Prem Lata Agarwal Vs. Lakshman Prasad
Gupta & Ors  INSC 102 (23 April 1970)
23/04/1970 RAY, A.N.
CITATION: 1970 AIR 1525 1971 SCR (1) 364 1970
SCC (3) 440
Limitation Act (9 of 1908), s' 15 and Art.
182 and Code of Civil Procedure (Act 5 of 1908), s. 48-Scope of.
The first respondent, in 1938, obtained a
decree against the appellants branch of a joint family, and in 1941, commenced
proceedings for the execution of the decree in Allahabad.
Meanwhile, in 1939, a final decree had been
passed in a suit for partitioning the family properties among the members of
the joint family, and the matter was taken up in appeal to the High Court of
Allahabad. Certain orders were passed by the High Court which were construed by
the executing court in the years 1941 and 1942 as stay orders of the execution
proceedings commenced by the respondent. The High Court passed a final decree
in the partition suit in December 1949, but did not immediately discharge the
Receivers who were appointed during the pendency of the suit. The respondent
revived the execution proceedings in May 1,950 and a mill belonging to the
joint family was attached and sold 'but the sale was set-'aside in 1955 as the
appellant's branch applied for relief under the U.P. Encumbered Estates Act,
1934. Thereafter, in' 1956, the decree in favour of the respondent was
transferred to Madras High Court for execution and on 13th August, 1956, the
respondent filed an execution application, for attainment of certain properties
which fell to the appellant's share.
High Court of Madras in Letters Patent Appeal
held that the execution application was in time. On the question whether the
execution application dated 13th August, 1956, was in time, or barred by
HELD : (i) The respondent bonafide pursued
execution against the mill and since his good faith was not questioned before
the Appellate Court it was not open to the appellant to do so in this Court.
[370 A, C] (ii) It was not possible to spell out any order of partial stay on
the facts and circumstances of the present case.
The facts that the Receivers were not finally
discharged in 1949 when the final decree by the High Court was passed in the
partition suit, and the understanding of the parties and the executing court that
execution was stayed by the High Court, indicate that the stay was in
Therefore, the respondent could not have
applied earlier 'for execution with respect to other property of the joint
family either at Allahabad or at Madras. [369 A-C, D-G] (iii) Further, when the
execution proceedings were revived in May 1950 the executing court held that
execution proceedings had been stayed till December 1949 and the appellant did
not challenge the order of attachment and sale of mill on-the ground that the
proceedings were barred by limitation. Therefore, the appellant was barred by
the principle of res judicata from questioning the order of May 1950 on the
ground of limitation. [371 D-E] 365 (iv) Section 15 of the Limitation Act
states that in computing the period of limitation prescribed the time of the
continuance of the injunction staying execution shall be excluded. The word
"prescribed" would apply not only to Limitation Act but also to the
limitation prescribed in general statutes like the Civil Procedure Code.
Section 48 of the Code, as it then stood, laid down 12 years as the maximum
limit of the period of execution but it did not prescribe the period within
which each application for execution was to be made. Such an application was to
be made within three years from the dates mentioned in third column of Article
182 of the Limitation Act, 1908.
Therefore, an application for execution of a
decree must first satisfy Article 182 and it would then have to be found out as
to whether s. 48 of the Civil Procedure Code operated as a further bar. [370
C-H; 371 A-B] (v) Since the execution proceedings were stayed in the present
case, the 'respondent was entitled to claim its benefit of s. 15 of the
Limitation Act in respect of the period of stay of the execution of his decree,
from June 194.1 till end of 1949; and since the execution application of 1950
was finally disposed of in 1955, the present application filed in 1956 was
within time. [372 E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 350 of 1970.
Appeal by special leave from the judgment and
order dated March 21, 1966 of the Madras High Court in O.S. Appeal No. 11 of
B. R. L. lyengar, M. V. Goswami, S. R.
Agarwala, A. T. M. Sampat and E. C. Agrawala, for the appellant.
U. P. Singh, Santok Singh, Ugra Shankar
Prasad and Shiva Pujan Singh, for respondent No. 1.
S. P. Sinha and M. I. Khowaja, for
respondents Nos. 2 and 3.
