Ajimuddin vs Budheswar Sarma

Thadani, C.J.—This is a second miscellaneous appeal from the order of the learned Addl. Subordinate Judge, A.V.D. dated 15-7-48, by which he affirmed the order of the executing Ct. the Munsiff of Nowgong who had ordered the execution of the decree obtained by the decree-holder to proceed.

The facts material to the appeal are these The judgment in the suit was passed on 13-7-38 upon a compromise arrived at between the decree holder & the judgment debtor, according to which the decretal amount was to be paid in 4 instalments; the 1st installment was payable on 13-7-39; this installment was paid by the judgment-debtor, The 2nd installment was payable on 15-11-39, but was not paid. The compromise decree provided that on the failure of the judgment-debtor to pay any instalment as it fell due, the balance of the decretal amount would become payable at once.

An execution appln. for the first time was filed in 1943. By then the decree holder had died &, as his legal representatives had not obtained a succession certificate, the execution appln. filed in 1943 was struck oil on 19-3-45, two years later on 2-1-47, the present execution appln. was brought. As the decree sought to be executed was more then a year old, notice was issued to the judgment-debtor who, however, failed to appear. The executing Ct. thereupon ordered execution to proceed &, in pursuance of the order, a notice for settlement of the terms of the sale of the property which had been attached before judgment was issued to the judgment-debtor. The judgment-debtor appeared in response to this notice & objected to the sale contending that as the execution appln. made by the legal representatives of the decree-holder in 1943 was time-barred, the present execution appln. filed in 1947 was liable to be dismissed.

Both the Ct. below have negative this contention. The judgment-debtor has raised the same question before us. In support of his contention, the judgment debtor''s advocate relied upon a decision of the P.R. of the Allahabad H. Order reported in Genda Lal Vs. Hazari Lal, which no doubt supports his contention. But it is also plain that the learned Judges of the Allahabad H.C. arrived at their decision after distinguishing the case befote their Lordships of the P.C. reported in Mungul Pershad v. Girja Kant 8 Cal 51. It may be conceded that the facts of the case before us are almost identical with the facts present before the F.B. of the Allahabad H.C. Nevertheless, we are unable to persuade ourselves to agree with the view taken by the Allahabad H.C. in view of the decisions of the Calcutta & Madras High Courts, to which we will presently refer & which, we think, are in harmony with the decision of the P.C. reported in Mungul Pershad v. Girja Kant 8 Cal. 51.

In order to appreciate the full import of the decision of their Lordships of the P.C. it is necessary to emphasize the following fact a present in the case before us: 1. There was an order of attachment before judgment, which, at the date of the passing of the decree on 13-7-38, was not vacated, but confirmed; it was, therefore, not necessary to re-attach the property in execution of the decree in 1943. 2. The property continued to remain under attachment at the date of the 2nd execution appln. made in 1947. 3. on the 2nd appln. the Ct. issued a notice under the provisions of Order 21, Rule 22, Civil P.C. the decree being more then an year old in response to which the judgment-debtor failed to appear 4. The executing Ct. then ordered execution to proceed & ordered a proclamation of sale to issue together with a notice for the settlement of the terms of the sale.

Now, in the Calcutta case, to which we have referred, their Lordships of the P.C. observed:

The Courts below make no reference to the order, or the attachment under it & in the list of dates Bet out by the Subordinate Judge, the order, & the date of it, are wholly committed Admitting for the sake of argument, but only for the sake of argument, that the decree was barred when the sixth appln. was made, when the notice was served on 23-9-1874, & when the petn. of 8-10-1874 was presented & that the subordinate Judge ought to have dismissed the petn. upon the ground of limitation, although it was not set up or relied upon by the judgment-debtor, still his order, though erroneous was valid, not having been reversed.... But, as already observed, the Subordinate Judge had jurisdiction upon the petn. of 8-10-1874 to determine whether the decree was barred on 8-10-1871, & he made an order that an attachment should issue. He whether right or wrong, must be considered to have determined that it was not barred. A Judge in a suit upon a cause of action is bound to dismiss the suit, or to decree for the delt. if it appears that the cause of action is barred by limitation. But if, instead of dismissing the suit, he decrees for the pltf. his decree is valid, unless reversed upon appeal & the deft, cannot, upon an appln. to execute the decree, set up as an answer, that the causal of action was barred by limitation.

