Full Judgment Text
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PETITIONER:
PREM RAJ
Vs.
RESPONDENT:
RAM CHARAN
DATE OF JUDGMENT04/03/1974
BENCH:
DWIVEDI, S.N.
BENCH:
DWIVEDI, S.N.
REDDY, P. JAGANMOHAN
GOSWAMI, P.K.
CITATION:
1974 AIR 968 1974 SCR (3) 494
1974 SCC (2) 1
ACT:
Limitation Act 1908-S. 182-Whether the fifth application for
execution was a "step in aid of execution" and if so,
whether it is barred by limitation.
HEADNOTE:
K.and his wife purchased the house in dispute. K died in
1936 leaving behind him S and R, his son. In 1951, R
mortgaged the house to the appellant. The. appellant
obtained a preliminary decree for foreclosure and also the
final decree In the meantime, S. gifted the entire house to
Prakash Chandra son of R. He thereafter, frustrated several
attempts of the appellant to execute the decree and in 1956,
instituted a suit against the appellant and another for a
declaration that the preliminary and final decree of
foreclosure were not binding on him and prayed for a
perpetual injunction against the appellant. The suit was
dismissed but he appealed. The appeal court partly allowed
his appeal holding that he was the owner of half share in
the house by virtue of the gift and issued all injunction in
his favour. The appellant filed a second appeal in the High
Court and Prakash Chandra also filed a cross-objection in
respect of his half share. Both the appeal and the cross-
objection were dismissed by the High Court
The fourth execution application filed by the appellant was
dismissed on June 23,1956. The fifth execution application
was filed by the appellant on July 28, 1964 for possession
of half of the house. The respondent objected to this
application on the ground of limitation. the objection was
disallowed by the execution court and by the appeal
court.It was however held by the High Court and the
application was dismissed as time barred. Hence this
appeal. 3 points were raised by the appellant before this
Court-(1) Limitation is saved by cis. 1, 2 & 4 of Art. 182
(ii) Limitation is saved by cl. 5 of Art. 182 and (iii) the
fifth application for execution was really an application to
revive the fourth execution proceeding and therefore, it was
not time dismissing the appeal,
HELD : (i) It is plain that neither the decree of the appeal
court nor the decree of the High Court reversed, varied or
amended in any manner the final foreclosure decree of the
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appellant. The foreclosure decree remained intact and fully
alive. It could be executed against the respondent
according to its tenor. He could be ejected from the whole
house. But it could never have any effect against Prakash
Chandra’s (the respondent’s son) paramount title to a half
share in the house. Prakash Chandra’s appeal and the High
Court decree passed in his appeal would not fail within cls.
2 & 4 of Art. 1 82 and would not furnish a fresh starting
point of limitation for executing !the foreclosure decree
against the respondent-judgment debtor. Bkawanipur Banking
Corporation Ltd. v. Gori Shanker Sarma [1950] SCR 25
referred to. [498 A-B, C]
(ii)In order to get the advantage of Cl. 5 of Art. 182, the
appellant has to satisfy 3 conditions:-
(a)the written statement filed in respondent-son’s suit
and in were appeal were an "application"
(b) the Court where respondent-son’s case and appeal, and
wherein the appellant’s second appeal was file were the
proper court, and
(c) Proceedings specified in (a) are a step in aid of
execution of the decree sought to be executed by the
appellant. [498 D-F]
(iii)To oppose Prakash Chandra’s suit, the appellant
had filed a written statement. The written statement
ordinarily does not include any request to the court and it
is not an ’application’ within the meaning of Cl. 5 of Art.
182. [499 C-D]
495
(PannaLalv.Smt.Saraswati Devi AIR 1960 Ali 572 and Kartar
Singh v. Sultan Singh Partap Singh A.I.R. 1967 Punjab 375,
distinguished.)
(iv) Further, even if the suit and appeal was instituted in
the proper court, the written statement filed by the
appellant was not an application and therefore, he cannot
take advantage of Cl. 5 of Art. 182. As the appellant’s
appeal in the High Court was not an application to the
Proper Court it is unnecessary to decide whether in the suit
and in the appeal filed by Prakash Chandra the written
statement of the appellant and his resistance to the appeal
and his second appeal in the High Court amounted to a step-
in-aid in execution of the decree sought to be executed by
him. [500 A-D, 503H-504 A]
(v)The fifth application for execution was not a
continuation of the previous application because the
previous application was dismissed for not paying the
process fee etc. and it was not a pending application. (504
D-E]
Dissenting per Goswami J.-The appellant was faced with
resistance from the respondent and his relations. The
appellant made abortive attempts to execute tile mortgage
decree in order to obtain possession of the suit property.
Having failed to obtain Possession by usual civil process
the appellant applied for police kelp which was rejected.
Further, the respondents’ son dragged the appellant to a
suit which became, another obstacle to the execution of the
decree for possession of the suit property. Further, the
partly accepted appeal of the judgment debtors son by the
appellate Court changed the character of the original
foreclosure decree which the appellant could execute.
Further. because of injunctions restraining the appellant
from executing the fore closure’ decree in full the original
foreclosure decree in the form it was, was not capable of
execution. [517 C-E, 518 D]
Maharaja Sir Rameshwar Singh Bahadur v. Homeshwar Singh
(1921) 40 Madras Law Journal 116, referred to.
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Therefore, the decree the Civil suit No. 75A of 1957 had a
direct and immediate connection with and effect upon the
decree in suit No. 27A of 1952 sought to be executed. The
nexus between the two is manifestly clear. It was obvious
that the appellants’ successive ecphractic actions in
defending the foreclosure decree in different ways until its
final determination in the High Court were all "Steps in aid
of execution" of his foreclosure decree and therefore, the
appellants’ fifth execution application was within time,
being within 3 years from the date of the final order in the
High Court on January 1, 1962. [517 E-H]
Nagendra Nath Raj & Ors. v. Suresh Chander Dey & Ors.
A.I.R. 1932 P.C.1651 167.V. E. A. Annamalai Chethar v.
Valliammai Achi and ors.72 IA 296/303; Bhawanipare Banking
Corporation Ltd. v. Gouri Shanker Sharma [1950]; S.C.R, (25)
Rudra Narajan & Ors. v. Maharaja Kapurthala A.I.R. 1936 Oudh
248, A.S. Krishanappa Chethar & Ors. v. Nachiappa Chethar &
Ors. [1964] S.C.R. 241/252 etc., referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No,. 16o7 of
1967.
Appeal by Special leave from the Judgment and Decree dated
the 3rd February, 1967 of the Madhya Pradesh High Court at
Jabalpur in Civil Misc. Second Appeal No. 124 of 1966.
B. D. Sharma for the appellant.
B. N. Lokitr and A. G. Ratiaparkhi for the respondent.
The Judgment of P. JAGANMOHAN REDDY AND S. N. DWIVEDI, JJ.
was delivered by DWIVEDI, J. P. K. GOSWAMI, J. gave a
dissenting Opinion.
DWIVEDI, J.-Kariya and his wife Sava purchased the house in
dispute by a registered deed on April 2, 1905. Kariya died
in 1936 leaving behind him Sava and Ram Charan, his son. On
August 16, 1951 Ram Charan mortgaged the house to Prem Raj
(the appellant). Prem Raj obtained a preliminary decree for
foreclosure on August
496
16, 1952 and also the final decree on July 16, 1955. In the
meanwhile.on March 7,1952 Sava gifted the entire house to
Prakash Chandra, son of Ram Charan,the respondent.
