Anandilal & ANR Vs. Ram Narain
& Ors [1984] INSC 106 (10 May 1984)
SEN, A.P. (J) SEN, A.P. (J) ERADI, V.
BALAKRISHNA (J)
CITATION: 1984 AIR 1383 1984 SCR (3) 806 1984
SCC (3) 561 1984 SCALE (1)943
ACT:
Limitation Act 1908 s. 15 (1) and Code of
Civil Procedure 1908 s. 48. Execution of decree-Partial stay of- Decree holder
whether entitled to claim exclusion of period in computation of limitation.
Words and Phrases : "Execution
"-Meaning of-S. 15 (1) Limitation Act 1908.
HEADNOTE:
The predecessor-in-title of respondent No. 1
obtained a decree against the predecessor-in-title of respondent No. 2 and 3.
The decree was affirmed by the State High Court on April 5, 1938. During the
pendency of the appeal, the High Court stayed execution of the decree under order
XLI, r. 5 of the Codes of Civil procedure on condition that the
appellants-defendants furnished security for the due satisfaction of the
decree. Against the decree passed by the High Court the defendants preferred an
appeal before the Judicial Committee of the State. In the appeal, the Judicial
Committee passed an interim order dated August 16, 1940 directing that until
further orders the properties attached in execution shall continue to remain
under attachment but further proceedings for the sale thereof shall remain
stayed on November 24, 1944 the Judicial Committee dismissed the said appeal
and the interim stay stood dissolved.
Respondent No. 1 who had purchased the decree
from the heirs of the original decree-holder resumed the execution of the decree.
The execution application filed by him was dismissed for default on June 11,
1945, restored on December 11, 1946 but again dismissed for default on January
21, 1954 thereafter, a fresh application for execution was filed on February
18, 1954. This application was opposed by the surety appellants on the ground
that it was barred by limitation having been filed beyond the period of 12
years prescribed by s. 48 of the Code of Civil Procedure.
The District Judge rejected the objection by
the appellants holding that although the stay of execution was partial as only
sale of the attached properties had been stayed by the Judicial Committee, the
decree-holder was entitled to the benefit of s 15 (1) of the Limitation Act.
807 The appellants preferred an appeal before
the High Court which was allowed by a Single Judge, who held that an order of
partial stay like the one granted by the Judicial Committee only postponed the
sale of the attached properties and did not have the effect of making the
decree in-executable and therefore s. 15(1) of the Limitation Act was not
attracted.
Respondent No. 1 preferred a Letters Patent
Appeal and a Full Bench of the High Court held that the word execution" in
s. 15 (1) must be construed in a broad sense, that it did not exclude a partial
stay of execution and therefore the decree-holder was entitled to the exclusion
of the period from August 16, 1940 to November 24, 1944 under s. 15 (1) of the
Limitation Act for computation of the period of 12 years prescribed under s. 48
of the Code of Civil Procedure.
Dismissing the Appeal to this Court,
HELD : 1. The word "execution" in
s. 15(1) embraces all the appropriate means by which a decree is enforced. It
includes all processes and proceedings in aid of, or supplemental to execution.
[814B]
2. There is no rational basis for adopting a
narrow and restricted construction on a beneficent provision like s. 15(1).
There is no reason why s. 15 (1) should be given a restricted meaning as
allowing the benefit to a decree- holder where there is a complete or absolute
stay of execution and not a partial stay i.e. a stay which makes the degree
altogether in-executable. [814C]
3. Stay of any process of execution is stay
of execution within the meaning of s. 15 (1). Where an injunction or order has
prevented the decree-holder from executing the decree, then irrespective of the
particular stage of execution, or the particular property against which, or the
particular judgment debtor against whom, execution was stayed, the effect of
such injunction or order is to prolong the life of the decree itself by the
period during which the injunction or order remained in force [814D-E] Kundo
Mal & Ors. v. Firm Daulat Ram Vidya Prakash, AIR 1940 Lah. 75, Virchand
Kapur Chand v. Marualappa & Anr., AIR 1944 Bom. 303, Chanbasappa v.
Holibasappa, ILR (1924) 48 Bom. 485 and Kirtyanand Singh v. Prithi Chand Lal.
AIR 1929 Pat. 597. reversed.
Bai Ujam v. Bai Ruxmani, AIR 1914 Bom. 211
and Govindnath Chaudhuri v. Basiruddin Mondal, AIR 1921 Col. 606, and Sitaram and
Others v. Chunnilalsa ILR 1944 Nag. 250 approved.
Kirtyanand Singh v. Prithi Chand Lal, AIR
1933 PC 52 explained.
808
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 109 of 1971.
