Deonarayan Singh vs Ram Prasad and Another

Bucknill, J.—This was a second appeal. The appellant was a judgment-debtor in a suit brought by the respondents who were decree-holders. The present appeal arises out of certain execution proceedings. Apparently as long ago as 24th July 1920 the respondents obtained a decree against the appellant. On 21st May 1923 the decree-holders presented a petition for execution, and on 19th November 1923 it would appear that a sale took place of the property. I may say that it would seem that this decree was obtained by the respondents as cosharer landlords and notice had been issued by them against other cosharer landlords under the provisions of the Bengal Tenancy Act. For some reason or other this notice was stated not to have been properly served and the Munsif, before whom the matter in execution then was, insisted that the execution should proceed as a money-decree and not as a rent-decree. It appears to have proceeded in that way. The sale was actually confirmed on 20th December 1923 and we are told that the case was dismissed on full satisfaction. However according to the information before us on the same day, (that is on 20th December 1922), the judgment-debtor put in a petition to set aside the sale under the provisions of Order 21, Rule 90. Now we are told that the ground upon which it was asked that the sale should be set aside was that the price in the sale proclamation at which the property was valued was not adequate. Eventually, on 8th March 1924, the sale was set aside, and on the 24th of the same month the decree-holders then applied once more to execute their decree. They still asked to execute the decree in precisely the same manner as they had asked to execute it in the first instance, namely, as a rent-decree. Now to this the judgment-debtor objected on the principal ground that the application was more than three years from the date of the original decree. As I have said, the original decree was dated 24th July 1920, the first application for execution was dated 21st May 1923 and this last application for execution was dated 24th March of last year. Now, the decree-holders have maintained that limitation does not apply. They contend that the present application should be treated as essentially a continuation of the, preceding application. The Munsif of Gaya, after hearing the parties, came to the conclusion that this present application was rightly to be regarded as a continuation of the preceding one and accordingly, by his order dated 26th July 1924 disallowed the objection which had been made to the present application for execution. The judgment-debtor appealed from this decision to the District Judge of Gaya, who on the 18th December, confirmed the Munsif''s decision. Now, before the District Judge, it would seem that not only was this point as to the present application being not in continuation of the previous application urged but also that the present application was not of the same character as the first application. I think it is simplest to deal with the latter of these two questions first.

It is quite clear that the first application for execution was an application to execute the decree as a rent-decree. It seems true that owing to the decision of the Munsif at that time, and owing to the fact that he found that there had been some failure of service on the co-sharers, the actual decree which was executed was a money-decree, but, as has been pointed out by the learned District Judge, the present application for execution is to renew the application for execution as a rent-decree and not as a money-decree, and I presume that the service will be properly effected upon this occasion. I am, therefore, unable to sea how it can be seriously contended that the first and the second applications are not the same.

With regard to the first point: I think that it is important to observe that during all material periods under consideration the decree-holders had de facto and de jure obtained the realization of their decree. It was not until 8th March 1924 that it was possible for them to have taken any further step. According to the position as it then stood their claim had been satisfied by a sale of the property. It was not until that satisfaction was negatived, as I have just mentioned, that he was in a different position. He could have taken no step in the interim to apply for further execution or for a renewal of execution; for, had he done so, he would obviously have been met with the rejoinder that as matters stood his decree had already been realized in full satisfaction; that he should be prevented when the sale was set aside from applying to obtain what was justly due to him by execution would obviously to my mind be a gross inequity.