Fortified by this gift, Prakash Chandra frustrated several
attempts of the appellant to get possession of the house in
execution of his decree. He made three unsuccessful
attempts to execute the decree till the end of 1954. He
made the fourth attempt on April 25, 1956. Shortly there-
after, on December 7, 1956, Prakash Chandra instituted a
suit against the appellant and his father Ram Charan for a
declaration that the preliminary and final decree for
foreclosure in favour of the former were not binding on him
and for a perpetual injunction restraining the appellant
from taking possession of the house in execution of the
aforesaid decree. The suit was dismissed on November 25,
1958. He filed an appeal and obtained an order staying exe-
cution of the decree on December 31. 1958. The appeal court
partly allowed his appeal on October 21, 1959. It was held
that he was the owner of a half share in the house by virtue
of the gift deed from Sava in his favour. So the appeal
court issued an injunction restraining the appellant from
executing his decree with respect to a half share in the
house. The appellant filed a second appeal in the High
Court of Madhya Pradesh against the judgment of the appeal
court. Prakash Chandra also filed a cross-objection in
respect of his claim for the remaining half share in the
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house. Both the appeal and the cross-objection were
dismissed by the High Court on January 1, 1962.
Turning back to the fourth execution application filed by
the appellant, it was dismissed on June 23, 1956. The fifth
execution application was filed by the appellant on July 29,
1964 for possession over half of the house. The respondent
objected to this application on the ground of limitation.
The objection was disallowed by the execution court as well
as by the appeal court. It was, however, upheld by the High
Court of Madhya Pradesh. So the application was dismissed
as time-barred. Hence this appeal.
The sole argument of the appellant in the High Court was
that S. 15 Limitation Act, 1908 (hereinafter called the Act)
saved limitation. The High Court rejected this argument.
The order of the appeal court staying execution of the
decree remained in force only for a limited period between
January 31, 1958 and October 21, 1959. That time should be
excluded in computing limitation under s. 15; but that alone
would not have limitation.
Before us, counsel for the appellant has not placed reliance
on 15 to save limitation. His arguments now are :
1. Limitation is saved by clauses 1, 2 and 4 of Art. 182;
2. Limitation is saved by cl. 5 of Art. 182;
3. The fifth application for execution was really an
application to revive the fourth execution proceeding and
therefore, it was not time-barred.
497
We shall consider these arguments in seriatim. But before
we do so, it is necessary to read the relevant provisions of
Art. 182;
"For the execution of a decree 1. The date of the decree
of Three 1. The date of the
decree any civil court....
years
....................
2. (where there has been an
appeal) the date of the final
decree of the appellate Court
4. (where the decree has been
amended) the date of amendment,
or
5. (where the application
next hereinafter mentioned has
been made) the date of the
final order passed on
an application made is
accordance with law to the
proper court to take more step
in aid of execution of the
decree....
Explanation 11 : "Proper Court"
means the Court whose duty it
is to execute the
decree.........."
Regarding argument No. 1 We are unable to appreciate how the
High Court decree in Prakash Chandra’s suit will give a
fresh starting point of limitation to the appellant under
cl. 1 of Art. 182. Clause 1 is to be read against the
backdrop of the words in the first colums "for the execution
of a decree." So the date of the decree (whether of the
first court or of the appellate court) which is put in
execution furnishes the starting point of limitation.
The final decree in favour of the appellant was drawn up
under Order XXXIV, rule 3 Civil Procedure Cod,-. The decree
absolutely debarred the respondent and all persons claiming
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under him from redeeming the mortgage It also directed the
respondent to deliver possession of the disputed house which
was mortgaged. The decree was binding on the respondent and
anyone claiming under him. it could not and did not purport
to bind a third person claiming any interest in the house in
his own right. In his suit Prakash Chandra challenged the
decree, inter alia, on the ground that he was the sole owner
of the house. He claimed a declaration that the decree was
not binding on him and a permanent in junction restraining
the appellant from taking possession of the house in
execution of the decree. The appeal court found that
Prakash Chandra was the owner of a half share in the house
by virtue of the gift from Sava who had a half share and
that accordingly the decree was not binding on him to the
extent of a half share. The appeal court granted a
declaration to that effect and an injunction restraining the
appellant from taking possession of the half share of
Prakash Chandra in the house in execution of the decree.
The decree of the appeal court was affirmed by the High
Court.
498
It is plain that neither the decree of the appeal court nor
the decree of the High Court reversed, varied or amended in
any manner the final foreclosure decree of the appellant.
The foreclosure decree remained in tact and fully alive. It
could be executed against the respondent according to its
tenor. He could be ejected- from the whole house. But it
could never have any effect against Prakash Chandra’s
permaount title to a half share in the house.
Prakash Chandra obtained his decree in a collateral suit.
The appellant’s second appeal against the decree of the
appeal court in favour of Prakash Chandra A,,,-is not
directed against the foreclosure decree now in execution,
nor would it, as shown earlier, effect the decree in any
manner in relation to the respondent judgment debtor. So
his appeal and the High Court decree passed in his appeal
would not fall within cl. 2 and 4 of Art. 182 and would not
furnish a fresh starting pint of limitation for executing
the foreclosure decree against the respondent-judgment
debtor. (See Bhawanipore Banking Corporation Ltd. v. Gori
Shanker Sharma(1).
The appellant has relied on Mohammad Jabir and others v.
Narain Prasad Daruka and others (2) and Janab Mohammad
Ismail v. Tatlvia Bivi Amral and others. (3) In these two
cases the decree sought to be executed itself was amended.
So clause 4 of Art. 182 was directly applicable.
Regarding argument No. 2 : In order to get the advantage of
cl. 5 of Art. 182, the appellant has to satisfy three
conditions :
(a)The written statement filed by him in
Prakash Chandra’s suit, his resistance to the
first appeal of Prakash Chandra and his second
appeal in the High Court are an "application."
(b)The court in which Prakash Chandra’s
suit and firs’ appeal were instituted and the
High Court wherein the appelant’s second
appeal was filed are the "proper court".
(c)The specified in (a) are a step in
aid of execution of the decree sought to be
executed by the appellant.
An appellant is "the making of art appeal, request, or
petition to a person; the request so made." (Shorter Oxford
English Dictionary, 1955 Edn. 86) Thus the making of request
to a person is of the essence of an application. In some
cases it has accordingly been held that the plaint is an
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’application’ within the meaning of that word in cl. 5 Art.
182. (See Rudra Narain v. Maharaja oj’Kopurthala.(4) The
Bombay, Calcutta and Madras High Courts have, however, held
to the contrary. (See Raghunandan Prasad v. Bhagggoolal.(5)
It is unnecessary to resolve this conflict of opinion
between the High Courts in this appeal. To oppose Prakash
Chandra’s suit, the appellant had filed a written statement.
So we are directly concerned with the question whether a
written statement is an ’application’ within
(1) [1950] S.C.R. 25 at p. 29.
(3) I.L.R. [1965] 1 Madras 176.
(2) A.I.R. 1960 Patna 126.
(4) A.I.R. 1936 Awadh 248.
(5) I.L.R. 17 Cal. 268.
499
the meaning of cl. 5 of Art. 182. According to Order VII r.
1 Civil Procedure Code the plaint should specify the relief
which the plaintiff claims. So it may be plausibly argued
that the plaint, which makes a request to the court, is an
"application". But unlike the point, the written statement
ordinarily does not include any request to the court. It is
simply a defence to the plaintiff’s claim. Order VIII Code
of Civil Procedure deals with matters which ought to be
included in a written statement. Rule 6 thereof enables the
defendant to make a claim for set-off. To the extent the
written statement includes the claim for set-off, it may be
treated as a plaint. It is perhaps arguable that a written
statement filed in an interpleader suit may also be treated
as a plaint. But we express no opinion on this aspect.
Leaving aside rule 6 and the interpleader suit, there is
nothing in Orders VI and VIII, Code of Civil Procedure to
show that a written statement could legally include any
request to the court. We are aware of the general practice
in the Mufassil of including ill the written statement of
prayer that the suit should be dismissed with costs. But
this prayer is super erogatory and would not convert a
written statement Simpliciter into an ’application’ within
the meaning of el. 5 of Art. 182.
