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Parbati Devi & Ors Vs. Mahadeo Prasad Tibrewalla [1979] INSC 135 (31 July 1979)

UNTWALIA, N.L.

UNTWALIA, N.L.

SEN, A.P. (J)

CITATION: 1979 AIR 1915 1980 SCR (2) 156 1979 SCC (4) 761

ACT:

Limitation Act 1908, Art. 183, Limitation Act 1963, Art. 136 & Code of Civil Procedure 1908 (V of 1908), S. 48- Money suit based on mortgage Consent decree by Court-Part payments made-Legal representative substituted on death of judgment-debtor-Consent order on basis of settlement passed by Court-Execution field-if time-barred.

HEADNOTE:

In a suit for recovery of money on the basis of a mortgage, a consent decree was passed. When the judgment- debtors failed to pay the amount the mortgaged properties were ordered to be sold. The decree-holder assigned his interest under the decree in favour of the respondent and this was approved by the Court. A part-payment was made to the decree-holder. On the death of one of the judgment- debtors, his heirs and legal representatives (appellants in this appeal) were substituted. On June 17, 1953 a consent order was passed by the Court on the basis of the terms of settlement arrived at between the parties. According to the will left by one of the judgment-debtors his daughter was the universal legatee and his son-in-law was the sole executor. When the decree-holder sought execution of the decree a Single Judge of the High Court dismissed the application on the grounds-(1) that the terms of settlement between the parties recorded on 17th June, 1953 were entirely different from the original decree and had the effect of superseding it; (2) that the fact of the death of one of the judgment-debtors was not recorded and his heirs were not substituted and (3) execution was barred under s. 48 of the Code of Civil Procedure. On appal, a Division Bench of the High Court reversed the order of the Single Judge.

Dismissing the appeal,

HELD: 1. There was no bar of limitation in the execution instituted in 1965. At no point of time the mortgage decree had been fully satisfied. It is not a case in which the execution was barred either under s. 48 CPC or Art. 183 of the Limitation Act, 1908. Execution was not barred under Art. 136 of the Limitation Act, 1963. [159D]

2. There is no force in the contention that it was already barred when the 1963 Act came into force. All through steps had been taken by the decree holder to enforce the decree. When the order of sale of the mortgaged properties was passed in 1929 some payments were made and finally accounts were settled in 1934. Thereafter the mode of execution proceeded by appointment of a receiver. Some money was paid in 1939. In 1945 the heirs and legal representatives of one of the deceased judgment-debtors were substituted. Appellant no 1 was allowed to take steps for the satisfaction of the decree; but nothing was done. A settlement was again arrived at in 1953 for satisfaction of the decree but on the judgment-debtor's failure to comply with the terms of the settlement the present proceedings were started well within 12 years. [159E-H] 157

3. The daughter of the second judgment-debtor was competent to represent the estate of her father. Even if her husband who was the sole executor of the will was not substituted, execution was not defective. [160B] The Andhra Bank Ltd. v. R. Srinivasan and Others [1962] 3 S.C.R. referred to.

4. The settlement of 17th June, 1953 was not an altogether renovation of the old decree. All that was done was that the amount due was quantified and the mode of satisfaction was prescribed giving opportunity to the judgement-debtors to satisfy the decree by conveying one of the two mortgaged houses. The judgment-debtors did nothing.

Though the terms of settlement were silent with regard to what was to happen on failure to satisfy the decree, it is legitimate to assume that the parties intended that the decree holders would be entitled to realise the dues by execution of the original mortgage decree. The order of 17th June, 1953 passed by the Court had not the effect of passing a new decree in substitution of the old one. It had merely the effect of giving facility to the judgment debtors for the satisfaction of the decretal dues. On their failure to do so they were liable to be proceeded with in execution of the original mortgage decree. [160C-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2494 of 1969.

From the Judgment and Decree dated 24-1-1969 of the Calcutta High Court in Appeal from Original Order No. 111/66.

D. N. Mukherjee and N. R. Chaudhary for the Appellants.

P. K. Chatterjee and Sukumar Ghosh for the Respondent.

The Judgment of the Court was delivered by UNTWALIA, J. This is an appeal by certificate filed by the judgment-debtors from the decision of the Calcutta High Court given in appeal from that of a learned single Judge of that Court. The facts of the case clearly demonstrate the fighting attitude of the judgment-debtors to gain time for the satisfaction of the decree.

On August 15, 1925 one Indera Chand Kejriwal instituted on the original side of the Calcutta High Court a suit on the basis of a mortgage against Ram Chander Saragogi, Sewbux Saraogi and Tejpal Saraogi for recovery of Rs. 38,000/- as principal and Rs. 6,082.8 annas as interest. By an equitable mortgage the property mortgaged consisted of two houses (1) No. 126, Harrison Road and (2) No. 13/2, Syed Salley Lane in the town of Calcutta. On November 26, 1926 a consent decree was passed for a sum of Rs. 41,000/- together with interest thereon @ 6.3/4% per annum. On failure of the judgment- debtors to pay the amount the mortgaged properties were to be sold. On 3rd of January, 1929 it was ordered and 158 decreed that the mortgaged property be sold. On 16th April, 1934 Indera Chand Kejriwal by a deed of assignment assigned his interest in the decree to Mahadeo Prasad Tibrewalla, the respondent in this appeal. On the application of the assignee decree-holder an order was made on the 8th May, 1934 substituting his name in place of the original decree holder and recording some terms of settlement between him and the judgment-debtors. The amount with interest quantified on that date was Rs. 60,023.12 annas which was to carry an interest of 6.3/4% per annum. Subsequently on an application of the decree holder one Anandilal Poddar was appointed on the 14th June, 1938 a receiver of rents and profits of the mortgaged properties. A sum of Rs. 10,000/- was paid to the decree holder on the 7th September, 1939 towards part satisfaction of the decree. On the death of Ram Chander Saraogi, one of the judgment-debtors, by order dated the 7th August, 1945 Smt. Parbati Devi, Ananta Kumar Saraogi and Suraj Kumar Saraogi, his heirs and legal representatives, were substituted. They are appellant Nos. 1 to 3 in this appeal.

