Jagdeo Singh and Another vs Babu Lal Sah

Agarwala, J.—On nth June 1935, Babu Lal Sah and Mt. Eamjhari Kuer obtained a decree for rent against Jagdeo Singh and others. Babu Lai Sah alone applied for execution of this decree on 2lst June 1938. In the appropriate column of the application for execution the names of both the decree-holders were stated and Mt. Ramjhari in fact appeared in the execution proceedings.

Two questions have been raised in this appeal by the judgment-debtor-appellants. The first is whether the application for execution itself was maintainable in the form in which it was made. It is contended that as the provisions of Order 21, Rule 15, were not complied with, the application is not maintainable. That rule provides that in a case where a decree has been passed jointly in favour of more persons than one, any one or more of them may apply for execution of the whole decree for the benefit of them all and requires the Court to satisfy itself that sufficient cause exists for allowing the decree to be executed on an application made under the rule and to make such order as it deems necessary for protecting the interests of persons who have not joined in the application.

The application, in the present case, did not expressly state that Babu Lal Sah sought to execute the decree for the benefit of both the decree-holders. Accordingly it is contended on the basis of two decisions of this Court that the application was not in proper form.

The first case is that in A.J. Meik, Esqr., Manager of Barabhum Encumbered Estate, Manbhum Vs. The Midnapur Zemindary Company, Ltd., . There, one of two decree-holders applied for execution. The judgment-debtors objected that the application was invalid and this contention was upheld by a Division Bench of this Court; but it is to be observed that in that case the name of the other decree-holder was not mentioned in the application at all so that the latter had no opportunity of appearing to raise any objection which he might have to the execution of the decree by his co-decree-holder and there was nothing on the face of the application to inform the Court that anybody but the applicant was interested in the decree, so that the Court was not in a position to pass necessary orders for the protection of the interest of the decree-holder who had not joined in the application.

The other case is that in S. Mohammad Anas v. Bhupendra Prasad AIR 1938 Pat. 457. There the decree-holder A assigned 7 annas interest in the decree in favour of N, who took the assignment in the name of M.A and N applied to execute the decree when M objected that he was the real assignee. The application for execution was struck off. A question arose whether the application for execution made by A and N was a valid application to save limitation for a subsequent application. It was held that as M, the person whose name appeared on the record as the assignee of the decree, had not joined in the application, there was no application by the assignee within the meaning of Rule 16 of Order 21, and that the application by A and N could not be held to be an application under Rule 15 as it was not stated therein that it was for the benefit of the applicants and of M who was also entitled to the benefit of the decree. It does not appear that the name of M was disclosed in the application for execution as the person beneficially interested in that part of the decree which was the subject-matter of the assignment.

On the facts therefore the present case is distinguishable from those cited because, as I have already stated, the name of Mt. Ramjhari Kuer was not only stated in the application for execution but she actually appeared in the proceedings. The object of Rule 15 is clearly to enable the Court to protect the interest of a decree -holder who has not applied for execution when such an application has been made by a co-decree-holder.

It has been held in a number of cases that where one of several decree-holders applies for execution and others do not object to the execution being granted to him, it is not for the judgment, debtor to say that sufficient steps have not been taken to safeguard the interest of the other decree-holders: Krishnappa Holla v. Savitri (98) 8 M.L.J. 91, Nasir-ud-Din v. Dost Mohammad AIR 1933 Lah. 655, Yaramath Khan v. Amir-ul-Umra Bahadur AIR 1926 Mad. 1198 and Veerammani v. Veerabasava Chikka Royal AIR 1939 Mad. 278. In my view, there is no substance in the first objection raised on behalf of the appellant. It may be added that in the present case the executing Court has taken steps to protect the interest of Mt. Ramjhari Kuer in the decree.

