Bharat Nidhi Ltd. vs M/s Sehgal Bros. and others

S.P. Goyal, J.—This execution first appeal is directed against the judgment of Senior Sub-Judge, Jullundur, dated December 1, 1969, whereby, the execution application as well as the application for attachment of the property of the judgment debtors were dismissed.

The appellant was awarded a decree in the amount of Rs. 31,237/12 annas, on July 31, 1953, against the respondents. In the first execution application filed by the decree-holder, the parties entered in to a compromise on March, 12, 1955, to the effect that the decretal amount shall be paid by an instalment of Rs. 3,000/- every three months and in case of default, the execution could be sought for whole of the amount of the decree. The first two Instalments were paid within time. The third Instalment was paid on December 27, 1955 and the fourth on July 27, 1956. The first default was thus committed in the payment of the instalment due on October 15, 1955, and as a result thereof, the decree holder instituted the execution proceedings on December 28, 1955. The application was opposed by the judgment-debtors who pleaded that the decree was unexecutable as fresh contract had come into being under the said compromise. The objections prevailed with the Court and as a result thereof, the execution application was dismissed on May 17, 1958. Aggrieved by that judgment, the decree holder filed execution First Appeal No. 56 of 1958 in this Court which was allowed by D.K. Mahajan, J (as he then was) vide judgment dated March 14, 960. Two Letters Patent Appeals Nos. 149 and 150 of 1960 were filed against the judgment of the learned Single Judge and during their pendency, execution proceedings were ultimately dismissed on April 24 1961. Again the judgment debtors moved an application for leave to appeal to the Supreme Court which was also dismissed on May 23, 1962.

The learned Single Judge ordered the restoration of the execution application and directed the Court to proceed further in accordance with law. That file could not be traced in spite of the best efforts at the fire had taken place in the Record Room at Jullundur and most of the records were burnt. However, in the fresh application filed for execution on September 18, 1961 it was mentioned that the previous application was consigned to the record on September 7, 1964, the claim of the decree-holder having been partly satisfied, but the property was ordered to remain under attachment. It, therefore, seems probable that the application which was consigned to the Record Room on September 7, 1964 was the one which was ordered to be restored by order of the High Court. The execution application filed on September 18, 1964 was dismissed in default on February 24. 1969 and thereafter the present execution application was filed on March 26, 1969. The judgment-debtors opposed the application mainly on the ground that it was barred by time which objection was upheld and the application dismissed by the impugned order. Aggrieved by the order, the decree-holder hat come up in this appeal.

Before the executing Court it was contended by the decree-holder that he was entitled to deduction of the period during which the decree was held to be unexecutable and if that period is allowed to be deducted, the execution application would be within limitation. The executing Court accepted this contention but taking that the period of 12 years would start from the date of the decree, i.e. July 31, 1953, held the application to be barred by time. This approach was wholly erroneous and it is not disputed by the learned counsel for the respondents'' before me that the limitation would start from the first default committed in the payment of the instalment which means that the limitation of 12 years would start from October 15, 1955 The sole contest, therefore, between the parties during the course of the arguments was as to whether the decree-holder is entitled to claim allowance as state above while counting the period of 12 years.

The relevent provisions of law which govern the matter in dispute is article 136 of the Limitation Act, 1963 (hereinafter called the Act) which provides (limitation of 12 years for execution of any decree and the time begins to run when the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment of money or the delivery in respect of which execution is sought, takes place. Reliance was also sought to be placed by the learned counsel for the appellant on the provisions of section 15 of the Act which lays down that in computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded, it is apparent from the bare reading of section 15 of the Act that it does not apply 50 far as the period from May 19, 1958 to March 14, 1960 is concerned. Consequently the learned counsel has fallen back upon the words of Article 136 according to which the time starts running when the decree or order becomes enforceable. On the basis of this provision it was contended that because the decree remained unenforceable during the period from May 7, 1958 till March 14, 1960, when the judgment was rendered by D.K. Mahajan, J. holding it to be executable. Further it was contended that the period during which the execution, remained stayed under orders of the Letters Patent Bench that would be deductible under the provisions of section 15 of the Act. If both these periods are allowed to be added to the period of 12 years, it is not disputed that the present execution application would be within limitation. There is also no dispute that the period during which, the execution remained stayed by the orders of the Letters Patent Bench would also be excluded while counting the limitation of 12 years by virtue of section 15 of the Act So the dispute between the parties is confined to the period during which the decree was declared unexecutable by the executing Court.