In Panna Lal v. Smt. Saraswati Devi (1), the judgment
debtor made an application under Order XXI, r. 2 Code of
Civil Procedure to the execution court alleging payment to
the decree holder outside the court. The decree holder
filed a written objection denying payment. The application
was ordered to be dismissed. The appear from the order met
the same fate. The High Court held that the time for filing
the execution application ran from the date of the appellate
order. The High Court said : "(it was) of the opinion that
the words" "to take some step in aid of execution of the
decree" should be interpreted liberally in favour of the
decree-holder. if he, has mistaken and step which would
remove as all obstacle to this further decree, he would be
entitled to the benefit of the provision. In the present
case the decree-holder took steps to set aside the objection
which was an hindrance against execution and was therefore a
step-in-aid of execution." Plainly, the High Court has
assumed without any discussion that the written objection of
the decreeholder to the application of the judgment-debtor
under Order XXI, r. 2 C. P. C. Was an application within the
meaning of el. 5 of Art. 182 and has they proceeded to
decide whether the said objection was a step-in-aid of exe-
cution. In our opinion, the assumption was wrongly made.
The written objection of the decreeholder could not be
regarded as area application. The Punjab High Court has
followed the Allahabad decision in Kartar Singh v. Sultan
Singh Partap Singh (2). Like the Allahabad High Court, the
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Punjab High Court also has erroneously assumed that the
written objection filed by the decreeholder to the
application of the judgment-debtor for reopening the case
and for setting aside the decree was an application.
(1) A.I.R. 1960 AU. 572.
(2) A.I.R. 1967 Punjab 375.
500
Counsel for the appellant has strenuously attempted to
pursuade us to give a liberal construction to the word
’application’ in cl. 5 of Art. 182. We do not think that
the rule of liberal construction gives a free hand to the
Court to stretch and strain the statutory language to accord
with our abstract notions of justice and fair play. In our
view, if the statutory language is susceptible of two cons-
tructions, the rule of liberal construction should incline
the Court ’to prefer the one which accomplishes the
legislative purpose. But where the statutory language will
bear one and only one meaning, there is no room for the
application of the rule of liberal construction. Howsoever
liberally one may construe the word ’application’, it is not
possible to regard the written statement of the appellant in
Prakash Chandra’s suit as an ’application’, for it made no
request to the court.
Just as the written statement of the appellant cannot be
regarded as an ’application’, so also the resistance to the
appeal filed by Prakash Chandra cannot be held to be an
’application’. Counsel for the appellant, however, submits
that the appellant’s second appeal in the High Court would
be an ’application’.
In V.E.A. Annamalai Chettiar v. Valliammai Achi(1) the Privy
Council has held that an appeal filed by The decreeholder is
an application’.It may be assumed that the appellant’s
second appeal in the High Court is an ’application’ within
the meaning of cl. 5 of Art. 182. But this does not
conclusion the matter in favour of the appellant. He has to
show that the High Court is the "proper court". "Proper
Court" is defined in Explanation It to Art. 182, is "the
court whose duty it is to execute the decree." Ordinarily,
the High Court with not be the "proper court" as so defined,
because it is normally not the duty of the High Court to
execute a decree. According to s.38 Civil Procedure Code a
decree may be executed "either by the court which passed it
or by the court to which it is sent for execution. So "the
proper court" would be the court which passed the
foreclosure decree in favour of the appellant. The
appellant can derive no assistance from Annamalai (supra).
In that case the decreeholder had made an application for
execution of his decree in the proper court. The judgment-
debtor filed an objection. It was allowed. Then the
decreeholder filed an appeal in the High Court. The appeal
was dismissed. The Privy Council held that the time for
making the execution application ran from the order of the
High Court. Repelling the argument of the judgment-debtor
that the High Court was not the proper court, the Privy
Council said : "Under s. 187 of the Code of Civil Procedure
an appeal court has the same powers as are conferred and
imposed by the Code on courts of original jurisdiction.
Where an application for execution is dismissed by the lower
court, the appeal court is the proper, and indeed, the only,
court which can then execute the decree. No doubt in
practice a High Court does not itself generally execute the
decree of lower courts; normally it remands the case to the
’lower court with directions to, execute according to law on
the basis
(1) 72 Indian Appeals 296.
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501
of the High Court’s decision ; but in a proper case the High
Court would no doubt execute the decree or order itself."
(emphasis added) It is clear from this passage (especially
from the words shown in emphasis) that the Privy Council
regarded the High Court as the ’proper court’ on account of
the fact that the decreeholder had applied for execution of
his decree in the ’proper court’. It was held that the
appeal court entertaining an appeal from the order of the
executions court is the proper court. Such is not the
case before us.
It may be pointed out here that in the courts below the
appellant did not place reliance on Art. 182 for saying
limitation. So there is no finding by the court below
on the point as to whether Prakash Chandra’s suit was
instituted in the court which could execute the final
foreclosure decree of the appellant. The record before us
does not unambiguously make out that the suit was instituted
in the court which could execute the said decree. The
foreclosure decree was passed by the Civil Judge,
Class 11, Balaghat. It appears from the plaint in
Prakash Chandra’s suit that the suit was instituted in the
court of the First Additional Civil Judge, Balaghat
attached to the Second Civil Judge, Balaghat. But the
judgment of the appeal court in Prakash Chandra’s
first appeal indicates that the suit was instituted in the
court of the First Additional Civil Judge, Balaghat attached
to the court of the First Civil Judge, Balaghat. So
it is not certain whether Prakash Chandra’s suit
was instituted in the court which could execute the
final foreclosure decree of the appellant. But even if it is
assumed that the suit was instituted in the court
which could execute the said decree, we are unable to hold
that the appellant’s second appeal to the High Court
arose out of an "application" made to the "proper court"
because his written statement in the suit was not an
"application" made to the proper court. So the appellant
cannot get the benefit of cl. 5 of Art. 182.
The Allahabad and Bombay High Courts have taken the view
that time would run from the date of the appellate order.
(Baldeo Singh v. Ram Swarup(1) and Joshi Laxmiram Lallubhai
v. Mehta Balashankar Veniram(2). In Baldeo Singh (supra) an
application for execution was made by Baldeo Singh, who was
the assignee of the decreeholder an July 15, 1916. About a
year earlier, the property against which the decree was to
be executed had been sold to Ram Swarup and Jai Dayal in
execution of a simple money decree. Ram Swarup and Jai
Dayal instituted a suit for a declaration that the property
purchased by them was not saleable in execution of the
decree by the assignee, Baldeo Singh. They also claimed an
alternative relief that they were entitled to a prior charge
of nearly Rs. 2,000/- on the property. While this suit was
pending, the assignee’s application for execution was dis-
missed. Thereafter the suit was decreed in respect of the
alternative relief only. Baldeo Singh filed an appeal from
the decree. The appeal court allowed the appeal and
dismissed the suit on March 19, 1918Baldeo Singh then filed
an application for execution on September 30,.
(1) A.I.R. 1921 All. 174.
(2) I.L.R. 39 Bombay, 20.
502
1919. It was made three years after the dismissal of the
previous application. The execution court dismissed the
application as timebarred. The first appeal court upheld
the order of the execution court. on appeal, the High Court
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held that the application or execution was made within time.
On,.- of the reasons given by the High ’Court in support of
its view was that the appeal filed by the assigned was at
step-in-aid of execution. The High Court said : "There is
another aspect of the case from which also this application
would be within time. The suit, as we have stated above,
was for two reliefs : (1) that the property was not saleable
and (2) the alternative relief was that the property was
subject to a prior encumbrance. On the 18th of July 1917,
the Court gave the then plaintiffs the second relief claimed
by them, namely, that they could put up their prior charge
of nearly Rs. 2,000/- as a shield against any person who got
the property in execution. In order to remove this
difficulty in the way of the execution of his decree
unconditionally the decreeholder appealed successfully. The
decree of the 19th March, 1918 would go to show that this
appeal must have been filed within 3 years of the present
application for execution and this must be considered to be
a step-in-aid of execution. as by it the decreeholder wanted
to remove certain difficulties which stood in the way of his
getting the full benefit of his decree. From this ,view
also the present application is within time."
It may be observed that the High Court did not consider at
all the question whether the appeal was an ’application’
made to the "proper court" as defined in Explanation 11 of
Art. 182.
