Harihar Gir vs Dulhin and Others

This is an appeal by Mahanth Harihar Gir, one of the judgment-debtors, against an order rejecting his objections u/s 47, Civil P.C. Of the various objections taken by him, the only one pressed in this appeal is that the execution is barred u/s 48, Civil P.C., having been filed more than twelve years after the date of the decree. The decree under execution is a mortgage decree which was passed on 23rd December 1923, and the present execution was filed on 24th February 1936, under the following circumstance''s: The first execution was taken out in Execution Case No. 214 of 1926. In course of that execution, some of the judgment-debtors interested in items 1 to 5 of the mortgaged properties paid Rs. 4800 to the decree-holders on or about 12th April 1929, on the understanding that the other mortgaged properties, namely items 6 to 9 would be first put up to sale for realization of the balance of the decretal amount, and in case of deficiency, items 1 to 5 might be sold. On 12th April 1929, the decree-holders accordingly prayed for sale of items 6 to 9 and the prayer was allowed by the Court after hearing the parties concerned. On 15th April 1929, items 6 to 9 were sold and purchased by outsiders and the sale proceeds were sufficient to satisfy the decree.

On 11th May 1929, Jagat Prasad Singh, one of the judgment-debtors who was interested in the properties sold, deposited the decretal amount with compensation and prayed for setting aside the sale under Order 21, Rule 89, Civil P.C. Almost immediately afterwards Jagat Prasad brought a Title Suit No. 21 of 1929, for a declaration that the mortgage decree and the; auction sale were not valid and binding against him and for refund of the money that was deposited by him under Order 21, Rule 89. By an order passed in that suit on or about 16th May 1929, the decree-holders were restrained from withdrawing the money deposited. Thus, the decree-holders could not withdraw the money which remained in deposit. The last order in the execution case was recorded on 23rd May 1929, to the effect that the case was dismissed on full satisfaction and the sale was set aside. The Title Suit No. 21 of, 1929 was eventually decreed on 27th February 1933 and Jagat Prasad was allowed to obtain a refund of the money which he had deposited under Order 21,Rule 89.

Against this decision, the decree-holders, on 10th July 1933, preferred an appeal to this Court which was not decided until 27th August 1938. This Court substantially confirmed the decree of the trial Court. In the meantime, the present application to execute the decree by sale of the properties Nos. 1 to 5 was presented as already stated on 24th February 1936, and numbered as Execution, Case No. 38 of 1936. It was resisted on various grounds; but we are only concerned here with the plea that it is barred by time.

The date, 24th February 1936, was nearly seven years after the dismissal of the execution case on 23rd May 1929, and the judgment, debtor''s first objection was that the fresh execution was barred by Article 182 of the Schedule to the Limitation Act. This was negatived because the right to execute the decree was in suspension from 1929 until the disposal of Jagat Prasad''s title suit. The right revived on 28th February 1933, with the result that for the purposes of Article 182, the decree-holder was entitled to count a period of three years from 28th February 1933. Thus, the Subordinate Judge''s decision regarding Article 182 was correct. That Article did not bar a fresh execution presented on 24th February 1936, and it is not contended before us that Article 182 stood in the decree-holder''s way. This, however, will not entitle the decree-holder to present a fresh application beyond the period of twelve years from the date of decree laid down in Section 48.

The question, therefore, is whether this application presented on 24th February 1936, is a fresh application to execute the decree. We have referred to the application itself, and it is in the form prescribed for a fresh application to execute a decree. In para. 1 it mentions Execution Case No. 214 of 1926 as being a previous execution case and states that the applicants after giving set off of the amount realized "file this execution case jointly against all the judgment-debtors for the balance of the decretal amount." Particulars follow of the amount due calculated up to the date of the present application and then a list of the judgment-debtors. Then there is a prayer for substitution of parties and also for notices under Order 21, Rule 22. It recites the history of Jagat Prasad''s title suit and says in para. 16:

Because after the passing of the judgment dated 28th February 1933, in the said title suit, these applicants were required to take out the present execution by reason of the said judgment they file this application for execution in this Court.

