Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
PETITIONER:
ANANDILAL & ANR.
Vs.
RESPONDENT:
RAM NARAIN & ORS.
DATE OF JUDGMENT10/05/1984
BENCH:
SEN, A.P. (J)
BENCH:
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 Nos 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
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
inexecutable 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 beneficient 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 inexecutable. [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
JUDGMENT:
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
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
inexecutable 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
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
judgement-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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
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 inexecutable. 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 Courts 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.
815