Acha Kunju Vasu vs Krishna Kurup and Another

Sankaran, J.—The additional 12th Defendant in O.S. 735/1114 on the file of the Shertallai Munsiff''s Court who was the 10th Respondent in A.S. 357/1123 of the Alleppey District Court has preferred this second appeal against the lower appellate court''s order overruling his objection that the execution petition filed by the decree-holder on 24-11-1122 is beyond the time allowed by law. The decree in the case was passed on 18-2-1116 and it is a registered decree. The execution petition filed on 24-11-1122 is clearly beyond six years from the date of the decree. The 1st Defendant in this case had preferred a petition u/s 16 of the Debt Relief Act for a settlement of all his debts inclusive of the decree debt in this case under the provisions of that section. That petition was filed on 20-10-1116 and it was admitted and numbered as D.R.P. 243/1116; but it was dismissed on 5-5-1117 on account of the failure of the Petitioner to pay the court-fee due on it.

The decree-holder contended that he is entitled to the exclusion of the period of the Debt Relief petition from the period of limitation prescribed for the execution of the decree and that on such exclusion being made the present execution petition will be within time. The execution Court repelled this contention for the reason that the mere presentation of the petition u/s 16 of the Debt Relief Act did not operate as a stay of the execution of the decree and that therefore the decree-holder is not entitled to get the period of pendency of this petition excluded from the period of limitation prescribed for the execution of the decree.

On appeal by the decree-holder the lower appellate Court took a different view of the matter and held that during the pendency of the first Defendant''s petition under the Debt Relief Act the decree-holder was placed under a disability in the matter of taking out execution against the judgment-debtors and that therefore the decree-holder is entitled to the benefit of Section 7 of the Limitation Act. Consistent with this view, the lower appellate Court overruled the plea of limitation raised by the 12th Defendant and ruled that the execution petition dated 24-11-1122 is within time. Hence this second appeal.

The lower appellate Court''s view that the plea of limitation raised in this case is governed by Section 7 of the Limitation Act is obviously wrong. The disability contemplated by that section is the disability on account of the minority, insanity or idiocy of the person entitled to institute a suit or make an application for the execution of a decree during the relevant period. It is nobody''s case that the decree-holder in this case was under any such disabilities during the period within which an application for the execution of the decree had to be filed. Even if the petition filed by the judgment/debtor u/s 16 of the Debt Relief Act had the effect of staying the execution of the decree, the resultant disability of the decree-holder cannot be said to be a disability falling u/s 7 of the Limitation Act. The decree-holder''s contention that the petition u/s 16 of the Debt Relief Act ''ipso facto'' operated as a stay of the execution of the decree is also unsustainable. There is nothing in the Debt Relief Act to support that position. On the other hand, the provision contained in Section 21 of that Act clearly indicates that so long as there is no order of the Court staying the execution of the decree the decree-holder is at perfect liberty to take out such execution even during the pendency of the application u/s 16 of the Act.

Section 21 lays down that during the pendency of an application u/s 16 the Court may stay the execution of the decree. This is an enabling provision and the granting or refusing the stay is a matter entirely in the discretion of the Court dealing with the application u/s 16. Admittedly no order of stay had been issued by the Court on the basis of the application which had been filed by the first Defendant in this case u/s 16 of the Act, The execution Court was therefore right in its view that the pendency of the D.R.P. 243/16 filed by the first Defendant had not the effect of staying the execution of the decree in the case and as such the decree-holder could not get the benefit of the exclusion of the period of the pendency of that application. In that application there was an acknowledgment of the liability under the decree and hence a period of six years from the date of that application was clearly available to the decree-holder for filing his execution petition. That period was over on 29-11-1122 and the present execution petition dated 24-11-1122 is even beyond that period. Thus, the benefit of the acknowledgment contained in D.R.P. 243/16 could not also help the decree-holder in saving the decree from the bar of limitation.

Still Anr. position taken up by the decree-holder is that u/s 14 of the Limitation Act he is entitled to get the period of pendency of D.R.P. 243/16 excluded from the period of limitation prescribed for the execution of the decree. In order to get the benefit of this section, the decree-holder has to satisfy the following conditions: (1) His contention in D.R.P. 243/16 amounted to prosecution with due diligence of a civil proceeding in a Court (2) it was a proceeding founded upon the same cause of action viz., the decree in this case (3) he was prosecuting that proceeding in good faith (4) the Court on account of defect of jurisdiction or other cause of a like nature was unable to entertain the proceeding, and grant the necessary relief to the decree-holder.

D.R.P. 243/16 was a civil proceeding initiated and prosecuted by the first Defendant in the case. Prima facie therefore the decree-holder who was only a Respondent in that D.R.P. 243/16 cannot be said to have been prosecuting that civil proceeding. But it has to be stated that the question wheather a party was really prosecuting a civil proceeding as contemplated by Section 14 of the Limitation Act cannot always be determined merely on the basis of the position accepted by him in that proceeding. Under certain circumstances a Defendant or a Respondent in such a proceeding could also be deemed to have been prosecuting that proceeding. Where he has merely been resisting or defending a proceeding initiated by the Plaintiff or the applicant it is clear that such resistance or defence would not amount to a prosecution of a proceeding. But where the Defendant or Respondent has put forward his own claims in such, a proceeding and has sought reliefs in respect of such claims in the very same proceeding it can certainly be said that he has been prosecuting a civil proceeding.

It is urged on behalf of the decree-holder in this case that in the objection petition filed by him in D.R.P. 243 of 1116 he had also claimed satisfaction of his claim under the decree and had pressed for the relief in that direction being given in that debt relief petition itself. It is also stated that he was prosecuting that claim with due-diligence and in good faith but that the Court could not grant the relief because it could not entertain the debt relief petition on account of the default of the applicant in the matter of the payment of the court-fee.

These contentions had to be substantiated by the decree-holder by producing the necessary-records. From the order passed by the execution Court it is seen that such records had not been placed before it. In fact that Court proceeded on the basis that D.R.P. 243/16 had been rejected even before the issue of notice to the counter-Petitioner. This statement does not appear to be correct. The decree-holder maintains that he had entered appearance and had filed an objection petition wherein he had requested the Court to grant reliefs by way of satisfaction of his claim under the decree. This matter requires further investigation. We think that in the circumstances of this case the decree-holder has to be given a further opportunity to produce the necessary records before the execution Court. So that, that Court may be in a position to consider the nature of the contentions and claims which the decree-holder has urged in D.R.P. 243/16 and come to a proper conclusion as to whether or not the decree-holder is entitled to the benefit of Section 14 of the Limitation Act, in getting the period of the pendency of the Debt Relief petition excluded from computing the period of limitation for the execution of the decree.

In the result, this Second Appeal is allowed. The order of the lower appellate Court is set aside and the case is remanded to the execution Court for fresh disposal of the 12th Defendant''s objections to the execution of the decree in accordance with law and in the light of the observations made above. Costs will abide the final result.