Laxmi Lal and another vs Onkarlal and others

Modi, J.—This is an execution first appeal by the judgment-debtors Laxmilal and another against an order of the Civil Judge, Udaipur, dated 20-12-1951.

The facts are briefly these One Omkarlal, proprietor of the firm of Srilal Kistoorchand obtained a decree against the entire ''Panchas'' of village Nerach for Rs. 6006-12-0 only from Adalat Sadar Dewani on 30-1-1920. The decree-holder then appealed to the Mehndraj Sabha on the point of interest and was successful in having the amount of the decree enhanced to Rs. 7506-13-0. It may be pointed out that although the decree obtained by Onkarlal appears to have been passed against certain individuals also, namely, Tolaram, and Nenuram (among others) whose sons respectively are the present appellants Laxmilal and Chaturbhuj, the decree was clearly passed in this case against certain persons named therein as ''Mukhias'' or representatives of village Nerach, and not in their personal capacity.

No decree was prepared in this case and naturally we do not have it before us; but what we have stated above clearly appears from a certified copy of a judgment of the Mehndraj Sabha dated Asad Vadi 13, Smt. 1978, which is on the record. The decree-holder took out execution of the decree from time to time and in this connection we need refer only to his applications made in 1944 and 1951. As regards the application filed in 1944, it was dismissed in 1950. Thereupon another application was filed on 18-1-1951, out of which the present appeal arises. On 1-12-1931, the present appellants raised certain objections to the execution of the decree.

These objections briefly were four in number: (1) that as no decree had been prepared in the present case when it was finally decided, execution under the Civil P.C. could only be of a decree and, therefore, could not proceed in the absence of such a decree; (2) the execution application dated 18-1-1951, was barred by time, as it was made beyond 12 years of the appellate decree of the Mehndraj Sabha dated 23-6-1922, by virtue of the provisions of S. 48, Civil P.C.; (3) the decree-holder had actually recovered more than the decretal amount in satisfaction of the decree; and (4) the decree-holder had sought to attach the personal property of the judgment-debtors and that that could not be done as the decree was passed against ''Mukhias'' of the village not in their personal capacity but as representatives of the entire village. The executing Court repelled all these objections and held that the decree was executable. Hence the present appeal.

The points which were raised on behalf of the appellants in the Court below have been repeated before us. As regards the first contention viz., that no execution could go on in the absence of a decree as such in favour of the plaintiffs, we may state at once that this contention has no force. There was no Civil P.C in the former State of Mewar up to the year 1940 A.D., and we are, therefore, not surprised if no decrees were prepared in accordance with the judgments announced by Courts of law in favour of one party or another. But that cannot lead to the contusion that the judgments announced were mere paper judgments and the fruits of such judgments would or could not be available for or against the parties concerned. In the circumstances we are of opinion that the judgment itself should be taken to be a decree for the purposes of execution.

The next point raised before us was that the decree-holder''s application filed in 1951 was barred by time, and that the finding of the Court below holding it to be within time was erroneous. The contention in the lower Court was whether the execution application in question was barred by the 12 years rule laid down in S. 48, Civil P.C., it being admitted between the parties that the final decree in the case was passed as early as 1922. The learned Civil Judge took note of the fact that the Civil P.C., in the former State of Mewar (hereinafter referred to as the Mewar Code) was introduced for the first time on 9-9-1940, and that when it was so introduced, S. 48 was put in an amended form, and the amendment with which we are concerned in the present case was put as Cl. (1)(c) of that section and was in the following terms: "The date of the passing of this Code for the decrees passed before this Code came into force."

The effect of this amendment was that the period of twelve years laid down in sub-s. (1)(a) of S. 48, in the case of decrees passed before the commencement of the Mewar Code was to be counted from the date of the passing of that Code or, in other words, from 9-9-1940. The learned Judge concluded from this that the 12 years'' period of execution in the present case extended right up to 9-9-1952 and, therefore, the application of 1951 was within time.

The conclusion thus arrived at would have been correct but for certain events which had happened during the intervening period and which obviously were not brought to the notice of the lower court. The former State of Mewar was integrated with the group of States which may conveniently be described as the former State of Rajasthan some time in 1948. An Ordinance was then promulgated by His Highness the Rajpramukh on 6-10-1948, which was known as the United State of Rajasthan CPC Ordinance, 1948 (Ordinance No. LXI of 1948) hereinafter referred to as the former Rajasthan Ordinance. The object clearly was to enact a uniform Civil P.C., for the territories comprising the then State of Raiasthan, as stated in the preamble of the Ordinance.

Section 4 of the Ordinance was in the following terms:

(1) Subject to the other provisions of this section, all laws in force in any of the Covenanting States of the United State of Rajasthan similar to the said Code are hereby repealed.

