Anandilal vs Ramnarain

V.R. Newaskar, J.—This appeal, which arises cut of execution proceedings for the realisation of money, involves mainly the question as to the applicability of Section 15(1) of the Limitation Act for saving the execution petition from being barred by limitation. The Court below has applied that provision and held the execution petition as not barred u/s 48 C. P. Code by the 12 years Rule. This appeal is preferred by the unsuccessful judgment-debtors and two questions are mainly raised namely:

(1) The order for stay should have been passed by the Court having jurisdiction to entertain the proceeding in which the order (or stay was passed.

(2) In order that Section 15(1) of the Limitation Act may apply the execution should have been stayed by an order for stay not only partially but completely so that the decree-holder is left without a remedy for securing realisation of his decretal dues.

At the hearing question No. 2 alone was pressed and it was frankly conceded that where an appeal is entertained and an order for stay is passed the mere fact that it is later dismissed as incompetent will not have the effect of there being no order for stay at all and the decree-holder will be incompetent to flout the order for stay passed in a judicial proceeding against him. It was accepted that an order for stay could properly be passed even before considering the question regarding the tenability of the proceeding which are appellate in character.

The material facts for consideration of the second question are as follows:

On 14-6-1927 the Respondent obtained a decree for money. There was an appeal against the decree in the course of which the father of the present Appellants stood surety. The appeal was dismissed on 5-4-1938. The surety had agreed to discharge the liability of the judgment-debtor to the extent of Rs. 6,057-13 6 together with future interest awarded by the decree. On 23-2-1939 the decree-holder filed execution application No. 41 Sam-vat Year 1995. By this execution application the decree-holder sought realisation of his dues from the principal judgment-debtors as also from the surety Ratanlal. On 24-4-1939 the decree-holder submitted an application seeking attachment of the property moveable and immoveable of the judgment-debtors as well as surety. The Court ordered issue of warrant of attachment against the principal judgment-debtor but directed the decree-holder to produce a copy of the surety-bond of the surety Ratanlal before any order against him could be passed. On 26-5-1939 this copy was produced when an order for attachment of his movables was directed to be issued against the principal debtors as well as the surety on the same day. On 10-6-1939 the decree-holder submitted an application stating the circumstances, in which the attachment of Ratanlal''s moveables could not take place and praying for attachment or his houses, list and description whereof was appended to the application. In the meanwhile the decree-holder died. An application was submitted by his legal representatives to continue the execution proceedings. Ratanlal also submitted his objections on the ground that an order for attachment of his movable had been passed without notice to him which was illegal. On 17-11-1939 the surety submitted further objections to the levying of execution against him. All the objections were overruled by the executing Court by its order dated 9-12-39.

The surety preferred an appeal to the High Court which was dismissed on 22-7-1940. Against this order a further appeal was preferred to the Judicial Committee Hazur Darbar. This appeal was numbered 1 of Samvat Year 1997. An order for stay was passed on 16-8-1940 by the Judicial Committee in the following terms-

Write to the Adalat Sessions Judge Ujjain to stay further proceedings of auction sale maintaining attachment and notice shall issue to the decree-holder why the order be not made absolute during the pendancy of the appeal.

On 5-12-1940 the decree-holder applied for attachment or some debts due to judgment-debtor Ratanlal from his debtors. An order for their attachment was passed on 6-12-1940. On 9-12-1940 the decree holder then applied for the attachment of the property of the principal judgment-debtors. On 11-12-1940 the Court passed an order for attachment of property of the said judgment debtors as given in the list attached to the application aforesaid. The appeal No. 1 of Sam-vat Year 1997 was dismissed by the Judicial Committee in so far as it related to the liability of the surety by its decision dated 4-12-1944.

It is not disputed that if this order of stay be taken to be sufficient to attract the application of Section 15(1) of the Limitation Act then the present execution petition filed on 18-2-1954 would not be barred by time. The only material question then is to consider the effect of the order for stay of execution dated 16-8-1940 which continued to remain in force till 4-12-44. While on behalf of the judgment-debtors it is contended that the stay was only partial and the decree-holder was not prevented from proceeding against the other property of the judgment-debtors or against the other judgment-debtor, it is asserted on behalf of the decree-holder that the order for stay had prevented the decree-holder from proceeding with their execution petition and that it is enough for attracting the applicability of Section 15(1) of the Limitation Act.

In AIR 1944 155 (Nagpur) , it is held by Grille C. J. and Sen J., that provisions of Section 15 of the Limitation Act can be invoked in computing the period of limitation u/s 48 C. P. Code. It is further held in that case that where the order staying execution is not restricted as regards a particular judgment-debtor or in respect of the money recoverable-under the decree but is in respect of the decree and prevents the decree-holder from executing the decree against the other judgment-debtors also it was an order for stay within the meaning of Section 15. The decision in AIR 1940 Patna 149 Nathuni Prasad v. Firm Radha Kishun, which held that where the application for execution as against one of the judgment-debtors was stayed during his insolvency proceedings, but the decree holder was free to execute the decree against others, the decree-holder could not claim the benefit of Section 15 of the Limitation Act, was distinguished in that case on the construction which their Lordships put to the order for stay in that case.

In AIR 1940 75 (Lahore) , it was held by Din Mohammad J., that if execution is not completely and absolutely stayed Section 15 does not come into play. Decisions Raja Kirtyanand Singh and Others Vs. Raja Pirthiohand Lal Choudhri, , ILR 48 Bom 485 Chanbasappa Nagappa v. Holibasappa Basappa and AIR 1933 Mad 418 Tripura Sundaram v. Abdul Khadar were followed. In Raja Kirtyanand Singh and Others Vs. Raja Pirthiohand Lal Choudhri, , it was held that where the order does not contemplate absolute stay and it is permissible to the decree-holder to proceed against the surety or other properties of the principal judgment-debtors Section 15 of the Limitation Act cannot be invoked. In Virchand Kapurchand Vs. Marualappa, , Divatia and Sen JJ. approved of the decision in AIR 1940 75 (Lahore) .

It is clear from these decisions that in order that a decree-holder can claim benefit of Section 15 of the Limitation Act the order for stay of" execution of the decree should be absolute and when construed properly should leave no room for the decree-holder to secure realisation of the fruits of his decree. In the present case all that the impugned order did was to maintain attachment of certain property of the surety and to prevent further proceedings in sale thereof. But on the terms of the order the decree-holder was not prevented from proceeding otherwise for the execution of the decree. In fact the Executing Court premitted execution against by attaching debts of the surety. It further permitted attachment of properly of the principal judgment-debtors. Even assuming that on proper construction of the order for stay proceedings against the other property of the surety might have been stopped if it had been brought to the notice of the Judicial Committee, fact remains that on the terms of the order the executing Court felt free to proceed as it did. In this state of things it cannot be said that there was absolute stay of execution of the decree so as to attract Section 15(1) of the Limitation Act.

The view taken by the Court below is therefore erroneous. The appeal is consequently allowed and the application for execution is held as barred u/s 48 C. P. Code since the decree-holder cannot claim benefit of Section 15 of the Limitation Act. The Appellants are entitled to their costs of this Court as well as of the Court below.