Appeal by Certificate from the Judgment and
Decree dated 17th October, 1969 of the Madhya Pradesh High Court, in Letters
Patent Appeal No. 16 of 1962 V.A. Bobde and A.G. Ratnaparkhi for the
appellants.
S.S. Khanduja for the respondents.
The Judgment of the Court was delivered by
SEN, J. The short point involved in this appeal by certificate from the
judgment and order of a Full Bench of the Madhya Pradesh High Court dated
October 17, 1969 is whether a partial stay of execution of the decree like the
one in question staying sale of the attached property is within sub-s. (1) of
s. 15 of the Limitation Act, 1908 so as to entitle the decree-holder to claim
exclusion of the period during which there was stay of sale but the property
was to continue under attachment, for the purpose of computation of the period
of limitation provided by s. 48 of the Code of Civil Procedure, 1908. Since the
question involved is a substantial question of law, the High Court has granted
a certificate of fitness Under Art. 133 (1) (c) of the Constitution.
Facts are somewhat complicated but it is
necessary to disentangle them to bring out the point in controversy. One
Ghasiram, the predecessor-in-title of the present respondent No. 1 Ram Narain
obtained a decree for Rs. 5,548.18 p. from the Court of the District Judge,
Ujjain against one Bheraji, the predecessor-in-title of respondents Nos. 2 and
3 Chunnilal and Anandilal, now the Judgment-debtors. The decree was affirmed in
appeal by the Gwalior High Court on April 5, 1938. During the pendency of the
appeal, the High Court stayed execution of the decree under order XLI, r. 5 of
the Code on condition that the appellants-defendants furnished security for the
due satisfaction of the decree.
Ratanlal, father of the two appellants
Anandilal and Jankilal, executed a surety dated August 3, 1927. Against the decree
passed by the High Court, the defendants preferred a revision before the
Judicial Committee of the Gwalior State which Game to be dismissed on February
14, 1941. While the revision was pending before the Judicial Committee, the
decree-holder Ghasiram put the decree in execution against the judgment-debtors
as also against the surety on February 23, 1939 for attachment and sale of
their immovable properties. lt appears that some 809 houses and certain
zamindari lands of the surety Ratanlal were attached in execution of the
decree. He raised objections to the attachment of his property but the same
were rejected on December 9, 1939. Against the order dismissing his objections,
the surety Ratanlal filed an appeal before the Gwalior High Court which was dismissed
on July 22, 1940. He then filed a Miscellaneous Appeal before the Judicial
Committee of the Gwalior State.
It is common ground that in that appeal the
Judicial Committee passed an interim order dated August 16, 1940 directing that
until further orders the properties attached in execution shall continue to
remain under attachment but further proceedings for the sale thereof shall
remain stayed. On November 24, 1944 the Judicial Committee dismissed the said
appeal and consequently the interim stay stood dissolved. Thereafter, the
present respondent No. 1 Ram Narain appears to have purchased the decree from
the heirs of the original decree-holder and the execution proceedings were
resumed. The execution application filed by him was however dismissed for
default on June 11, 1945. It was restored on December 14, 1946 but was again
dismissed for default on January 21, 1954 as the counsel for the decree-holder
stated that he had no instruction. Thereafter, a fresh application for
execution was filed by the decree-holder on February 18, 1954. This application
was opposed by the surety Ratanlal inter alia on the ground that it was barred
by limitation having been filed beyond the period of 12 years prescribed by 13
s. 48 of the Code.
The question is whether respondent No 1 Ram
Narain, the assignee-holder, was entitled to exclusion of the period from
August 16, 1940 to November 24, 1944 under s 15 (1) of the Limitation Act for
computation of the period of 12 years prescribed under s. 48 of the Code. The
District Judge, Ujjain rejected the objection raised by the appellants holding
that although the stay of execution was partial in as much as only sale of the
attached properties had been stayed by the Judicial Committee, the
decree-holder was entitled to the benefit of s 15 (1). The appellants preferred
an appeal before the High Court which was allowed by the learned Single Judge
by his order dated February 9, 1962. The learned Single Judge held that an
order of partial stay like the one in question granted by the Judicial
Committee which only postponed the sale of the attached properties did not have
the effect of making the decree in-executable and therefore s. 15 (1) of the
Limitation Act.
810 was not attracted. He understood the
decision of Grille, C.J. and J. Sen, J. in Sitaram & Ors. v. Chunilalsa as
laying down that s. 15 (1) was applicable only when there is absolute stay of
execution.
