of the decree. This application was heard ex parte and allowed on the 25th February 1905. The result was that the decree as originally drawn up was materially altered. On the 26th August 1905, the decree-holder, not aware, that the decree had been varied in this manner without notice to him, made the second application for execution of the original decree. The judgment-debtor forthwith objected that the decree whereof execution was sought had ceased to exist, and that the only decree of which the decree-holder could possibly take out execution at that stage was the decree as amended on the 25th February 1905. The result was that the decree-holder found it impossible to carry on the execution proceeding and the application was dismissed. The decree-holder, thus apprised of the fact that the decree had been amended, applied on the 29th January 1906 for a review of the order for amendment. On the 30th June 1906 the review was granted and the original decree was restored. The present application for execution was made on the 20th January 1909. Exception was taken by the judgment-debtor on the ground that as more than three years had elapsed from the 23rd May, 1904, it was not competent to the decree-holder to execute the decree. The Courts below have taken divergent views upon this question and the District Judge has given effect to the objection of the judgment-debtor.

2. On behalf of the decree-holder, it has been argued by the learned Government Pleader that the application is not barred from two distinct points of view; namely, first that the application made on the 20th January 1909 may be treated in substance as an application in continuation of the application of the 26th August 1005, the proceedings on which were suspended by the objection of the judgment-debtor that the decree of which execution has sought had been varied and was no longer capable of execution; secondly, that under Clause (3) of Article 6 of Schedule III of the Bengal Tenancy Act time ought to run from the 30th June 1906 when his application for review was granted.

3. In support of the first contention our attention has been drawn to the decision of the Judicial Committee in the case of Shaikh Kmaruddin v. Jawahir Lal 1 C.L.J. 381 : 27 A. 334 : 15 M.L.J. 258 : 9 C.W.N. 601 : 2 A.L.J. 397 : 7 Bom. L.R. 433 where the principle is recognised that when a decree-holder has found himself unable to proceed with an application for execution by reason of some bar imposed at the instance of the judgment-debtor or any other person a subsequent application by the decree-holder of the same scope and character may be treated as one in continuation of the previous application if such subsequent application has been presented after the bar which interrupted the previous proceeding has been removed Amulya v. Preonath 7 Ind. Cas. 886 and Kedarnath v. Prodyot Kumar 11 Ind. Cas. 48 : 14 C.L.J. 610. It cannot be disputed that this principle is applicable to cases of applications for execution of decrees under the rent law. Chandra Pradhan v. Gopi Mohun 14 C. 385 and Baikanta Nath v. Aughore Nath 21 C. 387. No doubt, inspite of the application of this doctrine a question may arise, as in the cases of Raghunandun Pershad v. Bhugoo Lall 17 C. 268 and Sarup Ganjan Singh v. Robert Watson & Co. 6 C.W.N. 735 whether there was, as a matter of fact, such a bar as made it impossible for the decree-holder to proceed with earlier application. In the case before us, however, upon the facts stated, there is no room for controversy that proceedings on the application of the 26th August 1905 were arrested by reason of the objection of the judgment-debtor that the decree of which execution was sought had been materially varied. This made it obligatory upon the decree-holder, if he desired to proceed on the basis of his application, to have the bar removed. He speedily took steps to have the order reviewed which had been made in his absence. His application was successful and the previous order was re-called on the 30th June 1906. Consequently, the present application may well be treated as one made in continuation of the application of the 26th August 1905. In cases of this description, we must look to the substance rather than to the form of the proceedings, and no weight can be attached to the circumstance that the present application does not on the face of it purport to be one in continuation 6f the previous application. From this point of view, the order of the Court below cannot be supported.

4. In support of the second contention reference has been made to the case of Kali Prosanna Bose v. Lal Mohan Guha 2 C.W.N. 219 : 25 C. 258 where it was ruled that a narrow construction should not be placed upon the expression 'review of judgment' in Clause (3) of Article 179 of the second Schedule of the Indian Limitation Act of 1877. In fact, the learned Judges held that an amendment of a decree in a material particular might well be treated as a review of the decree which expression is treated in the Code of Civil Procedure as interchangeable with the expression 'review of judgment.' If this principle is adopted, there is no room for controversy that time ought to run from the 30th June 1906. The application made by the-judgment-debtor on the 3rd October 1904 might well be treated as an application for review of the decree and the order of the 25th February 1905 by which the amendment was allowed might be treated as equivalent to grant of an application for a review of the original decree. Subsequently, there was a genuine application for review of judgment by the decree-holder on the 26th January 1903. The application was granted on the 30th June 1903. Consequently, without unduly stretching the language used in Clause (3) of Article 6 of Schedule III of the Bengal Tenancy Act, it may be said that there has been a review of judgment and that time consequently runs from the date of the decision passed on the review. We are not unmindful that the decision in Kali Prosanna Basu v. Lal Mohan Guha 27 A. 575 has sometimes been questioned Ahsanullah v. Dukkhini Din 27 A. 575 and Rakhaldas Majumdar v. Jogendra Narayan Marumdar 3 Ind. Cas. 391 : 10 C.L.J. 467. But, notwithstanding the doubt sometimes expressed as to the correctness of that decision, it is clear that in the case before us there was real application for a review of judgment, and that Clause 3 of Article 6 of Schedule III does not limit the case to an application for review of judgment by a judgment debtor any more than decree-holder; where, therefore, as here, there has been a review of judgment, the case may well be treated as governed by that Article. From the second point of view also, it is thus clear that the order cannot be supported.

5. The result is that this appeal is allowed, the order of the District Judge discharged and that of the Court of first instance restored. This order will carry costs both in this Court and in the Court of Appeal below. We assess the hearing fee in this Court at two gold mohurs.


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