There is no indication throughout the application that the decree-holders intended or desired it to be treated as one made in continuation of the proceedings already commenced. Nor did the decree-holders, up to the time of hearing their objections, ever petition the Court in writing to treat it as anything but a fresh application. If therefore we are to be guided by the form of the application and are to have regard to what the written word contains, it would seem prima facie to be a fresh application and as such barred by Section 48. This is how the appellant asks us to treat it. The respondents, however, contend that regard is to be had to substance rather than form and that although their application may have been otherwise framed, it is in substance an application to continue the earlier execution and ought to be treated as such.

The first condition necessary to sustain the plea that the present application should be treated as an application to continue the earlier execution is that the earlier execution case must not have been finally disposed of. If it was so disposed of, no question of continuing it can arise. If, on the other hand, there was an interruption in the earlier proceeding by reason of which the Court, being unable to grant the appropriate relief, struck off the case, it cannot be said to have been finally disposed of. It will then be considered to be still pending, and may, if proper case is otherwise made out, be revived and continued. From the state of facts given above, it is obvious that on account of the injunction that was passed, in the Title Suit No. 21 of 1929 the executing Court was unable to pay out to the decree-holders the decretal amount which was deposited under Order 21, Rule 89, Civil P.C. Until the amount was available to the decree-holders the decree could not be said to have been satisfied.

The order passed on 23rd May 1929, dismissing the execution case on full satisfaction in the face of the injunction was therefore meaningless. Though on the strength of this order it was contended, but unsuccessfully, in, the lower Court that the decree was fully Satisfied and no further execution could lie, that contention has been rightly abandoned by Sir Manmatha Nath Mukherji in this Court. The true effect of the said order dated 23rd May 1929, in our opinion, must be taken to be that the Court struck off the case, being unable to proceed with it on account of the injunction. In this view the execution case of 1926 may be considered to be still pending.

Now we have to consider the question whether the present application, though in form a fresh application under Order 21, Rule 11(2), Civil P.C., can be regarded as an application to continue the previous execution. For this purpose, it will be necessary to refer to the case law on the point. In Booboo Pyaroo Tuhobildarinee v. Syed Nazis Hossain (1875) 23 WR 183 the execution proceedings instituted by the decree-holder were interrupted by a claim case instituted by a third party and the claim being allowed, the execution case was struck off on 7th June 1870. The decree-holder then brought a suit to have it declared that the property in reality belonged to his judgment-debtor and was applicable to the payment of his debts. The suit was decreed on 28th February 1873, and on 5th December 1873, the decree-holder made the application to execute his decree which was resisted on the ground that it was barred by limitation. The remedy sought was sale of the same property which the decree-holder had sought to sell in 1870.

It was held that the order striking off execution proceedings in consequence of the result of the claim case was not final being subject to revision in a regular suit. The decree-holder having proved the result of the claim case to be erroneous and thus become entitled to sell the particular property, the Court held:

Whatever may be the form of the last application dated 5th December 1873, in substance, it was an application to the Court for the continuation of the former proceedings on the ground that the bar that was set up by reason of the adverse order u/s 246 had been removed by the decision in the subsequent regular suit.

Their Lordships further observed:

The view we have taken of these proceedings is not open to the observation that the time for executing the decree in such a case thus becomes practically unlimited. Though, in the present case, we hold that the striking off the execution case did not, under the ciroumstances, put an end to the proceedings, we do not say that if the judgment-creditor had been dilatory or negligent in pursuing his remedy that the result would have been the same. What we hold is that having diligently pursued his remedy to get the order u/s 246 set aside, it may fairly be held that the execution proceedings in this case have been continuous, and that he is proceeding now, not upon a fresh application, but upon his former application.

This decision was followed in the same Court in Issurree Dassee v. Abdool Khalak (1879) 4 Cal 415. In this case, the first execution proceeded to sell an attached property, the sale proceeds being paid over to the decree-holder and the execution proceedings struck off on 28th July 1872. The judgment, debtor however obtained on 14th May 1873 an order setting aside the sale and for refund of the sale proceeds. On the decree-holder''s application dated 22nd December 1874, to execute the decree, it was held that the application fell within the principle of the earlier decision. It was said:

It is true that the Court executing the decree disposed of the application of 10th July 1871, after the judgment-debtor''s property was sold; but the effect of the subsequent order dated 14th May 1873, by which the sale was set aside and the decree-holder directed to refund the money which he had withdrawn from the Court, wag to nullify all the proceedings taken on the application of 10th July.