In Laxminarayan Lallubhai (supra) the judgment-debtor
applied to have himself declared an insolvent. In the
circumstances, the decreecholder could not have the judgment
debtor arrested in execution of his decree if he was
declared an insolvent, and consequently he opposed the ap-
plication and when that was unsuccessful he appealed against
the order declaring him insolvent. It was contended that if
s.15 of the new Limitation Act of 1908 be held inapplicable,
his opposition to the insolvency of the judgment debtor
should be regarded as a step-in-aid of the execution of the
decree under Art. 179 of the old Limitation Act,
1877,corresponding to Art.182of the Limitation Act,1908.
Beamon, J., speaking for the Division Bench, found some
difficulty in bringing such an application (application
opposing the application for insolvency) within the meaning
of the words application to take some stepin-aid of
execution’under Art. 179 (old), now Art. 182 of the
Limitation Act. But when the result of the proceedings went
against him, the creditor ’ ’appellant appealed to the
District Court and succeeded. Advertins to this aspect, the
learned Judge said:
"We think that it is not putting too great a
strain upon ordinary language to say that an
appeal in such circumstances. fairly false
within the meaning of the words: ’an
application to take a step-in-aid of
execution’. It is clear that as long as the
insolvency proceedings went in favour of the
debtor, the creditor could not have presented
any application in ordinary course for the
further execution of his decree with the least
hope of success".
503
The appellant had no other course open to him, if the debtor
was declared insolvent, than in the first instance to get
this bar to the further execution of his decree removed.
And the only way in which he could hope to obtain that
result would be by first opposing the in solvency petition
in the first Court and if he failed thereby appealing to the
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higher court. While so holding, the learned Judge struck a
note of caution :
"Adopting that view, it is unnecessary to
enter into any of the other nice and difficult
questions which have been raised and
adequately argued in the course of this
appeal. We do not seek to lay down any
general principle upon any of those questions,
but we desire to confine our judgment to the
rather unusual facts before us, and we think
that we do not violence to the meaning of
Article 179 (old), now Article 182, by holding
that the present darklast is within three
years of the last application made by the
judgment-creditor to a Court to take some
step-in-aid of the execution of his decree."
This case neither considered whether the application
opposing the insolvency was an ’application’, nor whether
the Insolvency Court was the ’proper court’, within the
meaning of cl. 5 of Art. 182 of the Limitation Act. On the
other hand the Madras High Court in Chatnangali Rarichan v.
Puvvanparambath Kunhamu(1) held that an application to the
Insolvency Court for leave to execute the decree against the
insolvent is not an application made to aproper court,
because it is entirely a creature of the Provincial
Insolvency Act and is therefore a different Court to the
Court which is to execute a decree obtained independently of
the Insolvency Act. The mete fact that the Presiding
Officer of the Insolvency Court and the Court executing the
decree is the same person will not make the application to
the Insolvency Court as one to the Court entitled to execute
the decree. Laxmiram Lalubhai’s case and the observations
cited by us were considered and it was pointed out that
explanation II to Art. 182 which defines what is the proper
court was not at all alluded to in the judgment. It is not
necessary to refer to other decisions because in our view
the period spent in taking a step in aid can be excluded
only if the Court in which the step is taken is a ’proper
court.’, The facts in C. P. Syndicate Ltd. Nagpur v. Firm
Hasanali Abdul Ali (2) and Rajendra Prasad v. Indrasan
Prasad are similar to the facts in Annamalai(supra). In the
first of the cases, it was an appeal from an order of the
executing Court dismissing an objection to the execution.
To the second of them, also, the appeal which was considered
to be an application to take a step in aid was one against
an order of the executing court. Both these cases relied on
the decision of the Privy Council in Annamalai (supra).
As we have held that the appellant’s appeal in the High
Court was not an application to the ’proper court’ it is
unnecessary to decide whether in the suit and in the appeal
filed by Prakash Chandra the
(1) I.L.R. 57 Madras 808. (2) A.I.R. 1959 M.D. 288 (FB).
(3) A.I.R. 1954 Patna 46
504
written statement of the appellant and his resistance to the
appeal and his second appeal in the High Court amounted to a
step-in-aid in execution of the decree sought to be executed
by him.
Regarding argument No. 3: An application may be said to be
one seeking to continue or to revive the previous execution
application if (1) it is in the eye of law still pending or
has been dismissed for no fault of the decreeholder and (2)
if the two applications are in substance similar in scope
and character. Where the previous application for execution
has been properly and finally disposed of by the execution
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court, the subsequent application cannot be said to be in
continuation of it or to be a revival application. (See
Vadlamannati Bala Tripura Sundaramma v. Abdul Khader) (1).
In the present case the previous application (the fourth
application for execution was dismissed on June 23, 1956.
The execution court made this order: "Decreeholder in
person; judgment-debtor absent. Process fee not paid.
Dismissed as wholly infructuous." It appears from the
judgment of the appeal court, dated November 28, 1956, that
the execution court had dismissed the execution application
on June 23, 1956 as the appellant had failed to pay process
fee for the warrant of possession. It is plain from these
orders that the previous execution application was not kept
pending. On the contrary, it was dismissed on account of
the appellant’s failure to pay process fee for the warrant
of possession. Accordingly the last application for
execution made on July 28, 1964 was not an application for
continuing or reviving the previous application made on
November 28, 1956.
Counsel for the appellant has relied on Prem Narain v. Ganga
Ram,(2) Hira Lal v,. Punjab National Bank(3) Kotta
Annaprurnanma v. Makku Venkamma,(4) Kalliappa Goundan v.
Kandaswami Goundan(5) and Chmnammal v. Chennappa Goundan.(6)
In the first case the decreeholder and the judgment debtor
compromised and agreed that the latter should be given three
months’ time for payment of the decretal sum and that if he
failed to pay within the said period the execution should
proceed. The court then ordead: "The execution case be
struck off for the present". The judgment debtor did not
pay the amount within the agreed period. Then the
decreeholder filed an application for execution On the
judgment debtor’s objection that it was time-barred, the
Allahabad High Court held that the application was one to
revive the execution proceedings. The facts of the case are
plainly distinguishable from the facts of the case before
us. The execution application was not finally disposed of
and, in any case, the decree holder was not at fault.
In the second case, the decreeholder had applied for
execution by attachment and sale of certain property. One
Kanshi Ram filed an objection that he had a lien on it. The
objection was allowed and
(1) A.I.R. 1933 Madras 418.
(3) A.I.R. 1935 Lahore 911.
(5) A.I.R. 1938 Mad. 498.
(2) A.I.R. 1931 All. 458.
(4) A.I.R. 1938 Mad. 323.
(6) A.I.R. 1958 Mad. 21.
505
the proceedings in execution were stayed because the
decreeholder had instituted a suit under Order XXI, r.63
Code of Civil Procedure and did not wish to proceed with the
execution till the decision of the suit. The suit was
decreed, but a little before that the application for
execution was dismissed in default of the decreeholder and
the attached property was released. The subsequent
application was made to revive the previous application and
to sell the property which had already been attached after
the decision of the suit. In the meanwhile Kanshi Ram
preferred an appeal to the High Court. So the execution
court directed that the application ’be filed for the
present. They can be restored when appeals in the High
Court are decided.’ When the appeals were dismissed, the
decreeholder applied for the sale of the property which had
already been attached. The judgment debtor then objected on
the score of limitation. The Lahore High Court held that
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the subsequent application was one to revive the previous
application (which was dismissed in default). It is true
that the previous application was finally disposed of and
that too for default of the decreeholder, but it may be
recalled that at the request of the decreeholder the
execution court had stayed the execution proceedings until
the decision of the question of Kanshi Ram’s lien. The
court therefore could not dismiss the execution application
for default of the decreeholder before the decision of his
suit under Order XXI r.63 Code of Civil Procedure. As the
order of the court was not correct, the application was
deemed to be pending. Thus understood, the decision would
not be helpful to the appellant.