However, the learned advocate, who has appeared for the appellant here, has suggested that the present application is not in law a continuation of the preceding application. I should like, however, to point to a case which has been decided in this Court: Musammat Kaniz Zohra and Another Vs. Rai Syam Kisen and Another, , in which the position which obtains here, except in one point, to which I propose presently to refer, was there substantially the same. In that case decided by the then Chief Justice (Sir Edward Chamier) and Mr. Justice Jwala Prasad it would appear that a decree had been obtained by the plaintiff in a suit on 20th June 1905. In August 1906 the first application for execution was made. It would seem that this application for some reason was dismissed; probably, (although it is not clear from the report) because it was not proceeded with. A second application was made in July 1909 and the judgment-debtor''s immovable property was sold in satisfaction of the debt on 14th December 1909. But on 12th February 1910 the sale was set aside at the instance of the judgment-debtor; on what ground I do not find it stated. On 10th December 1912 the decree-holders made their third and last application asking the Court to sell the identical property in satisfaction of their decree (which, of course, still subsisted) which had been sold on 14th December 1909. It was contained in that case by the judgment-debtor, who objected to the proposed third application for execution, that the application could not be regarded as a continuation of the preceding application and that it was out of time. The learned Chief Justice, in referring to this argument has dealt with the position as it appears to him to exist in cases where this same difficulty arises as it often must. Ho remarks:

it may often happen that proceedings taken upon an application for execution remain pending in an original Court or appeal for several years and may result in an order setting aside a sale of immovable property many years after the application for execution was presented and many years after any of the dates indicated in the third column of Article 182 of the Schedule 1, Lim. Act. This has often been pointed out by the Courts, and in order to get over the difficulty some Courts have held that a subsequent application should be treated as an application made in continuation of the application made before the sale, and other Courts have held that such an application is governed by Article 181, of the Schedule 1 to the Limitation Act, and that the decree-holder is entitled to three years from the date on which the sale is set aside within which to make a further application. It seems certain that the Legislature could not have intended that further execution of a decree should be prevented by the fact that execution proceedings remained pending in the Courts for many years.

I think (if I may be permitted to say so) that those words express the equitable views of the position which should obtain in a case such as that which is now before us. The learned advocate for the appellant has suggested that although the remarks; to which I have referred, of the then Chief Justice of this Court may be applicable to what he calls execution under the general law, they are not applicable to cases where the execution relates to suits which fall within the ambit of the Bengal Tenancy Act. He points to Section 29, Lim. Act, and shows how it indicates in Sub-clause (b) of Clause (1) that "nothing in the Limitation Act shall affect or alter any period of limitation specially prescribed for any suit, appeal or application by any special or local law now or hereafter in force in British India." He points to the Bengal Tenancy Act and in particular to Item No. 6 of Part. 3, Schedule 3. He observes that there is a period of limitation given. I may point out that clearly the period which is there given is one of three years. This period refers to an application made under the Act in a suit between landlord and tenant and not being decreed for a sum of money exceeding Rs. 500. Now he points out that in this case the sum did not exceed Rs. 500. He then refers to the times from which the period of limitation begins to run. They are (1): the date of the decree or order; or (2), where there has been an appeal, the date of the final decree or order of the appellate Court; or (3), where there has been a review of judgment, the date of the decision passed on the review. He suggests that in the case of setting aside of an execution proceeding, (that is to say, in this case the setting aside of the sale which has taken place in an execution proceeding), none of these three categories (except perhaps the first) apply. Whether this is so or not (that is to say, whether it may come under Sub-section (3) or not) does not to my mind matter. If there was no provision in this Part 3, Schedule 3, for a case such as that which is before Us, then it-seems clear that Section 29, Lim Act, has no application and the matter falls within the provisions of the ordinary law as has been laid down by the late Chief Justice of this Court in the case to which I have referred. Obviously it would be a matter of the greatest hardship if in circumstances such as those which have been disclosed in the present case a decree-holder, not clearly through his own fault and certainly not by fraud but for one reason or another, should have his sale, which has been carried out in execution of his decree under which he was entitled to recover from the judgment-debtor what was due to him, set aside and should on that account be prevented from eventually recovering by further executions proceeding the sums to which he was entitled. In my view therefore the District Judge and the Munsif were quite right in the orders which they made.

The appeal must therefore be dismissed with costs.

Ross, J.

I agree.