Aggrieved by the decision of the learned
Single judge, respondent No. 1 preferred a Letters Patent Appeal which was
referred by a Division Bench to a Full Bench as the question whether a partial
stay was within s. 15 (1) or the Limitation Act was of considerable importance.
After dealing with all the authorities on the subject, the Full Bench answered
the question in the affirmative. It was of the view that the Limitation Act
like any other enactment must receive a construction which the language in its
plain meaning is capable of bearing and that there was no justification for
placing a narrow and restricted construction on the word, "execution"
occurring in the phrase "execution of the decree" in s. 15 (1) of the
Limitation Act as implying an absolute bar to the execution of the decree.
According to the Full Bench, such a construction was not warranted as it would
involve reading into the section words such as "totally. wholly, as a
whole, or by all possible means" which are not there. According to its
plain language, it held, that s. 15(1) did not exclude a partial stay of
execution. After referring to several decisions of different High Courts, the
Full Bench particularly placed reliance on the decision of the Calcutta High
Court in Sreenath Roy v. Radhanath Mookerjee holding that the words
"execution of the decree" mean enforcement of the decree by what is
known as by any of the "processes of execution". It accordingly. held
that the word "execution" in s. 15 (1) must be construed in a broad
sense taking in all or any of the various processes of execution and observed
that the decision in Sitaram's case, supra, does not take a contrary view. The
Full Bench therefore held that the decree-holder was entitled to the exclusion
of the period from August 16, 1940 to November 24, 1944 under s.
15(1) of the Limitation Act in reckoning the
period of 12 years prescribed by s. 48 of the Code. We concur with the view
expressed by the Full Bench.
It is well settled that s. 48 of the Code was
controlled by s. 15 (1) of the Limitation Act. S. 48 of the Code enacted a rule
of limitation and prescribed a period of 12 years for an application for
execution of decrees and orders. It has since been repealed by s. 28 of the Limitation
Act, 1963 which enacts that "in the Code of Civil 811 Procedure, 1908,
(Act V of 1908) s. 48 shall be omitted". In its place a new provision Art.
136 has been introduced and that prescribes "for the execution of any
decree other than a decree granting a mandatory injunction) or order of any
Civil Court a period of 12 years, etc. Thus, the substance of s. 48 continues
to be the law and for that reason, and also for the reason that with regard to
pending applications, the law as laid down in the decisions interpreting s. 48
might have to be referred to, it is necessary to give reasons.
There has been a sharp divergence of judicial
authority on the question whether a partial stay was within s. 15 (1) of the Limitation
Act. The preponderance of judicial opinion appears to be in favour of the view
that s. 15 (1) contemplates an absolute stay. There is a long line of decisions
starting from Kundo Mal & Ors v. Firm Daulat Ram Vidya Prakash where Din
Muhammad J. laid down that if execution is not completely and absolutely
stayed, s. 15 (1) of the Limitation Act does not come into play, down to
Virchand Kapur Chand v. Marualappa & Anr where Sen, J.
reaffirmed that s. 15 (1) contemplates an
absolute stay which renders the decree-holder incapable of taking out any
proceeding for execution of the decree, which are all based on the dictum of
Macleod, C. J. in Chanbasappa v. Holibasappa to the effect that s. 15 (1) only
applies to an absolute stay. The Patna High Court also took the same view in
Kirtyanand Singh v. Prithi Chand Lal. The dicta of Maclood, C. J. in
Chanbbsappa's case and of Din Muhammad, J.
in Kundo Mal's case do not give any reasons
for the view taken. Sen, J. in Virchand's case and however gave reasons for
taking the view that s. 15 (1) contemplates an absolute stay which renders the
decree-holder incapable of taking out any proceeding for execution of the
decree. The learned Judge observed that a partial stay e.g. a stay of execution
in one particular mode is not stay of execution within the meaning of s. 15 (1)
if it is open to the decree-holder incapable of taking out any proceeding for
execution of the decree. The learned Judge observed that a partial stay e.g.
a stay of execution within the meaning of s.
15 (1) if it is open to the decree-holder to execute his decree in any other
manner. He referred to the contrary view taken by the Bombay High Court in Bai
Ujam v. Bai Ruxmani by the Rangoon High Court in Nachiappa Reddy v. Maung Pe
and 812 by the Calcutta High Court in Govindnath Chaudhari v. Basiruddin Mondol
where it had been held that stay of execution of a part of the decree or
against a particular property will nevertheless save limitation' for execution
of the decree as a whole, and remarked that in view of the decision of the
Privy Council in Kirtyanand Singh v. Prithi Chand Lal, these decisions were no
longer good law. We find it difficult to accept the reasoning.