The third and fourth cases have nothing to do with the
question of revival of an execution application. In the
last case the execution application was ordered to be
dismissed. More than three years thereafter the
decreeholder made another application. The judgment-debtor
objected on the ground of limitation. His objection was
overruled. A learned Single Judge of the Madras High Court
held that on the facts and circumstances of the case, as
construed by him, the previous application was really
pending and that the subsequent application fell under cl.5
of Art. 182. On the facts as construed by him the case
becomes distinguishable from the facts of the present case.
We should, however, make it clear that we should not be
understood to have given our approval to the decision.
Counsel for the appellant has submitted that it is a hard
cast for the decreeholder, for he is losing even half the
share in the disputed house. That is so, but the blame lies
squarely on him. He could have executed his decree with
respect to the half share in the house after the decision of
the appeal court. But he did not avail of the opportunity
and waited for the decision of the High Court in the appeal
and cross-objection filed by Prakash Chandra. He was not
vigilant and should suffer the consequences.
As a result of the foregoing discussion, we are of opinion
that the High Court rightly dismissed the fifth application
as time barred. So we dismiss the appeal. But in the
circumstances of this case parties shall bear their own
costs. 4-M 45 Sup CI/75
506
GOSWAMI, J. The interesting and important question which is
raised in this appeal with special leave is whether the
present application for execution, the fifth of its kind in
this case, is barred by imitation under article 182 of the
Limitation Act, 1908.
In order to appreciate the above question of law, a brief
reference to the history of the litigation is necessary.
One Kariya and his wife Sava purchased the suit property,
which is a house, by a registered sale deed of 20th April,
1905. Kariya died in 1936 leaving behind his widow, Sava
and their son Ram Charan, the present respondent. Ram
Charan alone executed a registered mortgage deed of the
entire suit property on 16th August, 1951, in favour of Prem
Raj, the present appellant. Prem Raj instituted a civil
suit No. 27A of 1952 on the basis of the mortgage deed and
obtained a preliminary decree for foreclosure on 16th
August, 1952 and also the final decree on 16th July, 1953.
Sava, the mother of Ram Charan, on the other hand, had
executed a registered deed of gift of the suit property on
7th March, 1952, in favour of Prakash Chandra, son of Ram
Charan, the respondent. Basing his claim on this deed of
gift, Prakash Chandra, then a minor, by his father’s sister,
as next friend, filed a civil suit on December 7, 1956,
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being No. 75A of 1957 impleading the present appellant as
the 1st defendant and his father, Ram Charan, as the 2nd
defendant. Prakash Chandra claimed to be the sole owner of
the suit property and described his father Ram Charan as a
"gambler and drunkard" in the plaint in that suit. He
prayed in the suit for declaration that the preliminary and
the final decree for foreclosure of 16th August, 1952 and
16th July, 1953, respectively in the civil suit No. 217A of
1952 were not binding on him and that Prem Raj, the 1st
defendant therein, "be restrained through a perpetual
injunction from taking possession of the house in dispute in
execution of the aforesaid decree". This suit was dis-
missed on 25th November, 1958. Prakash Chandra lodged an
appeal against that judgment and decree and obtained stay of
the execution of the aforesaid foreclosure decree in suit
No. 27A of 1952 on 31st December, 1958. His appeal No. 37A
of 1959 was partly allowed by the First Additional District
Judge, Chandwara, reversing the earlier decree of 25th
November, 1958 and declaring that Prakash Chandra was
entitled to the half share in the suit property.
The decree was, inter alia, in the following form:--
"....it is ordered and declared that the
decrees in Civil Suit No. 27-A of 1952 of the
Court of Civil Judge, Clas II. Balaghat, are
not binding on the plaintiff to the extent of
half share in the house in suit and it is
further ordered and decreed that the defendant
No. 1 is hereby restrained from taking
possession of plaintiff’,, half joint share in
the house in suit in execution of his
aforesaid decrees".
Prem Raj being dissatisfied with the judgment and decree
lodged a second appeal (No. 107 of 1960) in the High Court
of Madhya Pradesh. Prakash Chandra also filed a cross
objection with regard to
507
his claim for the other half of the suit property. Both the
appeal and the cross objection were dismissed by the High
Court on 1st January,1962.
Thus being free from the above mentioned litigation, the
appellant, Prem Raj, filed his fifth execution application
on July 28, 1964, in the Court of the Civil Judge, Class 11,
Balaghat, praying for "joint possession of the half of the
house to be delivered from the judgment debtor along with
(the half joint possession of) Prakash son of Ram Charan
Gadhewal".
Since this is the fifth application for execution, let us
look in retrospect to the four other execution applications
filed early by the appellant as decree-holder. These may be
given seriatim as under :-
27-7-1953The appellant filed the first execution application
for obtaining possession of the suit house in execution of
the final foreclosure decree in civil suit No. 27A of 1952.
8-10-1953The appellant was unable to obtain possession and
the execution application was consigned to the records.
31-10-1953The second execution application was filled by the
appellant for possession of the suit house.
6-8-1954 The second execution application was also
consigned to the records as he was unable to obtain
possession.
30-8-1954A third execution application was filed by the ap-
pellant for possession of the house.
11-1-1955The third execution application was also consigned
to the records as’ the appellant was unable to obtain
possession of tile suit house.
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25-4-1956The appellant filed his fourth execution
application for possession of the suit house and also filed
all application for police aid as he made several attempts
in his previous execution applications to obtain possession
of the suit house but lie was obstructed by the respondent
and his relations and that it was not possible to obtain
possession of the suit house in execution without police
aid.
4-5-1956 The application of the appellant for police aid
was rejected by the executing court and it was ordered that
an attempt should be made again to obtain possession without
the police aid.
23-6-1956The executing court dismissed the fourth execution
application of the appellant as wholly infructuous as the
appellant considered it completely useless to obtain and
execute a fresh warrant of possession again without police
aid and so did not pay process fee and instead filed an
appeal in the District Court against the Order of the
executing court.
508
28-11-1956 : The appeal of the appellant against the order
of the executing court refusing police aid was dismissed as
the said order was not appealable and the execution case was
consigned to the records.
Reference has already been made to the civil suit No. 75A of
1957 filed by Prakash Chandra on December 7, 1956, which
resulted ultimately in his partial success entitling him to
half of the suit property, the whole of which was the
subject matter of the foreclosure decree in suit No. 27A of
1952.
To revert to the present execution case out of which this
appeal has arisen, the respondent objected to the aforesaid
fifth and last execution application on the ground of the
same being barred under article 182 of the Limitation Act
1908 his objection was dismissed by the executing court as
well as by the Additional District Judge in appeal. The
respondent then filed a Miscellaneous Second Appeal No. 134
of 1966 in the Madhya Pradesh. High Court against the
judgment of the Additional District Judge, Balaghat. The
High Court on 2nd March 1967 accepted the respondent’s
appeal and set aside the orders of the courts below and held
that the execution application of the appellant was barred
by time and should be dismissed. The appellant’s
application fir leave to appeal to a Division Bench under
the Letters Patent was rejected by the learned Single Judge.
Hence this appeal with special leave.
The question in this appeal is whether the appellant
(decree-holder) is entitled to exclude the period covered by
the suit filed by Prakash Chandra upto 1st January, 1962 on
which date the High Court dismissed the appellant’s, second
appeal as well as the respondent’s crossobjection arising
out of that suit. To put it differently whether the
appellant’s filing of the written statement in Prakash
Chandra’s suit and his resistance to his appeal which
resulted in partial mutilation of his foreclosure decree and
lastly his memorandum of appeal before the High Court
against the decree-are a series of steps in aid of execution
of his foreclosure which has been passing through
vicissitudes of success and failure in the course of
litigation.
Mr. Lokur, learned counsel for the respondent, submits that
section 15 of the Limitation Act would not come to the aid
of the decreeholder since there was no stay of execution of
the decree by any court after disposal of the appeal by the
First Additional District Judge on 21st October, 1959.
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There was, therefore, no impediment in the way of the
appellant executing the decree thereafter, says Mr. Lokur.