We think their Lordships of the P.C. have plainly laid down that even though at the date of an execution appln. made for the first time, the execution is time-barred, if no objection is taken to the execution of the decree on the ground that it is barred by limitation, & the executing Gt. orders execution to proceed, when the by attaching the property or ordering its sale, a judgment-debtor cannot, upon a second appln. made within 3 years of the disposal of the first appln. without having the order of attachment or Bale properly set aside, set up the plea that at the date of the first execution appln. the execution was time-barred. It is true, their Lordships of the P.C. have not expressly referred to Rule 23 of Order 21, C.P.C. but we think they had in view the provision of Order 21, Rule 23. Rule 23 of Order 21, C.P.C. is in these terms:

(1) Where the person to whom notice is issued under the last preceding Rule does not appear or does not show causal to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed.

(2) Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit.

In the case before us, it is not disputed that when a notice was issued to the judgment-debtor under Rule 22 of Order 21, upon the 2nd execution appln. made by the decree-holder, the judgment-debtor did not appear. The executing Ct. was then bound to pass an order that the decree be executed. Sub-rule (2) of Rule 23 of Order 21, C.P.C. has no application to the facts of the present case. Sub-rule (2) of Rule 23 of Order 21, C.P.C. does not contemplate appearance of a judgment-debtor at a subsequent stage Sub-rule (1) & (2) deal with the same stage of proceedings Sub-rule (1) contemplates the nonappearance of a judgment-debtor Sub-rule (2) his appearance, but at the same stage of the proceedings. In this case, the date on which the judgment-debtor could have taken the objection as to limitation, was the date mentioned in the notice to him under Rule 22 of Order 21. His failure to appear on the prescribed date, properly led the executing Ct. to pass an order ordering the decree to be executed which must stand until it 13 reversed on appeal or other appropriate proceedings.

The applt''s advocate next relied upon & decision of the Calcutta H.C. reported in Boidya Nath Sil and Others Vs. Bejoy Chandra Kundu and Others, . The ratio decidendi of that case, however, was that when the judgment-debtors appeared & took the plea of limitation, they were within time to appeal against the order of 13-5-1933 & that the Rule which passed that decree had power to review the order of 13-5-1933 on the petn. of the judgment-debtors; both the appeal & the petn. for review being within time, the Ct. was within its jurisdiction on 10-6-1933, to entertain the petn. of the judgment-debtor that the case was barred by limitation, & that the Rule of constructive res judicata did not apply. It was on this basis that the learned Judges of the Calcutta H.C. distinguished the decision of their Lordships of the P.C. reported in Mungul Pershad v. Qirja Kant 8 Cal. 61. In the case before us, it does not appear that the objection as to limitation was taken within the period of limitation allowed for an appeal or revision.

We were next referred to a case reported in Rafatulla Farazi Vs. Kundarmal Agarwalla and Another, . In that case, there was an ex parte finding that the execution appln. was not barred by limitation & the Ct. issued a notice to the judgment-debtor to show cause why the execution should not proceed against him. On the date fixed for showing cause, namely, 28-11-1931, both the judgment-debtor & the decree-holder were absent, & the execution appln. was dismissed; there was no order that the execution do proceed.

Das, J., of the Calcutta H.C. had occasion to consider this aspect of the case in Aswini Kumar Das Gupta and Others Vs. Karamat Ali Kha, in which an order had been passed after a notice had been served under Order 21, Rule 22, Civil P.C. calling upon the judgment-debtor to show cause why the decree should not be executed against him. The judgment-debtor did not appear in pursuance of that notice, & the Ct. directed the decree-holder to take further steps in the matter of the execution of the decree, & directed him to file process & costs. Commenting on the decision of the Calcutta H.C. reported in Boidya Nath Sil and Others Vs. Bejoy Chandra Kundu and Others, to which reference has already been made, Das, J., observed:

With all respect to the learned Judges, it seems to me that the petn. of objection tiled by the judgment-debtor before the same Gt. cannot be regarded as an appeal : from the order of that Ct., nor was the appln. filed as as appln. for review as such, & the grounds taken were not good grounds for review. It appears, however, that in the case the judgment-debtor in his ptn. of objection had challenged the service of notice under Order 21, Rule 22, Civil P.C, & the decree-bolder did not controvert the allegation It may be taken, therefore, that the order of 13-5-1953, was not an order which was mafia after due service of notice under Order 21, Rule 22, Civil P.C. The general observations made in that judgment must be read in the light of the findings arrived at in that case. The observations made in that case were really in the nature of obiter dicta, having regard to the finding on the question of notice under Order 21, Rule 22, Civil P.C.