It would seem that in the latter application the decree-holder was asking the Court to sell the same property the sale of which had fallen through. The Hon''ble Judges thought that although in point of form the petition of 22nd December 1874 was an application to execute the decree, in reality it was simply an application to the Court to continue the proceedings already commenced.

A similar view was taken by a Fill Bench of the Allahabad. High Court in Paras Ram v. Gardner (1877) 1 All 355 , which like the earlier of the Calcutta decisions was a case in which the decree, holder had had to bring a regular suit to reverse the decision in a claim case and had succeeded in that suit.

The above decisions were considered in the Allahabad High Court in Khair-un-nissa v. Gaud Shankar (1881) 3 All 484 where the facts were somewhat different. The decree-holder had obtained two decrees on bonds executed in his favour by Syed Muhammad and his wife Khair-un-nissa, respectively. He put to sale properties left by Syed Muhammad and standing in the name of his widow Khair-un-nissa and appropriated the sale proceeds to the satisfaction of both his debts. Satisfaction was entered and the execution proceedings struck off on 10th September 1877; but other heirs of Syed Muhammad by suit against the decree-holder recovered from him such portions of the proceeds of the sale as had been, appropriated towards the bond executed by Khair-un-nissa.

The decree-holder then sought to execute the decree for the amount due on: Khair-un-nissa''s bond but the Court held that the circumstances did not come within the principle of the cases cited that if the decree-holder had the misfortune to buy something that his judgment-debtor had not to sell, he had only himself to blame for putting up an interest to sale that did not exist. Under such circumstances, it would seem that satisfaction was rightly entered up and the execution proceedings properly struck off. It was therefore held that the present application to execute the decree was a fresh application and was barred by the three years'' rule.

In a Full Bench decision of the Allahabad High Court in Rahim Ali Khan v. Fulchand (1896) 18 All 482, Section 230, Civil P.C., 1882, corresponding to Section 48 of the present Code was considered. In this case the decree had been passed on 9th April 1880, and in execution on an application presented on 28th September 1885, attachment was duly made. There were protracted and contentious proceedings for determining the saleability of various items of the property. A sale which had been held was on 13th February 1892 set aside as regards part of the property sold and con-firmed as to the remainder and the Court then passed an order directing that the execution proceeding be struck off as partially satisfied with leave to the decree-holder to take any further steps in execution hereafter. The decree-holder on 19th February 1894 petitioned to the Court to restore to the file the execution proceedings which had on 13th February 1892 been struck off and to grant the reliefs prayed for in the application of 28th September 1885. Knox J. in his judgment emphasized that the form of the application was not an application to execute afresh but to continue the former execution.

In terms the application of 19th February 1894 was an application praying that Execution Case No. 413 of 1890 struck off on 13th February 1892, be restored to its original number and sale notification be formally issued in respect of the properties previously attached. Banerji J., after pointing out that in form it was not an application for execution as contemplated by Section 235 held further that it was not in substance an application for execution such as was contemplated by Section 230. In this decision both the form and the substance of the application were considered and from both points of view, the same conclusion had to be arrived at. A similar position arose in Kamaruddin v. Jawahir Lal (1905) 27 All 331, a case which came before the Judicial Committee of the Privy Council. Here the application by its terms asked that the execution previously instituted might be revived. Their Lordships held that the earlier execution proceedings

were never finally disposed of and that the application now under consideration was in substance as well as in form an application to revive and carry through a pending execution suspended by no act or default of the decree-holder and not an application to initiate a new one.

Up to this point while decisions in the Calcutta High Court clearly support the view that substance is to be regarded even where it conflicts with the form of the application, that position does not seem to have been definitely accepted in the Allahabad High Court and the question did not directly arise before the Judioial Committee of the Privy Council either in the decision last cited or in Maharajahdhiraj Mahtab Chand Bahadur v. Bulram Singh (1870) 18 MIA 479 but the Allahabad High Court have definitely accepted this proposition in Santi Lal Vs. The Indian Exchange Bank and Another, . Here the facts were that the decree was-passed on 11th July 1902 and the application for execution was made on 13th November 1914. It was in form a fresh application but the relief sought was a sale of certain property for which the decree-holder had already applied to sell on 12th June 1912.