The Judgment of the Court was delivered by
Ray, J. This appeal is by special leave from the judgment dated 21 March, 1966
of the Madras High Court dismissing the appeal preferred by the appellant
against the decree holders' application for execution of the decree.
The appellant is one of the judgment-debtors
brought-on record as legal representative of a deceased judgment debtor Lala
Baijnath Prasad. Respondent No. 1 Lakshman Prasad Gupta was one of the
plaintiffs. Pratap Chand and Basudeb Prasad respondents Nos. 2 and 3
respectively are the sons of a judgment-debtor Girdharilal Agarwala.
The plaintiff respondent Lakshman Prasad
Gupta was married to the sister of Lala Bansilal. Bansilal belonged to the
joint family which consisted inter alia of the appellant's father. There were
five 366 branches of the said joint family of the judgment-debtors, three
whereof were at Banaras, Calcutta and Naini and the other two were the branches
of the descendants of Mohanlal and of Lala Baijnath Prasad, father of the
appellant, respectively. The said joint family had valuable properties in and
around the town of Arrah in Bihar. There are alleged to be valuable properties
of the joint family also at Allahabad, Banaras, Bombay, Calcutta and Madras.
Sometime in the year 1926 Lala Pratap Chand,
one of the descendants of Mohanlal who was a grand-uncle of Lala Bansilal filed
a partition suit in the court of the Subordinate Judge at Allahabad. A
preliminary decree was passed in the said partition suit on 14 February, 1927.
An appeal was preferred and it was dismissed. An amicable settlement was
arrived at in the partition suit on 13 January, 1931 for partition of the
properties into five equal lots and allotment of the shares. Thereafter a
Commissioner was appointed in the partition suit to go into accounts and
prepare five lots. The branches inter se raised disputes as to liability for
loans alleged against the joint family. The Commissioner prepared his report on
18 May, 1936. Final decree was passed on 13 January, 1939.
An appeal was preferred against the said
final decree in the partition suit to the High Court at Allahabad. The appeal
was disposed on 6 December, 1949.
The plaintiff Lakshman Prasad Gupta and six
others filled suit No. 76 of 1937 in the Court, of the First Subordinate Judge
at Arrah in Bihar and obtained a decree on 20 July, 1938 for Rs. 18,540 and for
costs Rs. 1,840/4/aggregating Rs. 20,380/4/-. This decree was against
Banwarilal and other members of the joint family to which the appellant's
father belonged. The decree was transferred from Arrah to the Court of the
Civil Judge at Allahabad where. on 2 June, 1941 the decree-holder commenced
execution proceedings marked as Execution Petition No. 38 of 1941. In that
execution petition the decree-holder prayed for attachment and sale of Shri
Krishna Desi Sugar Works at Jhusi known as the Jhusi Sugar Mills in the
District of Allahabad which belonged to the joint family.
The execution proceedings were according to
the decreeholders stayed under orders of the Allahabad High Court and after the
stay order was vacated the execution proceedings were revived on 13 May, 1950.
The jhusi Sugar Mill was attached on 1 1 July, 1952 and it was sold on 19
February, 1955. The sale was set aside on 31 May, 1955 pursuant to objections
of the judgment-debtors that the Jhusi Sugar Mill could not be sold because of
the provisions of the U.P.
Encumbered Estates Act, 1934. It may be
stated here that some time in the month of September, 1935 367 Baijnath Prasad
filed an application before the Collector of Allahabad for protection and
relief under the U.P.
Encumbered Estates Act of 1934 and it was
registered as Encumbered Estates, Suit No. 25 of 1935.
Thereafter the decree-holders on 17 March,
1956 made an application in the Arrah Court for transfer of the decree.
On 6, June, 1956, the Subordinate, Judge, at
Arrah transferred the decree to the Madras High Court. On 13 August, 1956 the
decree-holders, filed in the Madras High Court an application for attaching the
properties of the joint family. This application in the Madras High Court is
the subject matter of the present appeal.
The matter-was heard first by the Master of
the High Court of Madras who held that the application for execution was barred
by limitation. An appeal from the decision of the Master was heard by the
learned Single Judge of the Madras High Court who held that the application was
not within the mischief of bar of limitation Thereafter Letters Patent Appeal
was heard by a Division Bench of the Madras High Court. The appeal is from the
Bench decision upholding the judgment of the learned Single Judge.