With regard to the further contention of Mr Sharma, learned
counsel for the appellant, Mr. Lokur submits that article
182(2) will not apply as the appeal was not directed against
the original foreclosure decree which was sought to be
executed. In this appeal Mr. Sharma concentrates upon two
submissions. Firstly, according to him, the present case is
fully covered by article 182(5) as the appellant’s
resistance to the suit of the judgment-debtor’s son in civil
suit No. 75A of 1957, thereafter to the civil appeal arising
out of it and later himself pro-
509
secuting a second appeal in the same matter to defend his
foreclosure decree in suit No. 27A of 1952 are all directed
to remove an obstacle in the way of the execution of the
original foreclosure decree and hence the same are "steps in
aid of execution of the original decree" under article
182(5) and saves running of limitation. The learned
counsel, therefore, submits that the fifth execution
application of 28th July, 1964, being filed within three
years of 1st January, 1962, on which date the High Court
finally dismissed the appellant’s second appeal and the
respondent’s cross objection, is within time. Alternatively
the counsel submits that the fifth execution application is
not a fresh application but a revival of his fourth
application of 25th April, 1956 and there is, therefore, no
question of the same being barred by limitation in this
case.
It is now necessary to take up the appellant’s submission on
the score of article 182(5) of the Limitation Act. It will
be appropriate, therefore, to quote the same :
Description of Application. Period of Time from which
period Limitation. begins to run.
182. For the execution of a Three Years X X
decree or order of any
Civil Court not provided for by art. 133 or by s.48 of thenex
there in aftermen Code of Civil Procedure, 1908.
(Where the application next hereinafter mentioned has been
made) the date of the final order passed on an application
made in accordance with law to the proper Court for
execution or to take some step in aid of execution of the
decree or order, or........"
In the present appeal what is material is the second branch
of article 182(5) in the third column, namely, "to take some
step in aid of execution of the decree".
The learned counsel on both sides submit that there is no
direct authority of this Court on the point although a large
number of decisions from the High Courts disclosing a
cleavage of opinion and a few decisions from the Privy
Council were cited at the bar in order to throw light on the
subject from the respective points of view of counsel.
As early as 1932, the Privy Council in Nagendra Nath Dey and
another v. Suresh Chandra Dey and others(1), while dealing
with the expression "whether there has been an appeal under
column 3 of article 182(2)", and noting the difference of
opinion among the authorities in India on the subject
observed as follows:
"The fixation of periods of limitation must
always be to some extent arbitrary, and may
frequently result in hardship.
(1) A.I.R. 1932 Privy Council 165/167.
510
But in construing such provisions equitable
considerations are out of place, and the
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strict grammatical meaning of the words is,
their Lordships think, the only safe guide.
It is at least an intelligible rule that so
long as there is any question sub judice
between any of the parties those affected
shall not be compelled to pursue the so often
thorny path of execution which, if the’ final
result is against them; may lead to no
advantage. Nor in such a case as this is the
judgment debtor prejudiced. He may indeed
obtain the boon of delay, which is so dear to
debtors, and if he is virtuously inclined
there is nothing to prevent his paying what he
owes into Court".
Again in V. E. A. Annamalai Chettiarv. Valliammai Achiand
Another(1), the Privy Council dealing with article 182(5) of
the Limitation Act left the matter open observing as
follows:-
"There has been some difference of opinion in
the Courts in India as to what amounts to
taking a step in aid of execution and the
judgment under appeal discusses various
decisions, including a decision of the High
Court of Madras in Kuppaswami Chettiar v.
Rajagopala Aiyer(2), in which it was held that
there could not be a step in aid of execution
if there was not an application for execution
then pending, and another decision of the same
court in Krishna Patter v. Seetharama Patter
(3), in which it was held that a step in aid
of execution must be one in furtherance of
execution and not merely one seeking to remove
an’ obstruction to possible future execution.
Their Lordships do not find it necessary to
express any opinion on these questions, since
in the present case there was at all material
times an application for execution
pending........"
The expression "step in aid of execution" is not defined in
the Limitation Act nor is it capable of a precise or
exhaustive definition. It will have to be construed in the
light of the facts and circumstances in each case and the
present case is indeed a peculiar one with litigation raised
on two fronts, the parties with diametrically opposite
avowed objects one (namely, the appellant) to execute and
reap the fruit of the foreclosure decree and the other
(namely, the respondent judgment-debtor’s son) seeking the
assistance of the court to completely nullify the very
decree in order to maintain his title to and possession of
the suit property.
In the above context, can the successive steps taken by the
appellant in resisting the respondent son’s claim in the
latter’s suit and the former’s other consequent actions
thereafter in the original court, appellate court and lastly
in the High Court, be construed as "steps in aid of
execution of the foreclosure decree". It is strenuously
contended by the respondent that all these steps are in
connection with another suit and not with the original suit
out of which the present execution petition was filed. Both
sides referred to a decision of this
(1) 72 Indian Appeals 296/303. (2) 1922 I.L.R., 45 M. 466.
(3) 1926 I.L,R., 50 M.. 49.
511
Court in Bhawanipore Banking Corporation Ltd. v. Gouri
Shanker Sharma(1), which however, was a case under article
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182(2) of the Limitation Act and referred to the following
passage at page 29 of the decision:-
"It was also suggested by the learned counsel
for the appellant that the case might be held
to be covered by clause 2 of article 182
on the ground that, even though no appeal was
preferred from the final mortgage decree, the
words "where there has been an appeal" are
comprehensive enough to include in this case
the appeal from the order dismissing the
application under order IX, Rule 9, of the
Civil Procedure Code, made in connection with
the ’proceedings under section 36 of the
Moneylenders Act. This argument also is a highly
far-fetched one, because the expression "where
there has been an appeal" must be read with
the words in column of article 182, viz., "for
the execution of a decree or order of any
civil Court........ and, however, broadly we
may construe it, it cannot be held to cover an
appeal from an order which is passed in a
collateral proceeding or which has no direct
or immediate connection with the decree under
execution".
The learned counsel for the appellant seeks to derive great
support from the words "which has no direct or immediate
connection with the decree under execution in the above
excerpt. It is apparent that the facts of the case before
this Court in the above decision are clearly distinguishable
and there was no direct connection between the application
etc. for revival of a collateral proceeding under, order 9
rule 9 and the original decree sought to be executed. On
the contary if it is possible to find in a suit or a
proceeding a direct and immediate connection with the
original decree, the result where of will be or even likely
to be affected be the particular suit or proceeding, the
matter may be entirely different. What is then the exact
legal position on the facts and circumstances of the
persent executing case vis-a-vis the suit of Prakash Chandra
which mutilated the foreclosure decree to the extent of
depriving the appellant from executing in respect of half of
the suit property earlier decreed in his favour? Would the
appellant execute or even reasonably be expected to execute
his whole decree while his right to do so has already been
under challenge or in a jeopardy in a civil suit? Would the
appellant be expected to have a sort of clairvoyance or pre-
science about the result of the suit which he is defending
and, therefore, execute the decree confidently and seek to
recover the property without the least risk of any future
litigation? In a legal adventure of this type multiplicity
of litigation and self created complications in case of an
ultimate failure in the suit, may be writ large in the
nature of things. Would he still tread on the "thorny path
of execution"? In the face of ambiguity or doubt, for long,
recognised in courts, if a beneficient construction to the
words" step in aid of execution" in article 182(5) of the
Limitation Act could be given, it will be only giving effect
to the law and not to equity which’
is out of bounds in limitation.
(1) [1950] S.C.R. 25.
512
It may be clearly noted that there is no controversy between
the parties in this appeal with regard to "the proper court"
for execution within the meaning of the second explanation
of article 182(5) of the Limitation Act. It stands to
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reason, therefore, that no argument was advanced by the
parties’ counsel on this score. The only controversy is
with regard to the benefit of the time consumed in the
entire litigation commenced in civil suit No. 75A of 1975
and the consequent appeals thereafter. It will be,
therefore, difficult to visit the appellant with an evil
consequence without affording him an opportunity to meet
such a possible objection which even lacks certainty and
definiteness on the records of this appeal.