In support of his arguments, the learned counsel for decree-holder relied on Rameshwar Singh v. Homeswar Singh AIR 1921 P.C. 31, Vempati Mangamma Vs. Dyta Narayanappa, and Chanda Devi Vs. Natthu Singh and Others, . The two other decisions, i.e. Gopal Chand Bhalla Vs. Gobind Sarup and Another, and Bawa Singh v. Balbhadar Dass AIR 1964 P&H. 207, cited by him have, however, no bearing on the facts of the present case. In Rameshwar Singh''s case (supra), their Lordships of the Privy Counsel held that in order to make the provisions of the Limitation Act apply the decree sought to be enforced must be in such a form as to render it capable, in the circumstances, of being enforced. In Vempati Mangamma''s case (supra) it was ruled that where a decree is declared unexecutable before the execution is otherwise barred, and that decision is reversed later and the decree is thereby rendered executable the subsequent application for execution should be regarded as one falling under Article 181 of the Limitation Act (1908) and fresh period of limitation runs from the date when the decree is rendered executable. Similarly, it was held in Chanda Devi''s case (supra) that the law of limitation would apply only if an operative decree were in existence.

The learned counsel for the respondents, on the other hand, contended that the provisions of section 15 of the Act are of no avail to the decree holder as its applicability is restricted to a case where its execution is stayed by injunction or order. In support of this proposition, he relied on A.S. Krishnappa Chettiar and Others Vs. Nachiappa Chettiar and Others, and Sirajul Haq Khan and Others Vs. The Sunni Central Board of Waqf, U.P. and Others, . As observed above, there is no doubt on this matter and the period during which the decree was declared unexecutable cannot be excluded by invoking the provisions of section 15 of the Act but the deduction of this period, is claimed by the decree holder by virtue of the provisions of Article 136 of the Act which provide that time would start to run when the decree or order becomes enforceable. It was then contended by the learned counsel for the respondents that the decree was declared to be unenforceable by the executing Court vide judgment dated May 17, 1958 and after the judgment of the High Court that application was restored and dismissed on September 7, 1964, the claim of the decree-holder having been partly satisfied. According to the learned counsel, it could be only for the purpose of first application that the period daring which the decree remained unenforceable could be deducted The learned counsel, therefore, argued that the benefit of the said period had been availed of by the decree-holder as his original application had been restored and thereafter he would not be entitled to the benefit of the period during which the decree was declared to be unenforceable. I am, however, unable to agree with this contention of the learned counsel. The limitation, as already observed, starts running from the date when the decree or order becomes enforceable which obviously implies that during the period in which the decree is declared by the order of the Court to be unenforceable has to be deducted while courting he period of twelve years and the contention of the learned counsel for the respondents that the period could be deducted for filing of the application immediately after the decree was restored or held unenforceable cannot be accepted. 1 am, therefore, of the considered opinion that by virtue of the provisions of Article 136, the decree-holder is entitled to deduct the period during which the decree was declared unexecutable while counting the period of 12 years irrespective of the fact whether the execution application is the one filed immediately after the decree was declared executable or any subsequent application.

As already observed above, if the period during which the decree was declared unenforceable and the period during which its execution remained stayed under orders of the Letters Patent Bench is conducted from the period of 1? years, the present execution application filed on March 26, 1969 would be deemed to be within limitation.

In view of the above discussion, this appeal is allowed, the impugned judgment is reversed and the case is sent back to the Executing Court for further proceedings in accordance with law. No costs.