Before the Master of the Madras High Court
the contention on behalf of the judgment debtors was that the decree was passed
on 20 July, 1 9 3 8 and therefore the execution petition filed on 1 3 August,
1956 was barred by limitation.
The decree holders on the other hand
contended that the execution of the decree which commenced on 2 June, 1941
before the Civil Judge at Allahabad was stayed till the end of 1949 and was
revived on 13 May, 1950 and finally disposed on 31 May, 1955, and, therefore,
the execution petition filed on 13 August, 1956 was within time. 'he Master
held that the decree holders had failed to prove as to from what point of time
the execution of the decree was stayed pursuant to the order of the Allahabad
High Court and also the time when the stay was vacated. The application for execution
was therefore found by the Master of the Madras High Court to be barred by
The learned Single Judge of the Madras High
Court referred to the revival of execution proceedings before the Civil Judge
at Allahabad on 13 May, 1950 and also the finding of the Civil Judge at
Allahabad who in passing the final order on 31 May, 1955 setting aside the sale
of the Jhusi Sugar Mill stated that the execution proceedings were stayed by
orders of the High Court at Allahabad., The Civil Judge at Allahabad set aside
the Sale because of the mandatory provisions of sections 7(2) and 9(5) of the
U.P. Encumbered Estates Act. The Madras High Court placed reliance on Exhibits
P-2, P-3 and P-3A on the question of stay of execution proceedings. It may also
be stated here that the judgment 3 68 debtor did not dispute the translation of
those Exhibits P-3 and P-3A. The Exhibits set out the orders of the Civil Judge
at Allahabad. Exhibit P.-2 is the judgment dated 31 May, 1955 passed by the
Civil Judge setting aside the sale of the Jhusi Sugar Mill. Exhibits P-3 and
P-3A comprise the orders passed by the Civil Judge. The three relevant orders
in Exhibits P-3 and P-3A are dated 18 August, 1941, 23 August, 1941 and 30
August, 1941 in the said execution proceedings.
The order dated 18 August, 1941 was to the
effect that the receivers were to be informed about the execution proceedings
and their objections, if any. The receivers were the receivers in the partition
suit No. 4 of 1926. The said order further recited that the orders of the High
Court at Allahabad in the, partition suit were also received in the executing
court. The order dated 23 August, 1941 recited that the execution application
of the decree holder was presented in the presence of the lawyers of the decree
holder and the receivers. Further, the order was that the request for
permission should be submitted in suit No. 4 of 1926 namely, the partition suit
of the defendants judgment debtors. The order dated 30 August, 1.941 recorded
by the Civil Judge at Allahabad was inter alia as follows :"The
proceedings remain stopped on account of the injunction of the High Court.
Hence it was ordered that receivers should be informed accordingly. Further
steps will be taken after getting permission .
These orders are relied on by the decree
holder to substantiate the case of stay of execution proceedings.
The contention which was advanced before the
Madras High Court and repeated in this Court was that there was no absolute
stay of the execution of the decree. It was amplified to mean that the
execution proceedings before the Civil Judge at Allahabad related only to one
property and therefore the decree holders would not be entitled to claim
benefit of exclusion of time by reason of partial stay of execution proceedings
at Allahabad. The Madras High Court rightly found that there was no evidence
that the judgment debtors were possessed of other properties in Allahabad where
the decree was being executed. The Madras High Court rightly held that the
decree holders were restrained by injunction issued by the Allahabad High Court
from executing the decree and were therefore entitled to claim the benefit of
section 15 of the Limitation Act in respect of the period of stay of execution
of the decree.
It was contended-by counsel for-the appellant
that the decree holder could start execution proceedings in Madras or in other
States where the judgment debtors had properties.
Simultaneous 3 6 9 execution proceeding in
more places than one is possible but the power is used sparingly in exceptional
cases by imposing proper terms so that hardship does not occur to judgment
debtors by allowing several attachments to be proceeded with at the same time.
