Kishore Mal and Another vs Jagdish Narain Singh

Mullick, J.—This appeal arises out of an order made by the Subordinate Judge of Gaya in Execution Case No. 207 of 1922. It appears that in 1900 the judgment-debtor Jagdish Narain Singh mortgaged certain Immovable property to one Genda Singh. In 1908 he mortgaged a part of the same property to the appellant Kishori Matt and in 1911 he again mortgaged either the whole or part of the same property to the appellant. Genda Singh sued upon his mortgage and got a decree in 1912, but subsequently to this there was yet another mortgage by Jagdish of the same property in 1913 in favour of one Jadubans who applied a portion of the consideration money in paying off Genda Singh''s mortgage decree and became subrogated to the position of Genda Singh and acquired priority over the mortgages in favour of the appellant Kishori Mai. Kishori Mal and Jadubans thereafter in 1915 instituted mortgage suit Nos. 131 and 132 respectively of that year against the mortgagor. A preliminary decree was made in favour of Kishori Mal on the 23rd December 1915, which was followed by a final decree on the 2nd June 1917 while Jadubans obtained his preliminary decree on the 21st July, 1916. The first execution application made by Kishori was filed on the 20th February, 1919, in the Court of the Subordinate Judge of Gaya. On the 1st of May 1919 the judgment-debtor filed an objection which was allowed on the 12th May of the same year, the Court holding that the execution could not proceed as the relief sought was not in accordance with the decree. Against that order there was an appeal to the High Court at Patna where a Division Bench on the 2nd July, 1920, affirmed the order of the Subordinate Judge and dismissed the appeal.

The second application for execution, out of which the present appeal arises, was filed on the 11th May, 1922. The mortgagor again objected by a petition, dated the 16th June, 1922, and (he application was again dismissed on the 18th July of that year.

In the present appeal it is contended on behalf of the decree-holder that the decision of the Subordinate Judge was erroneous and that his application was not barred by limitation. Now the question of limitation arises in this way. If the application of the 20th February, 1919, was a step-in-aid of execution then the decree-holder by applying on the 11th May, 1922, was out of time, because more than 3 years had elapsed from the last step-in-aid of execution. The decree-holder however invokes the aid of Section 14 of the Limitation Act the application of which will be presently explained. It is admitted that if that Section applies and if the application of the 20th February, 1919, was a step-in-aid of execution then limitation is saved. It is contended on behalf of the respondents that the application of the 20th February, 1919, was not in accordance with law and therefore it was not a step-in-aid of execution, within the meaning of Article 182 of schedule I of the Limitation Act. The reply of the decree-holder is that it was in accordance with law and that the relief claimed in the present application being covered by Section 14 of the Indian Limitation Act, be is entitled to deduct the period during which he was prosecuting the previous execution proceedings, namely, from the 20th February, 1919, till the 2nd of July, 1920.

In regard to the question whether the application of the 20th February, 1919, was in accordance with law, the decisions cited before us exhibit a great conflict of opinion some having gone so far as to hold that if it happens that the relief asked is eventually refused on the ground that that Court cannot or should not give it, then the application is not in accordance with law. On the other hand it has been held that minor errors and even omission to state the relief are not sufficient to make the application contrary to law and that for the purposes of limitation these defects are immaterial. It has also been held that even where the decree does not specifically give the relief which is asked for, the application is not contrary to law and, in my opinion, the matter must be judged upon the facts of each particular case and no general Rule can be laid down. Here we must refer to the terms of Order 21, Rule 11, in order to see whether the application in form and substance complies with the requirements of the law. Now it is admitted that so far as the form of application goes, it fully complies with Rule 11. There is nothing in any of the prayers asked in the application which offends against the terms of that Rule and so much was the Court satisfied that the application was in conformity with the law that he caused it to be registered and a notice to issue under the provisions of Rule 22. Therefore it is dear that at the outset the application was in the opinion of the execution Court fully in accordance with law.