No further payment was made to the decree holder and eventually a consent order was passed by the Court on the 17th June, 1953 on the basis of the terms of settlement arrived at between the parties which were incorporated in the letter written by the Solicitor of the judgment-debtors to the Solicitor of the decree holder. The terms of settlement are quoted in full in the appellate judgment of the High Court. The salient terms of the settlement may be stated as follows:- (1) That the total dues on the date came to Rs. 1,10,000/-.

(2) That Shri Anandilal Poddar, the receiver was to pay Rs. 35,000/-.

(3) That a sum of Rs. 40,000/- was to be paid by conveying premises No. 13/2 Syed Salley Lane to the decree holder, and, (4) That a sum of Rs. 35,000/- was to be paid in cash by raising money by execution of an another mortgage of premises No. 126, Harrison Road.

Anandilal Poddar paid the sum of Rs. 35,000/-. But nothing further was done by the judgment-debtors pursuant to the settlement arrived at on the 17th June, 1953. Sewbux Saraogi, one of the judgment-debtors, died leaving a Will in which the universal legatee was his daughter Smt. Kapurbai and the sole executor appointed therein was Motilal Jhunjhunwalla, husband of Kapurbai. On the 7th 159 June, 1965 the respondent affirmed a tabular statement for execution of the decree. A learned single judge of the Calcutta High Court dismissed that application mainly on the grounds-(1) that the terms of bargain between the parties recorded on the 17th June, 1953 were entirely different from the original decree and had the effect of superseding it;

the former decree, therefore, was not executable; (2) that the factum of the death of Sewbux Saraogi was not recorded and his heirs were not substituted in the tabular statement.

In passing, the learned single Judge also expressed the view that the execution was barred under section 48 of the Code of Civil Procedure. On appeal by the decree holder the Appellate Bench has reversed the decision of the learned single Judge on all the points. Hence this appeal by the judgment-debtors.

We shall first dispose of the point of limitation. From the facts stated above it is abundantly clear that there was no bar of limitation in the present execution instituted in the year 1965. At no point of time the mortgage decree had been fully satisfied. All through steps were being taken and it was not a case where the execution was barred either under section 48 of the Code of Civil Procedure or Article 183 of the Limitation Act 1908. It was conceded and rightly so by learned counsel for the appellants that the execution was not barred under Article 136 of the Limitation Act, 1963. But the submission was that it was already barred when that Act came into force on the 1st of January, 1964 under Article 183 of the old Act. We have no difficulty in rejecting the argument of limitation. All through steps had been taken by the decree-holder. The case was not lying dormant at any point of time for a period of more than 12 years. When in the year 1929 there was an order for sale of the mortgaged properties it appears some payments were made and finally accounts were settled in the year 1934.

Thereafter the mode of execution proceeded by appointment of a receiver. A sum of Rs. 10,000/- was paid in the year 1939.

In the year 1945 steps were taken for substitution of the heirs and legal representatives of Ram Chander Saraogi, one of the deceased judgment-debtors. Parbati Devi, appellant No. 1, was allowed to take some steps for the satisfaction of the decree. But nothing was done. Eventually a settlement was again arrived at on the 17th June, 1953 for satisfaction of the decree but on the judgment-debtors' failure to fulfil the settlement the present proceedings were started by filing the tabular statement on the 7th of June, 1965 well within 12 years of the 17th June, 1953. The point of limitation raised on behalf of the appellants, therefore, must be rejected.

160 A statement had been made in the tabular statement that Sewbux Saraogi, one of the judgment-debtors, was dead.

Kapurbai, his daughter along with others were sought to be substituted in his place. Later on it transpired that she was a universal legatee under a will executed by Sewbux Saraogi. She was, therefore, undoubtedly a legal representative competent to represent the estate of Sewbux Saraogi. Even in absence of the substitution of Motilal Jhunjhunwalla, the sole executor of the will, the execution was not defective. Reference in this connection may be made to the decision of this Court in the case of The Andhra Bank Ltd. v. R. Srinivasan and Others, (1) decision relied upon by the Appellate Bench.

Coming to the third and the last point it may be mentioned that the settlement arrived at on the 17th June, 1953 was not an altogether renovation of the old decree. The amount due was quantified and the mode of satisfaction was prescribed giving liberty to the judgment-debtors to satisfy the decree by conveying one of the two mortgaged houses and by paying a sum of Rs. 35,000/- in cash by raising the money by mortgage of the other house. The judgment-debtors did neither. The terms of settlement were silent as to what was to happen on the failure of the judgment-debtors to satisfy the decree in the manner agreed upon. In such a situation it was quite legitimate to assume that the parties intended that the decree holders would be entitled to realise the dues by execution of the original mortgage decree. Reading the terms of settlement in the context of the letter of the Solicitor of the Judgment-debtors it is plain to us that the order dated 17th June, 1953 had not the effect of passing a new decree in substitution of the old one. It had merely the effect of giving facility to the judgment-debtors for the satisfaction of the decretal dues. On their failure to do so they were liable to be proceeded with in execution of the original mortgage decree.

For the reasons stated above, we hold that there is no substance in any of the points arising in this appeal. We accordingly dismiss this appeal with costs.

N.V.K. Appeal dismissed.

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