Sub-section (2) of S. 4 is not relevant for our present purposes. In this Ordinance, S. 48 was wholly adopted as it existed in the Indian Civil P.C., and no special provision was made therein with respect to decrees passed before the Ordinance came into force. We have no doubt, therefore, that on a proper interpretation of the former Rajasthan Ordinance, Cl. (1)(c) of S. 48 of the Mewar Code must be held to have been repealed by virtue of the provisions of S. 4(1) of the former Rajasthan Ordinance. We have given the matter our very careful consideration and are constrained to come to the conclusion that S. 4 of the former Rajasthan Ordinance wiped out all laws in force in any of the Covenanting States with respect to which similar provisions existed in the new Code.

This was of course made subject to other provisions of that section but there is nothing in the remaining provisions of that section which could save Cl. (1)(c) of S. 48 of the Mewar Code, as it cannot possibly fall within the purview of the other provisions made in that section. In this connection it was strenuously argued before us on behalf of the decree-holder respondent that a right which had once vested in the decree-holder by virtue of the provisions of the Code of the former State of Mewar, could not be affected in any way by the subsequent legislation. This argument is, however, devoid of all force inasmuch as nobody can have a vested right in matters of mere procedure and execution of decrees is a procedural matter rather than one of substantive right.

Reference may be made in support of this view to - ''Narendra Lal Khan v. Upendra Nath'', 21 Ind Cas 113 (Cal) (A); - ''Krishna Dayal v. Sakina Bibi'', AIR 1917 Pat 485 (B) and - Mt. Begam Sultan Vs. Sarvi Begam Thus, it was held that where a mortgage decree was passed under the old Civil P.C. but an application was presented for execution of the decree more than 12 years after the date of the decree, and after the present Code came into force, the application was barred by time although S. 230 of the old Code did not apply to mortgage decrees, (See - Gopaldas Ganpatdas Vs. Tribhovan Jethiram,

We may further take note of the fact that the Rajasthan CPC (Adaptation) Ordinance, 1950 (No. V of 1950) (hereinafter referred to as the Rajasthan Ordinance) came into force on 24-1-1950, and was followed by the CPC (Rajasthan Amendment) Act, 1952 (Act No. XX of 1952). By the amendment Act, it was provided that after S. 48, Civil P.C., 1908 (Act No. V of 1908), in the application thereof to the State of Rajasthan, the following new section shall be, and be deemed always to have been inserted. Section 43-A runs as follows:

For the purposes of the application of S. 43 to the State of Rajasthan;-

(i) a decree, made before the twenty-fifth day of January, 1950, in those parts of Rajasthan where a corresponding provision did not then exist, shall, unless it shall have become time-barred or otherwise infructuous before the said day in accordance with any law then prevailing in those parts, be deemed to have been made on the said day, and

(ii) Where a decree might have been made before the twenty-fifth day of January. 1950, in those parts of Rajasthan where a corresponding provision then existed, with a period longer than twelve years provided therein such longer period or the period of twelve years from the said day whichever expires first shall be the period after which, according to S. 48, no order for execution shall be made.

It is clear from the language of this section that it cannot help the respondent-decree-holder. A corresponding provision existed in the former Rajasthan Ordinance according to which the decree had already been barred by time, as it contained no saving clause in respect of decrees passed prior to the enactment of the former Rajasthan Ordinance. Section 48-A cannot have the effect of keeping alive decrees which had already become inexecutable under similar laws in any of the Covenanting States before the Rajasthan Ordinance came into force on 24-1-1950. In this view of the matter, we have no hesitation in holding that the finding of the Court below on this aspect of the case is wrong and cannot be sustained.

Be that as it may, during our perusal of the record, we came across an agreement which appears to have been arrived at between the parties during the course of execution proceedings which puts in our opinion, an altogether different complexion on the point of limitation in this case. In an application dated 26-9-1924, it was stated before the executing Court by the judgment-debtors that in village Nerach, a sum of Rs. 901/- was being recovered as Kharda from the villagers for common village expenses out of which a sum of Rs. 350/- was earmarked for expenditure for certain purposes, into which we need not enter, and it was suggested that the remaining amount be paid to the decree-holder year after year until his decree was executed, and certain expenses for the realization of the ''Kharda'' be defrayed from the monies so realized from the villagers.

This arrangement appears to have been acceptable to the decree-holder also and so by an order dated 27-9-1924, the Court accepted this arrangement and ordered accordingly. The decree-holder was directed to keep proper accounts and to produce them in Court if and when necessary. Nothing is precisely known as to how things happened thereafter. The judgment-debtors, however, in their objection dated 1-12-1951 contended that the ''Kharda'' had been allotted to the decree-holder in execution of his decree, and that as the decree-holder commenced to appropriate it right from Smt. 1880 (this is obviously wrong for Smt. 1981), he must have recovered not only his decretal amount but something more during the past 28 years.