In the present case, however, the important features are that a partition suit
was instituted in the year 1926 among the defendants. and receivers were
appointed of the properties. The judgment of the Allahabad High Court dated 6
December, 1949 disposing the appeals filed by the parties in the partition suit
directed inter alia "that the parties will be put in possession of the
immoveable properties at once, but the two receivers will be legally discharged
only after they have accounted for the period they were in charge of the
properties". Counsel for the decree holder rightly relied on this portion
of the judgment of the Allahabad High Court that this would fortify the
construction that there was stay of execution of the decree.
In the present case, the effect of the order
passed by the Allahabad High Court was recorded by the Civil Judge, Allahabad
in his judgment dated 31 May, 1955 to amount to stay of execution proceedings..
The order of the Civil Judge, Allababad dated 30 August, 1941 was that
"proceedings remain stopped on account of the injunction order issued by
the High Court. in the Madras High Court the parties proceeded on thee basis of
the order as corded by the Civil Judge at Allahabad. The order indicates that
the stay of execution proceedings was in unqualified terms, namely, that the
execution proceedings were stopped. It is not possible to spell out any order
of partial stay in the facts and circumstances of the present case as was
contended by counsel for the appellant. The order is on the contrary to the
effect that there was an absolute, stay of execution proceedings. It is,
therefore, manifest that the execution proceedings before the Civil Judge at
Allahabad were stayed and the decree holder was rightly found by the Madras
High Court to the benefit of exclusion of time during which the execution, was
stayed, Though the judgment debtors did not question before the Master of the
Madras High Court the bona fides of the decree holder in prosecuting the
execution proceedings, that contention was advanced before the learned Single
Judge of the Madras High Court. The learned Single Judge of the Madras High
Court held that the decree holders commenced execution proceedings for sale of
the Jhusi Sugar Mill for realisation of the decretal amount but the attempt of
the decree holder failed because of the objections of R the judgment-debtors
under the provisions of the U.P. Encumbered Estate Act. The sale was set a side
by reason of the mandatory provisions of the statute. The learned Single Judge
of the Madras High Court rightly held that the-decree holders prosecuted the
exe-370 cution case in good faith and with due diligence and were entitled to
protection under section 14 of the Limitation Act.
Before the Division Bench of the Madras High
Court no argument was advanced touching the bona fides or good faith with which
the execution proceedings were carried on. Counsel for the appellant repeated
the contention that the decree holders were guilty of lack of good faith and
diligence. It is not open to the judgment debtors to advance that contention
having abandoned the same before the Division Bench of the Madras High Court.
We are furthermore of opinion that the conclusion of the learned Single Judge
of the Madras High Court on that point is correct.
The other question which arise before the
Madras High Court was whether section 15 of the Limitation Act, 1908 would
apply to limitation prescribed in statutes other than the Limitation Act.
Section 48 of the Code of Civil Procedure until its amendment on the passing of
the Limitation Act, 1963 enacted that the decrees of the Civil Courts were to
be executed within 12 years and not after that. The present case is governed by
section 48 of the Code of Civil Procedure as it stood prior to the deletion of
that section along with the passing of the Limitation Act, 1963. In section 15
of the Limitation Act, 1908 it is enacted that in computing the period of
limitation prescribed for any suit or application for a decree execution of
which has been stayed by injunction, the time of the continuance of the
injunction shall be excluded. In the Madras High ,Court it was argued that the
word 'prescribed' occurring in section 15 of the Limitation Act could apply
only to cases of limitation prescribed by the First Schedule to the Limitation
Act, 1908 with the result that the benefit of exclusion of time by reason of
operation of stay could not be availed of in cases of limitation prescribed by
section 48 of the Code of Civil Procedure. The Madras High Court relied on the
decision in Kandaswami Pillai v. Kannappa Chetty(1) which held that the
expression 'prescribed' in section 15(1) of the Limitation Act would apply not
only to limitation prescribed in the First Schedule to the Limitation Act but
also to limitation prescribed in general statutes like the Code of Civil
Procedure. That is the correct statement of law and counsel for the appellant
did not advance any contention to the contrary. It may, however, be stated that
the effect of section 48 of the Code of Civil Procedure is not to supersede the
law of limitation with regard to execution of decrees. The Limitation Act
prescribes a period of limitation for execution of decrees.