When the Court came to adjudicate upon the merits of the application, the Court found that, although in the earlier part of the heading which requires the applicant to state the mode in which the assistance of the Court is required, particulars were given as to the mode under which the decree under execution was to be enforced, yet the applicant had in the latter part incorporated the contents of the decree obtained by Jadubans on the 21st July, 1916. Now that decree and the present decree were indissolubly connected. The appellant''s decree contained a direction that the money due to Jadubans by reason of the priority acquired by him in respect of Genda Singh''s mortgage should be ascertained in Jaduban''s suit and after it had been so ascertained the appellant''s decree would be executed subject to that prior charge. Next the same learned Judge in Jaduban''s suit proceeded to give what was practically a joint decree; he gave detailed directions as to the order in which the two properties, namely, Abhaipur and Reola, were to be sold, and in what proportions Kishori Mal and Jadubans were to share in the proceeds; and therefore it seems to me that not only was there no prejudice to the respondents nor any attempt to deceive the Court which are the two most material things in considering the validity of an execution application, but here it was essential for the decree-holders to state in their ''application the directions given in Jaduban''s decree of the 21sb July, 1916. It may be said that the execution Court which dismissed the execution application of the 20th February, 1919, was not bound to regard these directions and it was competent to him to give a general order for the sale of the mortgaged properties subject to the prior charge of Jadubans; but though the application was held by tho Court to be defective, the defects in my opinion, were not such as to preclude it from being classed as one in accordance with law. It was at least in accordance with law as to a part and as to the other part, if we were to go so far as to hold that the inclusion of a relief not specifically granted by the decree under execution is fatal, even in that case, it seems to me that the application did not offend against the provisions of Order 21, Rule 11, for the purposes of the Limitation Act. That being so, I cannot see how it can be objected that the application in question was not a step-in-aid of execution sufficient to attract the provisions of Article 182 of the Limitation Act. It is not necessary in the view I take to cite authorities, but the general propositions on which I rely have been excepted in Gopal Chunder Manna v. Gosain Das Kalay (1898) 25 Cal. 594 and in Bando Krishna Kunbarghi v. Narashimha Konber Deshpande (1913) 37 Bom. 42 and Ramayyan v. Kadi Bacha Sahib (1908) 31 Mad. 68. Reference has also been made to Amrit Lal v. Murlidhar 1922 Pat. 188. In that case a Division Bench of this Court held that where the decree-holder had asked the execution Court to transfer the decree to a Court, which had no jurisdiction to hear the execution case, the application was not a step-in-aid of execution being not in accordance with law; but here the point is whether any incorrectness or superfluity as to the reliefs asked for in the application vitiates the application to such an extent as to debar the decree-bolder from claiming it to be a step-in-aid of execution. In the opinion the answer to this should be clearly in the negative. Now, if that is found the further question arises whether this is a case to which Section 14 of the Indian Limitation Act applies. The relevant portion of that section runs as follows:

In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded on the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it.

The matter before us turns upon the words "or other cause of a like nature." The question is whether in the present case the dismissal of the previous execution application on the ground that the relief asked for was not in conformity with the decree was cause of a nature similar to defect of jurisdiction. Now it had been held before 1908 when the Limitation Act was last amended that the dismissal of an application on the ground of misjoinder of parties or of causes of action in a suit was cause similar to defect of jurisdiction and for this reason explanation III was added to Section 14 as amended. That amendment runs as follows: "For the purposes of this Section misjoinder of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction." It is clear that in the present case the basis of the decision of the Subordinate Judge and of the High Court in appeal was that it was not right for the execution Court to entertain an application in which the legitimate prayer for the execution of the decree was joined with a prayer which the Court thought it was not competent to grant, and which related to relief given by another decree. That defect appears to me to be a defect in the nature of a misjoinder of causes of action and in my opinion the defect is covered by Section 14.

Therefore the decree-holder is, in my opinion entitled to the benefit of the time which was taken in prosecuting the previous execution proceeding from the 20th February, 1919, to the dismissal of his appeal in the High Court on the 2nd July, 1920.

In this view of the case it is not necessary to examine the other contention of the decree-holders, namely, that be would be entitled to count time from the 12th May, 1919, on which date he filed a certain application which has not been printed but the substance of which is recorded by the execution Court as follows: "Decree-holder files a petition stating that the proceeding in this case be kept along with execution case No. 49 of 1919." If that application was an application for the execution of the decree simultaneously with the execution of Jaduban''s decree, then, in my opinion, it was a step-in-aid of execution from which time could run. If, on the other hand it was merely an application to keep the execution proceedings pending till the disposal of the other case, then the case would be covered by Abdul Hakim v. Sheikh Aseentoollah 25 W.R. 94 and the decree-holder would not be entitled to count it as a step-in-aid of execution; but in the present case it is not necessary to go any further into this point because in the view that I take the application of the 8th February was a proper application and the decree-holder''s application of the 11th May, 1922, was within time.

The appeal will therefore be decreed with costs.

Bucknill, J.

I agree.