In his reply to the above objection, the decree-holder stated that he continued to recover the ''Kharda'' up to Smt. 1998 (which corresponds to 1939 A.D.) although the amount actually recovered used to vary from year to year and thereafter the villagers entirely refused to raise any ''Kharda'', and this position became perfectly clear while the execution application made in the year 1944 was in progress and was eventually dismissed, without anything being done on 10-5-1950. In these circumstances, it Appears to us that the application of. S. 48(1)(b) is attracted, which permits the period of 12 years provided in sub-s. (1) for execution to be counted from the date of default in cases where a decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods and a default in making the payment or delivery has occurred.

It appears that there was a conflict of opinion on the question whether an order of an executing Court can operate as a subsequent order under that section. According to certain High Courts, a subsequent order can only be an order passed by the Court which passed the decree. Other High Courts have, however, taken the view that the order may be of any competent Court including a Court of execution. The decision of their Lordships of the Privy Council in - AIR 1939 80 (Privy Council) supports the latter view.

In deciding that case, their Lordships observed that the principle in vogue was that the original decree could not be altered or varied by the parties even with the sanction of the Court. Their Lordships, however, held that they were not in agreement with that view and that there could be no restriction of the parties'' liberty of contract with reference to their rights and obligations under the decree and that if they did contract upon terms which had reference to and affected the execution, discharge or satisfaction of the decree, such a matter clearly fell under S. 47, Civil P.C., and there was no reason why a Compromise or an adjustment, if properly made, could not be recognized. In this view of the matter, the expression "subsequent order" may cover any lawful order passed by an executing Court, and it would then follow that where such subsequent order directed any payment of money or the delivery of any property to be made at recurring periods, the period of twelve years beyond which a fresh application for execution could not be filed must be computed from the date of default in making the payment or the delivery.

If the default occurred as the decree-holder has stated in his application in reply to the judgment-debtors'' objection some time in Smt. 1996 or 1939 A.D., it seems to us that the present application would not be barred by time. The appellants however, contended that the case had not been argued in the Court below from this angle and, therefore, they were not in a position to make a definite submission as to when the default occurred in the present case, and consequently they prayed for a remand for a proper finding on this point by the executing Court after going into the necessary facts. We might have acceded to this request in the event of our inability to dispose of the present appeal on another ground raised on behalf of the appellants, and as we consider that it is possible for us to decide this appeal on that ground, we do not consider it desirable or necessary to pursue this point further.

It has been next contended before us that the decree-holder in his last execution application filed in 1951 has sought satisfaction of his decree by attachment and sale of the personal property of the appellants and the other villagers who have been arrayed as respondents in this appeal. From what we have stated in the earlier part of our judgment, we are satisfied that the decree in this case was in respect of certain liabilities which had been incurred by the inhabitants of the entire village. The suit was filed by the plaintiff-respondent against all the Punches of village Nerach as appears from the appellate judgment of the Mehndraj Sabha dated 23-6-1922, and that in our opinion could only happen if the liability was of the entire inhabitants of that village. The manner of the execution which had been agreed to in Smt. 1981 also strengthens this view.

The decree was to be satisfied out of the proceeds of the village fund known as Kharda. The circumstance that some of the villagers were impleaded as defendants and that a judgment was passed against them would not make any difference to the view to which we have come, as in the old State of Mewar, they had no Civil P.C., and it might have, therefore, been that as the suit was sought to be brought against all the villagers, the names of some of the Mukhias were mentioned in the array of defendants. The mention of such names, therefore, would not change the character of the suit and the judgment or decree which followed.

It is difficult to test these old cases by the standards which we may be called upon to apply in modern times. We must, therefore, look at the substance of the matter in order to be able to do real justice between the parties, and when we do so, we find ourselves utterly unable to accede to the respondent-decree-holder''s contention that the decree passed in this case was passed personally against the appellants, and those in like situation with them. We hold, therefore, that the decree was in substance and effect passed against the appellants in a representative capacity, that is, as representatives of Nerach village, and that it can properly be executed only against the village property such as a village fund in the hands of the judgment-debtors, and not against their personal property.

We are of opinion that the principle of S. 52, Civil P.C. may well be applied to a case like the present. The judgment-debtors in this case were the entire body of the villagers, and it is only the village property which could be brought under execution. At the most we may say that it was for the decree-holder to show if the present judgment-debtors had come into possession of any common village property, and if they have come into such possession, then it may be for the judgment-debtors to show that they duly applied it to the common village purposes, and it is only on their failure to do so that the decree could be executed against them personally. As nothing of the kind has been shown in the present case, we are unable to permit the execution of this decree (against the villagers as a whole) by attachment and sale of the personal property of the appellants and the other judgment-debtors.

In this view of the matter, we do not consider it necessary to go into the remaining contentions raised on behalf of the appellants.

The result is that we allow this appeal, set aside the order of the Court below, and hold that the personal property of the appellants will not be proceeded against in execution of the decree in question. The same order will apply to other judgment-debtors who have been impleaded as respondents Nos. 2 to 9 in this appeal. In view of the peculiar circumstances of this case, we think it would be best to leave the parties to bear their own costs throughout.