The decision of the Privy Council in
Kirtyanand Singh's case does not lay down any contrary proposition. There, the
point appears to have arisen from an order passed by the Court in the Raj Suit
to the effect that "the decree-holder were to wait for some time for
payment". That order was subsequently set aside having been in operation
for about seven months. The decree-holders' contention was that they were
entitled to the benefit of s. 15 (1) with respect to the aforesaid period of
seven months. Lord Tomlin, delivering the judgment of the Judicial Committee,
construed the aforesaid order as meaning not an order staying execution within
s. 15 (1) of the Limitation Act, and observed:
Now the first thing to be observed is that at
the time when that order was made there was in fact no application for
execution pending at all. It was an order again made in the Raj Suit and not in
the rent suits; it was all order made on application by the decree-holders
seeking leave to proceed against property in the hands of the receiver in the Raj
suit.
It was an order which did not stay at all,
but simply said that so far as that application in that suit was concerned the
appellants were to wait. That seems to their Lordships not to be in any sense
within the meaning of the section a stay of the execution by injunction or
order." (Emphasis supplied) In Lala Baijnath Prasad & Ors. v.
Nursinghdas Gujrati the Calcutta High Court appears to have adopted a middle
course, Chakravarti, C. J. delivering the judgment of the Court observed:
"If the decree-holder is prevented
altogether from 813 executing his decree, it is but reasonable that time should
not run against him so long as he remains disabled and the section says so. But
there seems to be no reason why the section should be construed as meaning that
even when the injunction or order is limited to one or some of several
judgment-debtors or to one or some of their properties or to some particular
mode of execution and even when the decree- holder is left free to proceed
against the other judgment-debtors or other properties or in other way, he will
be entitled to the benefit of the section.
The learned Chief Justice observed that in
such a case the execution of the decree is not stayed but only execution in
certain ways and against certain persons or properties is prevented, and then
added.
"But assuming 'stayed' include 'stayed
in part', the utmost that can be claimed under the terms of the section is that
if a decree-holder is restrained for a time from proceeding against some
particular judgment-debtor or some particular property or in some particular
way, and when the bar is lifted, he applies for execution against the same
judgment debtor or the same property or in the same way, he will be entitled to
exclude the period during which he remained i.e. strained." We feel that
there is no, justification for placing a rigid construction on a beneficent
provision like s. 15(1) of the Limitation Act. lt is not necessary for us to go
into the history of the legislation which has been dealt with at length in many
of the decisions laying down that s 48 of the Code is controlled by 3. 15(1) of
the Limitation Act. All that we need say is that both the enactments have
throughout been treated as supplementary to each other, and concern with
procedural law. It is also true that in construing statutes of limitation
considerations of hardship and anomaly are out of place. Nevertheless, it is,
we think, permissible to adopt a beneficent construction of a rule of
limitation if alternative constructions are possible. It ;9 plain on the terms
of s. 15(1) that the word "execution" appearing in the collocation of
words "the execution of which has keen stayed" must be construed in a
liberal and broad sense. As observed by the Calcutta High Court in Sreenath
Roy's case, supra, the words "execution of the decree" mean the
enforcement of the decree by what is known as "process of execution".
814 Agreeing with the Full Bench, we are
inclined to the view that the word "execution" in s. 15(1) embraces
all the appropriate means by which a decree is enforced. lt includes all
process and proceeding in aid of, or supplemental to, execution. We find no
rational basis for adopting a narrow and restricted construction on a
beneficent provision like the one contained in s. 15(1). There is no reason why
s .15 (1) should be given a restricted meaning as allowing the benefit to a
decree-holder where there is a complete or absolute stay of execution and not a
partial stay i.e. a stay which makes the decree altogether in-executable. Nor
can we subscribe to the proposition that in cases of partial stay, the benefit
under s. 15(1) can be had only where an execution application is directed
against the same judgment-debtor or the same property, as against whom an
execution was previously stayed. Stay of any process of execution is therefore
stay of execution within the meaning of the section. Where an injunction or
order has prevented the decree-holder from executing the decree, then
irrespective of the particular stage of execution, or the particular property
against which, or the particular judgment-debtor against whom, execution was
stayed, the effect of such injunction or order is to prolong the life of the
decree itself by the. period during which the injunction or order remained in
force. The majority view to the contrary taken-by some of the High Court’s
overlooks the well settled principle that when the law prescribes more than one
modes of execution, it is for the decree-holder to choose which of them he will
pursue.
For these reasons, the appeal must fail and
is dismissed with costs.
N.V.K. Appeal dismissed.
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