Das J., then referred to the decision of their Lordships of the P.C. to which we have referred & observed that the decision reported in Boidya Nath v. Bijoy Chandra AIR 1936 Cal. 306 runs counter to certain decisions of the Calcutta H.C. & was opposed to the decision of the Judicial. Committee reported in Mungul Pershad v. Grija Kant 8 Cal. 51 . It is true that Das J. has not referred to the F.B. decision of the Allahabad H.C. reported in Genda Lal Vs. Hazari Lal, but we do not think that it matters, in view of the fact that Das J., has followed the decision of their Lordships of the P.C. reported in Mungul Pershad v. Grija Kant 8 Cal. 51.

The Madras H.C. in a case reported in Venkamamidi Balakrishnayya Vs. Nannapaneni Linga Rao, has taken the view that where there is an order passed by the executing Ct. directing the decree-holder to file sale papers in regard to certain items of the property, it must be deemed to involve determination by the Ct. that the decree was capable of execution & operated as res judicata notwithstanding the fact that there was no express decision on the point & the execution petn. was ultimately dismissed as not pressed.

In Desayi Venkatranga Reddi and Others Vs. Paraku Chinna Sithamma and Another, , Patanjali Sastri J. (now a Judge of the S.C. of India) observed:

It will be noticed that Sub-rule (1) of Rule 23, Order 21 covers not only cases where the judgment-debtor does not appear in response to the notice or does not offer any objection to execution, but also these where he appears & objects but fails to satisfy the Ct. that the decree should not be executed. In all such cases, the Ct. is required to ''order'' the decree to be executed. That is to say, even in cases where the judgment-debtor appears & ''offers any objection to the execution of the decree'' & the Ct. ''considers such. Objection,'' it has to not under Sub-rule (1) of Rule 23, Order 21, Order P.C. if it is not satisfied that the objection is valid. Where such objection is found to be tenable, the Ct. has to make, under Sub-Rule (2) such order as it thinks fit, that is to say, according to the nature & scope of the objection up held. There is thus no justification for the view that an order under Sub-rule (1) ''has to be automatic'' & that an order under Sub-rule (2) alone amounts to an ''adjudication'' such as would fall within the definition of a decree, & we are unable to see any such distinction as the learned Judge supposed to exist between these sub-rules. If, therefore, the Ct.''s ''order'' under Sub-rule (1) that the decree should be executed is, as it must be held to be, in case where the judgment-debtor appears & objects but the objections are over Ruled, an appeasable adjudication binding on the parties so long as it is unrevised, it is difficult to see why a similar order under the same provision in cases where the judgment-debtor does not choose to appear in response to the notice duly served on him, should be regarded as not having that effect. It seems to us that there can be no logical difference for this purpose between an appln. which results in partial satisfaction of the decree & is then allowed to be dismissed, & one which is eventually dismissed without any ''fructification.''

The learned Judges of the Madras H.C. in the above-mentioned case examined at length the reasoning of the F.B. case reported in Genda Lal Vs. Hazari Lal, & pointed out that the point was practically concluded by the decision of their Lordships of the P.C. reported in Mungul Pershad v. Grija Kant 8 Cal. 51 , Patanjali Sastri J. remarked:

It is no doubt true, as pointed by the learned Chief Justice in Genda Lal Vs. Hazari Lal, , that in the case before the P.C. the judgment-debtor appeared in the previous execution proceeding in which attachment had been ordered & obtained a stay of the sale acknowledging the validity of the order for attachment & consenting to its continuance, & that their Lordships rested their conclusion also upon such conduct of the judgment-debtor. But this was not the only ground of their decision. It seems to us that the decision is also based on the conclusiveness of the order for attachment made on the petn. of 8-10-1874. We are, therefore, of opinion that an order for execution made after notice to the judgment debtor who does not appear & offer any objection, precludes him from raising a plea of limitation in subsequent proceedings even though the appln. on which the order was passed does not fruotify & is eventually struck off or dismissed.

With respect, we find ourselves in agreement with the decision of the Madras H.C. & the latest decision of the Calcutta H.C. reported in Aswini Kumar Das Gupta and Others Vs. Karamat Ali Kha, . We accordingly hold that it was not open to the judgment debtor to question the execution of the decree ordered to proceed in pursuance of the appln. made in 1947 on the ground that the first execution appl. made in 1943 was time-barred.

The result is that the appeal is dismissed with costs.

Ram Labhaya, J.

I agree.