The next question is whether the application for execution was barred by limitation as having been made more than three years from the date of the decree. The period of limitation is that prescribed by Article 6 of Schedule 3, Bihar Tenancy Act, and is three years from the date of the decree. Prima facie, therefore, the application was barred by limitation, but it appears that at the time when the rent suit in which the decree was passed was pending there was also pending a title suit between the same parties. The decree in the rent suit was a decree passed on compromise. The compromise provided that the decree should not be executed until the decision in the title suit as certain pecuniary adjustment would have to be made pending on the decision in that suit. The title suit was not decided until 24th May 1937.

It is accordingly contended on behalf of the respondents that Section 15, Limitation Act, has the effect of extending the period of limitation in the present case, that is to say, it is contended that execution of the decree in the rent suit has been stayed by an order. The petition of compromise containing the stipulation that the rent decree should not be executed until the decision of the title suit is a part of the decree in the rent suit and, in my opinion, must be regarded as an order staying the execution of the decree until 24th April 1937.

But, on behalf of the appellant, it has been strenuously contended that Section 15, Limitation Act, does not apply at all in the present case. Section 184, Tenancy Act, provides that all suits, appeals and applications specified in Schedule 3 shall be instituted and made within the time prescribed in that schedule for them respectively, and imposes upon the Court a duty to dismiss any suit, appeal or application not made within the prescribed time although limitation had not been pleaded Sub-section (1) of Section 185 provides that Sections 7,8 and 9, Limitation Act, shall not apply to the suits and applications mentioned in Section 184, but Sub-section (2) of that section provides that subject to the provisions of this chapter, the provisions of the Limitation Act shall apply to all suits, appeals and applications mentioned in Section 184. The combined effect of these two Sub-sections appears to be quite clearly this, that the provisions of the Limitation Act apply to the periods of limitation mentioned in Schedule 3, Tenancy Act, except that the operation of Section 7,8 and 9, Limitation Act, is barred. Section 29(2), Limitation Act, as amended in 1922, provides that where a special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by Schedule l, the provisions of Section 3 shall apply, as if such period were prescribed therefore in that schedule, and that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as, and to the extent to which they are not expressly excluded by such special or local law.

There is nothing in the Tenancy Act to show that the provisions of Section 15, Limitation Act, have been excluded in computing the period of limitation prescribed by the Tenancy Act. It has accordingly been held in Hasan Imam v. Brahmdeo Singh AIR 1930 Pat. 301 that Section 19 and 20, Limitation Aac, apply to all suits which are governed by Schedule 3, Tenancy Act.

In Sati Prosad Garga and Others Vs. Gobinda Chandra Shee, it was held that the operation of Section 14, Limitation Act, was not excluded in computing the period of limitation prescribed by the Tenancy Act.

In (Moulvi) Wazed Ali Khan Panee and Another Vs. Brojendra Kumar Bandopadhaya and Others, Section 19 and 20 were held to apply in computing the period of limitation prescribed by the Tenancy Act. By analogy these cases are clearly authorities for the view that Section 15, Limitation Act, operates on the periods of limitation prescribed by the Tenancy Act. It was contended however that the reference to the Limitation Act in Article 6 of Schedule 3 negatives the suggestion that any section of the Limitation Act other than Section 18 can apply to a case governed by Article 6. Article 6 provides a period of three years for the execution of a decree between a landlord and tenant to whom the provisions of the Tenancy Act are applicable

except where the judgment-debtor has by fraud or force prevented the execution of the decree in which case the period of limitation shall be governed by the provisions of the Limitation Act.

It would be observed that Article 6 provides a period of three years for the execution of a decree in which no fraud is alleged and further provides that in the case where the judgment-debtor has prevented by fraud or force the execution of the decree the period of limitation shall not be that prescribed by the Tenancy Act but shall be the period prescribed by the Limitation Act. The reference to the Limitation Act in this article has nothing to do with Section 18, Limitation Act, That section applies to a different state of affairs altogether and is confined to cases in which a person has been fraudulently kept out of knowledge of his rights.

For the above reasons I would hold that the application was maintainable in the form in which it was made and it is not barred by limitation, and would accordingly dismiss the appeal with costs.