Some of the High Courts seems to lean towards a fair and
liberal interpretation in favour of the decree-holder in the
construction of articlel82(5)in respect of what is "step in
and of execution" of a decree (See Rudra Narainand others v.
Maharaja oKapurthala(1); Kotta Annapuranamma v.Makku
Venkamma(2); Panna Lal v. Smt. Saraswati Devi(3)and Uma
Shankar Mehrotra v. Kanodia Brothers, Kanpur and
another(4).It is not possible to read these decisions as
judicial exercise to give effect to equity superimposed upon
law. The respondent’s counsel on the other hand draws our
attention to the strict construction of section 15 of the
Limitation Act, which is, however, not relied upon by the
appellant, in A. S. Krishnappa Chetliar & Ors. v. Nachiappa
Chettiar& Ors.(5) and relies upon the following passage.
"The question is whether there is any well-
recognised principle whereunder the period of
limitation can be regarded as being suspended
because a party is prevented under certain
circumstances from taking action in prusuance
of his rights. The Limitation Act is a
consolidating and amending statute relating to
the limitation of suits, appeals and certain
types of applications to courts and must,
therefore, be regarded as an exhaustive code.
It is a piece of adjective or procedural law
and not of substantive law. Rules of
procedures, whatever they may be, are to be
applied only to matters to which they are made
applicable by the legislature expressely or by
necessary implication".
The learned counsel for the respondent further relies upon
another decision of this Court in Sirajul Haq Khan & Others
v. The Sunni Central Board of Wakf U.P. and Other(6) and
lays stress on the following passage :
"Section 15 provides for the exclusion of time
during which proceedings are suspended’ and it
lays down that ’in computing the period of
Limitation prescribed for any suit or
application for the execution of a decree, the
institution or execution of which has been
stayed by an injuction or order, the time of
the continuance of the injunction or order,
the day on which it was issued
(1) AIR 1936 Oudh 248.
(3) AIR 1960 Allahabad 572.
(5) [1964] 2 S.C.R. 241/253-54
(2) AIR 1938 Madras 323.
(4) AIR 1966 Allahabad 409.
(6) [1959] S.C.R. 1287/1301-1302.
513
or made and the day on which it was withdrawn,
shall be excluded. It is plain that, for
exuding the time under this section, it must
be shown that the institution of the suit in
question had been stayed by an injunction or
order; in other words, the section requires an
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order or an injunction which stays the
institution of the suit. And so in cases
failing under s. 15, the party instituting the
suit would by such institution be in contempt
of court".
This Court, however, also observed in the same
decision as follows.’-
"Whether the requirements of s. 15 would be
satisfied by the production of an order or an
injunction which by necessary implication
stays the institution or the suit is open to
argument. We are however, prepared to assume
in the present case that s.15 would apply even
to cases where the institution of a suit is
stayed by necessary implication of the order
passed or injunction issued in the previous
litigation".
The respondent, as already mentioned, has referred to
Bhawanipore Banking Corporation Ltd. v. Gouri Shankar Sharma
(supra) and submits that the subsequent suit has no direct
or immediate connection with the decree under execution and
we will deal with this aspect at the appropriate place.
The respondent relies upon a decision of the Bombay High
Court in Somshikharswami Shidlingswami’v. Shivappa Mallappa
Hosmaani and Others(1), which, according to the learned
counsel, runs on all fours with the present case. This was,
however, a case where the High Court was considering the
pleas of sections 14 and 15 of the Limitation Act raised by
the decreeholder to save running of time. The High Court
held section 15 out of the way as there was no order of stay
or injunction in any of the suits filed- by the judgment-
debtor preventing the decreeholder from executing his
decree. With regard to the plea of section 14(2) of the
Limitation Act, the High Court held that the decree-holder
was not prosecuting any case but was only defending the same
and it was "difficult to say...... that the Court was unable
to entertain the proceeding form defect of jurisdiction or
other cause of alike nature". Adverting to the unholy type
of tenacious litigation of the judgment debtor in that case
the High Court, being unable to apply the provisions of
sections 14 and 15 of the Act, pithily and rather ruefully,
observed as follows:
"It is no doubt unfortunate that the plaintiff
finds his remedy thus barred in a matter in
which he has been asserting his right to this
property for the last ten years and more......
Ina case of this kind it may be desirable that
the plaintiff ought to be in a position the
deduct the time taken up in defending a
litigation of the nature such as we have in
the present case. But as we are unable to
bring the case within the provisions of the
Limitation Act, the plaintiff’s appeal must
fail".
(1) AIR 1924 Bombay 39/4041.
514
It may at once be pointed out that there is no reference in
the above decision to article 182(5) of the Limitation Act
and necessarily there was no discussion of the provision in
favour of the decree-holder who sought to execute the
decree. This decision is, therefore,. of no avail to the
respondent on the legal aspect with which we are concerned
in this appeal. At the best it could be advanced as an
implied authority, in the circumstances of that case, for
the proposition that a written statement or defence in a
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suit is not to be treated as an application in aid of
execution. But we find an observation of this Court in
Madan lal v. Sunder lal and another, (1) while dealing with
section 30 of the Arbitration Act, to the following effect:-
"It may be conceded that there is no special
form prescribed for making such an application
and in an appropriate case an objection of the
type made in this case may be treated as such
an application, if it is filed within the
period of limitation".
There is no difficulty in holding that in an appropriate
case, a written statement defending a particular suit or
memorandum of appeal in prosecuting a particular appeal or
resisting it may be treated as an application being a ’step
in aid of execution’ under certain definite and positive
circumstances, although no general rule can be laid down in
this behalf.
The respondent also relied upon a decision of the Madras
High Court (Full Bench) in (Vadl amannati) Bala Tripura
Sunderamma v. Abdul Khader, (2) in which section 15 of the
Act was pressed into service and the High Court repelled the
plea and also refused to treat the subsequent barred
application as one of revival of the old application
dismissed for non-payment of batta by the decree-holder.
Article 182(5) did not come up for consideration in that
case.
The Madras Full Bench decision (supra) approved of the
decision in Satyanarayana Brahmom v. Seethayya(3) and
observed as follows :-
"In regard to the institution of suits, not
the execution of decrees, it is held in
Satyanarayana Brahmam v. Seethayya(3) that no
equitable grounds for the suspension of a
cause of action can be added to the provisions
of the Limitation Act and a decree cancelling
a promissory note as fraudulent is no stay of
a suit upon the note" (emphasis supplied).
In Muthu Korakkai Chetty v. Madar Ammal, (4)
Sadasiva Ayyar,
J., observed as follows:
"A person is not bound to bring an unnecessary
suit or to make futile and unnecessary
applications during the course of other
litigation proceedings for the settlement of
the same right"
Sundaram Chetty, J., also observed as follows
in the same decision :
(1) [1967] (3) S.C.R. 1471151.
(2) AIR 1933 Madras 418/419/421.
(3) AIR 1927 Madras 597.
(4) AIR 1920 Madras 1-43 Madras 185 (F3).
515
"it may be contended with some show of reason
that even in the absence of an injunction
restraining the sale of the properties in
execution of the mortgage decree in O.S. No.
29 of 1918, the declaration of the invalidity
of that mortgage would be an obstacle to
pursue the execution of the mortgage decree by
seeking to sell the mortgaged properties. I
am not however dealing with that point".
This, however, does not mean that a rule with statutory
force can be laid down by the court superimposing upon the
provision of the Limitation Act. The question in the
present case, therefore, must rest upon the proper
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construction of article 182(5) without superadding anything
to the law and whether the Court will be prepared to give a
beneficient construction to the words "step in aid of
execution."
The respondent’s counsel relied upon Govinda Bhatta v.
Krishna Bhiatta, (1) which, however, cannot come to his aid
as will appear from the following extract therefrom :
"It is,therefore, not possible for us to
accept the contention of the decree-holder
that his right to execute the decree had been
in any manner affected much less extinguished,
by reason of the finding contained in Ext. A-
3 judgment".
