Kedar Nath Sahu and Others vs Parsidh Singh and Others

Chatterji, J.—In this appeal, which is by the decree-holders, the question for determination is whether the execution of an instalment rent decree, filed more than three years after the date of the decree, is barred under Article 6 of Schedule 3, Bihar Tenancy Act. The decree under execution was passed on compromise for Rs. 250 on 10th December 1936, the amount being payable in three instalments, i.e., Rs. 100 on 30th December 1937, Rs. 50 on 15th March 1938 and Rs. 100 on 30th December 1938. The decree provided that in case of default of payment of the first two instalments, the entire decree would be executable. The judgment-debtors made no payment at all towards the decree. The decree-holders applied for execution of the decree on 20th December 1941. The judgment-debtors took objection to the execution on the ground that it was barred by limitation under Article 6 of Schedule 3, Bihar" Tenancy Act. The learned Munsif upheld the judgment-debtor''s objection and dismissed the execution ease. On appeal, his decision was affirmed by the learned Subordinate Judge. Hence this appeal by the decree-holders. The point taken by Mr. Raj kishore Prasad on behalf of the appellants is that an instalment rent decree is not covered by the provisions of Article 6 of Schedule 3, Bihar Tenancy Act, and therefore it will be governed by Article 182, Clause (7) of Schedule 1, Limitation Act. Now, Section 184 (1), Bihar Tenancy Act, provides:

The suits, appeals and applications specified in Schedule 3 annexed to this Act shall be instituted and made within the time prescribed in that schedule for them respectively; and every such suit or appeal instituted, and application made, after the period of limitation so prescribed, shall be dismissed, although limitation has not been pleaded.

Article 6 of Schedule 3, Bihar Tenancy Act, is as follows:

Description of application.

Period of limitation.

Time from which

period begins to

run.

For the execution of a decree or order made in a suit between landlord and tenant to whom the provisions of this Act are applicable and not being a decree for a sum of money exceeding Rs. 500, exclusive of any interest which may have accrued after decree upon the sum decreed, but inclusive of the costs of executing such decree; 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 provision of the Indian Limitation Act, 1877.

Three

years

(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.

Section 29 (2), Limitation Act, says:

Where any special or local law prescribes for any suit, appeal or application a period'' of limitation different from the period prescribed therefore by Schedule 1, the provisions of Section 3 shall apply, aB if such period were prescribed therefore in that schedule.

It is clear from the aforesaid sections of the Bihar Tenancy Act and the Limitation Act that an application for the execution of a decree for rent, not exceeding Rs. 500 made in a suit between landlord and tenant to whom the provisions of the Bihar Tenancy Act are applicable must be governed by Article 6 of Schedule 3, Bihar Tenancy Act. It is true that if we look to Col. 3 of Article 6, it will appear that an instalment decree is not provided for in this article. But to determine whether an application for execution of a rent decree is governed by Article 6, we shall have to see whether it is an application "specified in Schedule 3": see Section 184 (1). To find out whether the application is an application specified in Schedule 3, we must have to look to col. 1 of Article 6, which gives the description of application. If the application is for the execution of a decree for rent, not exceeding Rs. 500 made in a suit between landlord and tenant to whom the provisions of the Bihar Tenancy Act are applicable, it is clearly an application "specified in Schedule 3." We cannot read into the article any words so as to imply that the article does not refer to an instalment decree. It may be that the Legislature did not make any provision for an instalment decree in Article G, because the Act itself makes no provision for passing such decree. Having regard to Section 148 (g), Bihar Tenancy Act, which, as it stood before the amendment in 1938, provided:

the Court may, when passing the decree, order on the oral application, of the decree-holder the execution thereof, unless it is a decree for ejectment, for arrears,