Section 48 of the Code of Civil Procedure
dealt with the maximum limit of time provided for execution, but it did not
prescribe the period within (1) (1951) 2 M.L.J. 668 3 7 1 which each
application for execution was to be made. An application for execution was to
be made within three, years from any of the dates mentioned in the third column
of Article 182 of the Limitation Act 1908. An application for execution of a
decree would first have to satisfy Article 182 and it would also have to be
found out as to whether section 48 of the Code of Civil Procedure operated as a
In the present case, there was stay of
execution proceedings. On 13 May, 1950 the execution proceedings were revived.
The judgment debtors did not challenge the order dated 13 May, 1950. The
judgment debtors impeached the sale only on a ground covered by the U.P.
Encumbered Estates Act, 1934. The judgment debtor further in impeaching the
sale of Jhusi Sugar Mill did not advance before the Civil Judge at Allahabad
any contention that any of the orders,of the Civil Judge at Allahabad reviving
the execution proceedings, attaching the Jhusi Sugar Mill and directing the
sale of the Sugar Mill was barred by limitation. The principle of res judicata
applies to execution procedings. The judgment debtors in the present case did
not raise any objection as to limitation in regard to execution of the decree
before the Civil Judge at Allahabad. On the contrary the judgment debtors asked
for setting aside the sale on the basis of revival of execution proceedings.
The revival of execution was not challenged and the judgment debtors are
thereby barred by the principle of rem judicate from questioning directly or
indirectly the order dated 13 May, 1950 reviving the execution proceedings.
When the appellant made the application for
special leave, the appellant referred to an affidavit affirmed by the
appellant's father on 12 February, 1957 in the execution proceedings in the
Madras High Court. The copy of the said affidavit annexed to the petition for
special leave in this Court is in seven paragraphs. In paragraph 6 of the said
affidavit it is alleged that the decree is against 5 branches and the plaintiff
Lakshman Prasad in collusion with the other branches excluded the other four
branches and chose to proceed only against the appellant's branch though the
other four branches were possessed of vast properties. The further allegations
in paragraph 6 of the said affidavit are that the object of the plaintiff is to
harass only one branch and the application is not bonafide. The plaintiff
respondent in answer to the petition for special leave affirmed an affidavit in
this Court that paragraph 6 in the said affidavit was an interpolation and was
not at all in existence in the affidavit filed in the Madras High Court.
The plaintiff respondent ti obtained a
photostat copy of the said affidavit filed in the Madras High Court. The
photostat copy established that paragraph 6 was not there and further that the
affidavit was affirmed at Allahabad bad on 12 February, 1957 and not at Madras.
Furthermore, the 372 affidavit was explained to the deponent Baijnath Prasad as
will appear from the photostat copy as annexed to the petition whereas in the
copy annexed to the petition for special leave there was no such statement. It
is a serious matter that the appellant asked for relief on the basis of false
copies of affidavits. An explanation was suggested in the affidavit-of the
appellant that the copy was annexed in accordance with the draft that had been
sent by the Madras lawyer. It is beyond comprehension as to how an incorrect
copy would be sent by the Madras lawyer. Counsel for the appellant realised the
gravity of the situation and conceded that the matter should be proceeded, with
on the basis as it paragraphs did not exist. The appellant is guilty of lack of
uberrimae fidei. We have therefore proceeded on the basis that paragraph 6 did
not exist in the copy of the said affidavit.
The Madras High Court upheld the order of the
learned Single Judge entitling the decree holder to the exclusion of the period
spent in prosecuting prior infructuous execution proceedings before the Civil
Judge at Allahabad. The decree holder was allowed to proceed with the execution
proceedings and t he Madras High Court remitted the matter to the Master to
consider the questions indicated in the judgment and the judgment debtors were
allowed to raise objections to the executability of the decree apart from that
of limitation as indicated in the judgment of the learned Single Judge. We are
of opinion that the Madras High Court is right in holding that the decree
holder is entitled to the benefit of exclusion of time during which the
execution proceedings were stayed by the order of the Allahabad High Court and
the decree holder proceeded with the said execution proceedings in good faith
and with the deligence.
For these reasons we are of opinion that the
The appellant will pay the costs to the
Y.P. Appeal dismissed.