Adaya Prasad Singh vs Ram Narayan Das and Others

Dawson-Miller, C.J.—This case has been referred to the Fall Bench because the learned Judges before whom it came took a different view from that expressed in the earlier case of Mahadeo Singh and Others Vs. Dhobi Singh and Another, .

The question for determination is whether a petition for execution filed on the 11th April 1923 is time-barred or not. The facts which it is necessary to refer to in order to appreciate the question in dispute are shortly as follows.

The decree which is the subject of the present application for execution was passed in favour of the Respondents in the year 1913. After five applications for execution which left the decree unsatisfied, a sixth execution petition was filed on the 1st December 1919. An order for attachment of some of the judgment-debtor''s property was made in those proceedings on the 26th February 1920 and in April the property was sold. The sale, however, was set aside on the 28th August following, and that execution case then came to an end. It should be noted that the last order passed against the judgment-debtor in that execution case was the order for attachment of the 26th February 1920. That is the only date which is of any importance in that execution case in considering the present question. A seventh application for execution was filed on the 13th May 1922 and in that case a notice was issued under Order 21, Rule 22 on the 9th November 1922. That notice appears to have been served on or before the 29th November of the same year. An objection was afterwards taken in that execution case by the judgment-debtor to the effect that the petition for execution was not in accordance with law. The objection was sustained and the case was dismissed on the 10th February 1923. The present execution case, which is the eighth, was filed on the 11th April 1923. That application was made within three years of the previous one but more than three years from the date of applying to take any step in aid of execution in the sixth execution case.

The learned Munsif decided that as the seventh application for execution was not according to law, it did not create a fresh starting point for limitation. He accordingly dismissed the present application. The learned Subordinate Judge on appeal came to the conclusion that although the application itself in the seventh case may not have been according to law still an order had been passed in those proceedings on the 9th November 1922 as required by Order 21, Rule 22, and therefore under Clause (6) of Article 182 of the Limitation Act a fresh period of limitation of three years began to run from that date. From that decision there was an appeal to this Court. The appeal was heard by a bench of two Judges who came to the conclusion that the order of the 9th November 1922 passed in the seventh application for execution was an order required by the CPC within the meaning of Article 182 of the Limitation Act, and therefore the present application which was within three years, in fact within one year of that order, was in time. As, however, there was a previous decision of this Court, to which I have referred, which took a different view, the case was referred to this Bench.

The only question for determination in this appeal is whether in the circumstances which I have stated the order passed on the 9th November 1922 ordering notice to issue under Order 21, Rule 22, was a notice required by the Code within the meaning of the 6th clause of Article 182. I perhaps ought to mention that it is no longer contended that the notice if required by the Code is bad merely on the ground that the seventh execution petition filed on the 13th May 1922 was not in accordance with law.

Order 21, Rule 22 provides as follows:--"Where an application for execution is made--(a) more than one year from the date of the decree, or (b) against the legal representative of a party to the decree the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him. There is a proviso to that rule which makes it unnecessary that a notice should be issued in certain cases, but before dealing with that it is necessary to see what is included under the rule itself apart from the proviso.

The argument of the learned Vakil who appears on behalf of the Appellant is that under the rule which I have just quoted it is necessary to issue notice in execution proceedings once, and once only, and when that has been done no further notice is required to be issued even if the subsequent execution proceedings should have been more than a year or even up to three years from the date when any order was passed against the judgment-debtor in any previous execution and the issue of such a notice therefore did not come within Clause (6) of Article 182 so as to save limitation. Now, so to interpret the rule would be, in my opinion, to introduce words into it which do not exist. The rule applies to an application for execution and that, to my mind, must include, unless the contrary should appear, every application for execution and not merely the first application. It follows, therefore, in my opinion, that wherever an application for execution, whether it be the first or any subsequent application, is made more than one year after the date of the decree, the Court is bound to issue the notice referred to, to the person against whom execution is applied for, unless the proviso makes it unnecessary. The present case, therefore, appears to come directly within the wording of the rule. It is not contended in this case that there is anything in the proviso which would make it unnecessary for the Court to issue the notice, but we are asked to say that the intention of the legislature must have been to require only one notice to be issued and no more. If that was in fact the intention of the legislature, and I can see no reason why it should be so, they have expressed that intention in very unhappy language, for there is nothing in the language of the rule to limit its operation to the first or any other application. But a reference to the proviso seems to me to make it clear that a fresh notice was contemplated as necessary even in subsequent applications except in so far as the proviso renders that course unnecessary. The proviso to the rule reads thus:--"Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is made within one your from the date of the last order against the party against whom the execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him." But for that proviso it would be necessary to issue the notice in every case whether it be the first, second or third or later application where it is made more than a year after the decree. The legislature has considered, however, that if the party has had notice by some order being made against him in some previous execution case, then within a year of that order no further notice should be required. That seems to me to be the intention and object of the rule as a whole. Again with regard to the legal representative, it is provided in his case that notice to him need not be given solely because he is the legal representative, if upon a previous application for execution against him the Court has ordered execution to issue. But even although he is a legal representative he may still come under Clause (a) of the rule subject to the proviso relating to that part of the rule.

The learned Judges in the previous case [ Mahadeo Singh and Others Vs. Dhobi Singh and Another, ] appears to mo, with great respect, to have taken somewhat too narrow a view of the meaning of Order 21, Rule 22. They stated: "The object of the rule is merely to protect the judgment-debtor or his legal representative from being lulled into a sense of security by the decree-holder''s delay in executing his decree: but once the original decree has been put into execution and a notice has been served under Rule 22 indicating his intention to proceed to execution, it does not seem to me that it is contemplated by Rule 22 that a fresh notice must be served for every execution application made more than one year after the last order against the judgment-debtor." "With great respect to the learned Judges who decided that case I find myself unable to agree and I think that the proper interpretation of Order 21, Rule 22 is that which I have already indicated, namely, that in every case where the application is mode more than a year after the decree and more than a year after the last order made against the judgment-debtor in any previous execution, then a fresh notice | must be served.

In my opinion this appeal should be dismissed with costs to the Respondent to be paid by the Appellant.

Jwala Prasad, J.

I agree.

Das, J.

I also agree.