The sale could not at once be held because of a suit instituted by the-judgment-debtor''s son claiming a declaration that the property attached was not liable to sale in execution of this decree. The suit succeeded in the first Court but on appeal the decree-holder succeeded, and obtained an order from the Appellate Court, on 28th August 1914. The appellate order discharged an injunction granted on 23rd January by which execution of the decree was suspended. The Judges who decided the case were both of opinion that the question whether the application before; them was a new application or one in continuation of the former execution was a question of fact and not of law. It was to be determined on. the facts of the particular case, and in this determination, substance and not form was to be regarded. The facts of the case were on all fours with those in Booboo Pyaroo Tuhobildarinee v. Syed Nazis Hossain (1875) 23 WR 183 Walsh J. observed that if the decree-holder were held to be time barred, the result, if a Court were driven to it, would be most unfortunate because it would be to turn what is intended as an instrument of justice into an instrument of injustice.

A similar view was taken by the majority of the Judges who decided B. Shiva Shankar Das and Others Vs. Mufti Syed Yusuf Hasan In this state of the authorities, we must hold that regard is to be had to substance rather than to the form of the application. The second application will not, however, be considered to be a continuation of'' the former one if it is found to be different in its scope, or if the former execution is found to have been abandoned by the decree-holder or to have been dismissed through his default or laphes: In Kesho Prasad Singh v. Harbans Lal AIR 1920 Pat 570 a mortgage decree had been obtained on 7th September 1905 and an execution pending In 1914 was met with objections u/s 47, Civil P.C., which resulted in an order exempting from sale the properties in respect of which the objections had been presented, but directing the sale of three plots which were the subject of the mort-gage. Thereafter the decree-holder not having taken steps in the execution, the case was dismissed for default. An application thereafter presented on 3rd September 1917 was held to be barred by time. It was said that the relief in the present application to sell the mortgaged properties was not the same as in the former application where the prayer was to sell the other properties as well.

Therefore, the subsequent application was not identical in its scope and character with the former one. It was further said that a subsequent application for execution cannot be considered as a continuation of the former one if the former one had been dismissed through the fault or laches on the part of the decree-holder in the prosecution of the execution. A distinction is drawn between this case in which the earlier execution broke down because the decree-holder was seeking to sell the property which he was not entitled to sell and such cases as Madhab Mani Dasi v. Lambert (1910) 87 Cal 796 where the setting aside of a sale was considered to restore the parties to the position which they would have occupied if the sale had mot taken place and an application of the decree-holder for an order absolute for sale was proved to have been erroneously dismissed.

In Maharaj Bahadur Singh v. A.H. Forbes AIR 1929 PC 209 which is a decision of the Privy Council, the facts were that a zamindar who had sold his zamindari on 27th June 1893 instituted a suit for his own arrears of rent against the patnidars on 21st September 1893 and obtained a decree on 10th July 1896. An application for execution of the decree was made on 9th May 1908 on the footing that the decree was a rent decree creating a charge on the tenure. Subsequently, in a suit between the parties concerned, it having been held by their Lordships of the Judicial Committee in 1914 that the decree of 10th July 1896 was not a decree for rent creating a charge on the tenure but only a money decree, the decree-holders presented three successive applications for execution on 22nd January 1915, 19th March 1917 and 23rd November 1918 on the footing that the decree of 10th July 1896 was a money decree. These applications being infructuous, the decree-holders presented a fresh application on 2nd December 1922 for execution of the decree of 10th July 1896 as a rent decree creating a charge on the tenure.