it might be said that the Legislature in enacting Article 6 of Schedule 3 to the Act perhaps contemplated a decree capable of immediate execution. But we are to consider the article as it stands, and it is not within our province to remove the lacuna that exists in the article by importing into it words which are not there. If the article had referred to a decree made in accordance with the provisions of the Act, it might perhaps be held that an instalment decree would not be covered by the article. It is not disputed that the decree in the present case was made in a suit between landlord and tenant to whom the provisions of the Bihar Tenancy Act are applicable. Clearly, therefore, the application for execution comes under Article 6 of Schedule 3, Bihar Tenancy Act. The point is covered by authorities. In Achutanand Singh Vs. Gayanchand Mahton and Others, it was held by Ross and Wort JJ. that a decree for rent obtained by a landlord against his tenant does not cease to attract the provisions of Schedule 3, Ben. Ten. Act, by reason of the fact that by consent of the parties the amount of the decree is made payable in instalments. It was pointed out that the test of the applicability of Schedule 3, Ben. Ten. Act, regarding limitation is whether the suit was between landlord and tenant to whom the provisions of the Act apply. In that case the application for execution of an instalment rent decree, filed more than three years after the passing of the decree but within three years of the date of the instalments fixed, was held to be barred by limitation.

In Khetra Mohan Chatterjee v. Mohim Chandra Das 18 IC 595, Carnduff J. sitting with Beachcroft J., held that Article 6 of Schedule 3, Ben. Ten. Act, applies to an application for execution of an instalment rent decree and limitation for such application runs from the date of the decree. Undoubtedly, Article 6 of Schedule 3, Bihar Tenancy Act, would work hardship in the case of an instalment rent decree, if limitation were to run from the date of the decree. But this hardship may be got over by applying Section 15, Limitation Act. Section 185, Bihar Tenancy Act, runs as follows:

(1) Sections 7, 8 and 9, Limitation Act, 1877, shall not apply to the suits and applications mentioned in the last foregoing section.

(2) Subject to the provisions of this chapter, the provisions of the Limitation Act, 1877, shall apply to all suits, appeals and application mentioned in the last foregoing section.

It is clear from this section that the provisions of Section 15, Limitation Act, apply to an application for execution covered by Article 6 of Schedule 3, Bihar Tenancy Act. Section 15 (1), Limitation Act, is in these words:

In computing the period, of limitation prescribed 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.

The provisions of this section may well be applied to an application for execution of an instalment rent decree, because the effect of the decree is to prevent execution until the instalments fall due, or until the entire decree becomes executable by reason of a stipulation in the decree that in case of default in payment of any instalment or instalments, the entire decree could be executed. I do not, however, consider it necessary at the present moment to express any opinion as to whether Section 15, Limitation Act, will apply where the instalment rent decree merely provides for instalment without any stipulation that in case of default in payment of any of the instalments, the entire decree would be executable. In Jagdeo Singh and Another Vs. Babu Lal Sah, Agarwala J. sitting alone, applied Section 15, Limitation Act, to an application for execution of a rent decree passed on compromise which provided that the decree should" not be executed until the decision in a title. suit then pending between the parties. The rent decree was passed on 14th June 1935, but the title suit was not decided until 24th April 1937. The application for execution of the rent decree was made on 2lst June 1938. This application was held to be within time. The principle of the above decision may equally apply to an instalment rent decree. This view has been taken by the learned Subordinate Judge in this case, and, I think, he is correct.

In the present case the decree provided that in default of payment of the first two instalments, the decree, holders would be entitled to itake out execution of the entire decree. The second instalment was payable on 15th March 1938; therefore, when there was default in payment of the first two instalments, the decree-holders were at liberty to execute the entire decree on 16th March 1938. There was no longer any bar to the execution. But the application for execution was not filed until 20th December 1941, that is to say, more than three years after the bar was removed. Therefore, even excluding the period from the date of the decree to 15th March 1938, the application is still beyond time. The decision of the Court below is right, and the appeal must be dismissed, but, in the circumstances, without costs.

Shearer, J.

I agree, except that in the hypothetical case postulated by my learned brother I am somewhat doubtful as to whether Section 15 (1), Limitation Act, will really apply. On this point I should prefer to have had the advantage of hearing further argument before expressing an opinion one way or the other.