The respondent also relied upon Raghunandun Parshad and
Another v. Bhuggo Lall (2), dealing with article 179 of the
old Limitation Act, 1877, corresponding to article 182(s),
but the following observation at page 271 would clearly show
that the case is distinguishable on facts:-
"It is clear that the decree-holders could,
notwithstanding the order in the claim case,
have prosecuted their application for
execution against the one-third share which
was not released then quite as well as they
can do so now. Their present application is
for the sale of that third share of the
property; there was no bar then to their
enforcing the execution of the decree, and
there: has been no subsequent removal of that
bar".
The respondent’s counsel further relied upon Surisetti
Ramasubbayya v. Palur Thimmiah and others (3) wherein it was
held that the plaint in the declaratory suit under 0 21, r.
63 cannot be treated as an application under article 182(5);
nor is it a "step in aid of execution". Even in the above
case the High Court observed at page 11 as follows:-
"It may be conceded that the plaint was filed
by the decreeholder with the object of getting
rid of the finding of the executing court
which was to the effect that the property was
not liable to be proceeded against in
execution of his decree and that this may be
therefore regarded as a step-in-aid of
execution".
(1) AIR 1968 Kerala (FB) 250/252.
(2) (1890] I.L.R., 17 Culcutta 268/271.
(3) AIR 1942 Madras 5111.
516
The respondent’s counsel also referred to Katragadda Ramayya
and another v. Kolli Negaswararao and others (1) which
however, was not required to deal with this particular
aspect of the matter before us under article 182(5). Even
in Narayan Jivangouda Patil and another v. Puttabai and
others (2) at page 8 the Judicial Committee, while dealing
with an argument with regard to section 15 of the Limitation
Act that the injunction or order to be effective should
contain an express prohibition, observed as follows:
"....it is not necessary to consider that
point as their Lordships are satisfied that
there is no prohibition, either express or
implied in the injunction or the decree in the
present case, which restrains the appellant
from instituting a suit for possession".
(emphasis supplied).
After a survey of the various decisions on the subject, it
may perhaps be possible to have two views on this aspect of
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the matter but it is difficult to overlook that certain
reservations were made by the Privy Council both in Nagendra
Nath Dey’s case (supra) as well as in Narayan Jivangouda
Patil’s case (supra) for an appropriate occasion to consider
whether the "intelligible rule" referred to in the former
and the "rule of implication" hinted in the latter may not
be pressed into service in favour of the decree-holder in
construing certain relevant provisions of the Limitation
Act-thus making the way clear for a fair and liberal
interpretation of Art. 182 adverted to in several High
Courts’ decisions. A somewhat apposite decision on the
point is available in Joshi Laxmiram Lallubhai and another
v. Mehta Balashankar Veniram, (3) with regard to a ’step in
aid of execution’ under article 179 of the Limitation Act,
1877 and the successor article 182 of 1908 Act. The Bombay
High Court observed therein as follows at page 25:
"We think that it is not putting too great a
strain upon ordinary language to say that an
appeal in such circumstances fairly falls
within the meaning of the words : "an
application to take a step-in-aid of
execution". It is clear that as long as the
insolvency proceedings went in favour of the
debtor, the creditor could not have presented
any application in ordinary course for the
further execution of his decree with the least
hope of success. Two at least of the High
Courts in India had already put so liberal a
construction upon the insolvency provisions of
the old Civil Procedure Code that an executing
creditor must have foreseen that no
application for the execution of the decree
either by, sale of property or arrest, of the
person of the judgment-debtor could have the
least chance of success so long as the
judgment debtor had been declared an insolvent
under section 351, even although he had not
been actually discharged within the meaning of
section 357. So that we think that in view of
the Court’s finding that this judgment-debtor
was an insolvent early in
(1) AIR 1969 Andhra Pradesh (FB) 259.
(2) AIR 1945 Privy Council 518.
(3) [1915] L.L.R. , 39 Bombay 20/25.
517
1906, the present appellant had no other
course open to him than in the first instance
to get this bar to the further. execution of
his decree removed, and the only way in which
he could hope to obtain that result would be
by first opposing the insolvency petition in
the first Court, and if he failed there, by
appealing to higher. authority".
The principle adverted to in the above passage of the Bombay
High Court appears to be correct. In that case also, as in
the present appeal, there was no controversy about the
"proper court" within the meaning of the 2nd explanation to
article 182.
Coming now to the facts of the case at hand it is found that
the appellant (decree-holder) was faced with resistance from
the respondent judgment debtor and his relations. The
appellant, however made abortive attempts to execute the
mortgage decree in order to obtain possession of the suit
property. Having failed to obtain possession by means of
usual civil process, the appellant applied to the court for
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police aid but the prayer was rejected. Soon after the
appellant was dragged to the court by the respondent’s son
in a suit wherein both the appellant and the respondent were
parties although the respondent was exports. If the
respondent’s son had succeeded in the suit the entire
foreclosure decree would have been a scrap of paper for the
appellant. The appellant therefore found in his front a
hurdle which must first be crossed before he could
successfully execute his decree in order to obtain
possession of the suit house. No doubt his defence was
successful in the trial court but the first appellate court
partly accepted the appeal of the judgment-debtor’s son with
reference to half of the share of the suit house and the
decree thereafter was no longer the original foreclosure
decree which he could execute.
The form of the decree has already been set out above. The
decree in the Civil Suit No. 75A of 1957 had thus a direct
and immediate connection with and effect upon the decree in
suit No 27A of 1952 sought to be executed. The nexus
between the two is manifestly clear. In such circumstances
it is obvious that the appellant’s successive ecphractic
action in defending the foreclosure decree in different ways
in the course of the lengthy litigation until its final
determination in the High Court are all steps in aid of
execution, of his foreclosure decree. These steps to remove
the impeding executing the foreclosure decree were
absolutely incumbent upon the appellant to take the next
move in furtherance of the execution of the foreclosure
decree to facilitate the same. These being therefore,
necessarily "steps in aid of execution" of the foreclosure
decree, the appellant’s fifth execution application was
within time, being within three years from the date of the
final order in the High Court on January 1, 1962.
It should also be remembered that there was a perpetual
injunction restraining the appellant from executing the
foreclosure decree in Prakash Chander’s appeal No. 37A/59
during the period from 3112-1958 to 21-10-1959. Thereafter
and the appeal was partly allowed
518
the perpetual injunction was directed in the decree against
half of the suit-house. In other words in the injunction
against the decree in suit N.). 27A/52 was never raised
fully at any time.
It is clear that the original foreclosure decree in the form
it was, was not capable of execution and the appellant’s all
attempts in the series of litigation were to restore the
said decree to its original form for proper and effective
enforcement of the same. The appellant carried this race
upto the High Court and having finally stopped there, turned
to execute whatever is now left for enforcement. Although
directly on the point, the Privy Council in Maharaja Sir
Rameshvar Singh Bahadur v. Homeshvar Singh(’ while dealing
with articles 181 and 182 of the Limitation Act 1908 laid
down a kind of pragmatic principle in the following words
They (the Privy Council) are of opinion that,. in order to
make the provision of the Limitation Act apply, the decree
sought to be enforced must have been in such a form as to
render it capable in the circumstances of being enforced. A
decree so limited in its scope as that of the 27th July,
1906, under consideration cannot in their opinion be
regarded as being thus capable of execution".
In the view thus taken in this appear it is not necessary to
decide ’Whether article 182(4) could be invoked in this case
on the basis of all implied amendment of the foreclosure
decree as a necessary consequence of decree in the
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subsequent suit. It is also not necessary
in this appeal to deal with the alternative submission of
the appellant with regard to the theory of revival of his
execution case earlier consigned to the records in 1956.
In the result the appeal is allowed and the judgment of the
High Court is set aside but in the entire circumstances of
the case the parties will bear their own costs in this
Court.
S. C.
Appeal allowed.
(1) (1921) 40 Madras Law Journal 1/6
519