This application being presented more than 12 years after the date of the decree, the decree-holder contended that it should be treated as a continuation of the application for execution which had been filed on 9th May 1908. Their Lordships of the Judicial Committee agreeing with the decision of the lower Courts rejected this contention. Their Lordships observed as follows:

Their Lordships have no doubt that the applications of 22nd January 1915, 19th March 1917 and 28rd November 1918, were essentially different in character from the application of 9th May 1908, and they are inclined to the view that the decree-holders had abandoned the application of 9th May 1908, which proceeded on the footing that their decree created a charge on the tenure, but in any event they are clearly of opinion that the combined effect of these previous applications marks such substantial departure from the original application of 9th May 1908, as to make it impossible to hold that the application of 2nd December 1922, was a continuation of the application of 9th May 1908.

In order to apply the principles deducible from these decisions to the case before us, it is necessary to examine the facts of the case before us. The application which the decree-holder says he is now still continuing was presented on 7th July 1926, (Ex. 1). Prayer was made for sale of nine properties, in five of which the present objector was interested, those being Nos. 1 to 5 of the schedule while other parties were interested in properties Nos. 6 to 9. In April 1929, the proceedings had reached the stage of being ripe for sale and properties Nos. 1 to 4 of the sale proclamation were actually put up and a bid was made on behalf of the decree-holder which, according to the purport of the order sheet dated 12th April 1929, would appear to have been sufficient to satisfy the entire decree. The sale, however, was not knocked down but kept on hammer. On 12th April 1929, the decree-holder acknowledged receipt of Rs. 4800 from the present objector and two other parties of judgment, debtors and prayed that the sale of properties Nos. 1 to 5 be postponed and that of properties Nos. 6 to 9 proceeded with for the balance of the decretal amount. This was opposed by Jagat Prasad, judgment debtor 27, who contended that the decree could have been satisfied by accepting the bid in respect of properties Nos. 1 to 5 of the sale list. The objection was, however, disallowed, the decree-holder''s petition accepted, the auction of properties Nos. 1 to 5 was abandoned, and the decree-holder was allowed to put up properties Nos. 6 to 9 of the list. The petition of the decree-holder dated 12th April 1929 did not ask that properties Nos. 1 to 5 be completely exempted from sale but prayed

for the sale of properties Nos. 6, 7, 8 and 9 as mentioned in the sale list of the execution petition for realization of the balance of the decretal amount, and in case of deficiency, the sale of properties Nos. 1 to 5 of the said list.

To this prayer the present objector and others who had paid portions of the decretal amount assented. It would seem therefore that the relief claimed in the present application was a relief contemplated by the parties in the event of the decree not being satisfied by sale of properties Nos. 6 to 9. The present application is therefore within the scope of the former execution. It is also in substance an application to continue the previous execution because what the decree-holders now really ask for is that the sale of properties Nos. 6 to 9 having proved abortive, the sale of the other mortgaged properties may be proceeded with. It remains to consider whether the failure of the execution proceedings against properties Nos. 6 to 9 was due to any default on the part of the decree-holder. Jagat Prasad''s challenge to the decree against him succeeded on the ground that the decree as against Jagat Prasad was a nullity having been passed against a minor without taking proper steps for his representation. We have not been shown the judgment in Title Suit No. 21 of 1929 but it is stated by the Subordinate Judge in the order now under appeal that:

In the Title Suit No. 21 of 1929, Jagat Prasad, prayed for a declaration that he is not liable to contribute any amount and that the sale of his property is null and void and without jurisdiction.

The Subordinate Judge says:

From all these judgments it is clear that the sale held in Execution Case No. 211 of 1926 was declared null and void and Jagat Prasad was ordered to withdraw the money deposited by him in the above execution case.

It is also stated that the suit was decreed against defendants 1 to 14, the decree-holders, but dismissed against the other defendants. It may be inferred that Jagat Prasad did not get as against the other judgment-debtors a declaration that he was hot liable, to contribute any amount. Cats it then be said that the failure of the decree-holders to sell properties Nos. 6 to 9 and to exhaust their remedy against Jagat is a default or laches disentitling them to revives their former execution? The answer seems to be that such a default must be default or laches in executing the decree and not way defect in the decree itself. For the aforesaid reasons we hold that the application for execution presented on 24th February 1936, should be treated as a. continuation of the previous application which was filed in Execution Case No. 214 of 1926. In that view the bar of Section 48, Civil P.C., does not apply. We accordingly dismiss the appeal but, in the circumstances, without costs.