Mahidhar Roy vs Raja Kalyani Prasad Singh

Manohar Lall, J.—This appeal by a judgment-debtor arises out of a proceeding in execution of a decree. The judgment-debtor objected that the. decree sought to be executed was barred by limitation, but the learned Subordinate Judge has taken the contrary view. This is the principal question for determination in this appeal. A few dates are necessary to appreciate the point raised.. On 25th March 1930 the decree-holder opposite party obtained in the Purulia Court a decree for about Rs. 28,000 against Kalipada Roy and Purnendu Narain Singh. The appellant is the son of Kalipada Roy who is now dead. In the years 1930, 1932 and 1933 infructuous attempts were made to execute this decree. On 9th July 1935, another execution case was started but it was dismissed on part satisfaction in May 1936. On 18th of June of the same year the decree-holder made an application to the Court at Purulia that the decree should be transferred to the Court at Asansol with a certificate for non-satisfaction. On that very date the Court passed this order:

This is an application for transfer of the decree to the Court of the Subordinate Judge of Asansole on the ground thr\\t the judgment-debtor has got no properties moveable or immovable within the local limits of the jurisdiction of this Court. Prepare certificate of non-satisfaction and send it to the Subordinate Judge of Asansole through the District Judge of Burdwan as prayed for and put up on 6th July 1936 for further orders.

In pursuance of this order the office prepared a certificate for non-satisfaction on 25th June. 1936 (Ex. 2). On the same date the Subordinate Judge of Purulia signed the order, Ex. 1, in which after reciting that the decree-holder has applied for a certificate to be sent to the Subordinate Judge at Asansol it stated:

It is ordered that a copy of this order be sent to the Subordinate Judge, Asansole, through District Judge Burdwan, with a copy of the decree and of any order which may have been made for execution of the same and a certificate of non-satisfaction.

This order and a certificate of non-satisfaction were received by the Court at Asansole on 4th July 1936 (see Ex. 7, Col. l). The decree-holder did not make any application for execution before the Court at Asansol and therefore that Court returned the certificate to the Sub-ordinate Judge at Purulia on 4th March 1937 (see Ex. 7, last column). On 6th July 1939, the decree-holder made another application for execution of the decree to the Court at Purulia. In that application the execution was sought against the heirs of the deceased judgment-debtor, Kalipada Roy, by their arrest. The moveable properties which were sought to be attached were described in that application as being situated without the jurisdiction of the Purulia Court. On receiving this application the Subordinate Judge passed this order:

Register. It appears that the decree under execution has been transferred to Sub-Judge''s Court, Asansol for execution on 6-7-36 and no result thereof has yet been received. The execution is against the heirs of the deceased judgment-debtor but there is also a prayer for arrest. Further the moveables sought to be attached are not within the jurisdiction of this Court.

The matter was directed to be put up on 18th July 1939 in presence of the pleader of the decree-holder. It may be noticed that the office was under a wrong impression that the decree under execution had been transferred to the Court at, Asansol on 6th July 1936 although as a matter of fact the transfer was made on 25th June 1936. It also appears that although the Court at Asansol returned the certificate of non-satisfaction on 4th March 1937 the office at Purulia omitted to notice this fact. On 18th July 1939, the decree-holders filed a petition in which they stated that they desired to amend the petition for execution by inserting a list of immovable properties Of the judgment-debtors which were within the jurisdiction of this Court. They prayed for 21 days'' time to get. the petition amended. In the meantime, at their request notice under Order 22, Rule 3, Civil P. C, was directed to be issued to the legal representatives of the deceased judgment-debtor. The notice was served by fixing it to the house of the judgment-debtors on their refusal to accept it. On the same date the decree-holders filed a verified petition for attachment and sale of the immovable properties of the judgment-debtors which were then described in the application and prayed that this may be treated as a part of the execution petition. The Court allowed the prayer. As the natural guardian for the minor judgment-debtor did not appear, the Court directed that Babu S. N. Ojha, a pleader, may be appointed guardian ad litem of the minor and the notice was directed to be issued to all the judgment-debtors under Order 21, Rule 22. These notices were served on the guardian ad litem and also on the authorised agent of judgment-debtors 1 and 2 but they refured to accept the notices. On 9th December 1939, the judgment-debtor objected u/s 47, Civil P. C, that the execution was barred by limitation and that the decree-holder had no right to execute it without obtaining a succession certificate as-the original decree-holder had died since the passing of the decree. The learned Subordinate Judge held that the execution was barred by limitation on 16th May 1940. He took the view that the original application for execution that was filed on 6th July 1939 cannot be deemed to be an application in accordance with law because it asked for a relief which the executing Court was not competent to grant, and further that at the time of the amendment which was allowed by the Court, later on, the decree had become barred by limitation. In that view he held that it was-not necessary to give the decree-holder an opportunity to apply for a succession certificate. Against this decision there was an appeal to this Court which affirmed the order dismissing the execution but only on the ground that the decree-holder had no right to execute the decree without obtaining a succession certificate. The learned Judges refrained from, expressing any opinion as to whether the execution was or was not barred by limitation by their order dated the 18th September 1941.

On 27th October 1941 after obtaining a succession certificate the decree-holders filed an application for execution of the decree which is the subject of these proceedings. The judgment-debtors objected that the decree-holder is precluded from executing the decree on the principle of res judicata because the order in the previous execution case that the execution was barred by limitation was conclusive between the parties. This objection was obviously, ill-founded because the appellate Court, as already observed, did not dismiss the application on the ground. This objection has not been accordingly pressed before us. The serious objection taken was that the application was barred by limitation because the previous execution case started on 6th July 1939 was beyond, the prescribed period of limitation having been started more than three years from 25th June 1936, that being the date of the final order passed on the application to take step-in-aid of execution within the meaning of Article 182, Limitation Act, and further that this application for execution was not in accordance with law firstly because the decree-holders had not then obtained a succession certificate, and secondly,. because the Court was not competent to grant the relief which the decree-holder sought for in that application and it was contended that the application can be treated to have become a good application only on 4th August 1939-but that was more than three years from 6th July 1936 also.

The learned Subordinate Judge overruled these contentions. He held: (1) that the application for execution of the decree which, was dismissed because of the non-production of the succession certificate, as was the view taken by the High Court, was a step in aid of execution; (2) that the application of 6th July 1939, having been entertained by the executing Court who had jurisdiction to entertain it saved limitation and that it was immaterial that it contained a prayer which the Court was not competent to grant because the Court could have granted a partial relief by transferring the decree for execution to the Court at Asansol where the moveables mentioned in the petition of execution were to be found; (3) that the final order in the application for transfer of the decree in 1936 to the Court at Asansol was passed on 6th July 1936, and not on 25th June or 4th July 1936. Accordingly he held that all the objections of the judgment-debtors were "quite frivolous." Hence the appeal to this Court. Mr. P. R. Das, who appeared for the appellant, argued that the date of the final order passed in the application to take the step in aid of execution cannot be taken to be a date beyond 25th June 1939, and therefore the application filed on 6th July 1939, was barred by limitation. He also argued that the application of 6th July 1939, was not an application in accordance with law and that the application became in accordance with law only on the date when it was amended on 4th August 1939, and this was more than three years from 6th July 1936. These two serious contentions must be examined separately.

In order to determine the date of the final order the prayer in the application of 18th June 1936, must bo kept in view. That application was not an application for execution of the decree but was an application asking the Court to transfer the decree for execution to the Court at Asansol with a prayer for non-satisfaction of the decree. It was held by the Calcutta High Court in the Full Bench case in Chutterput Singh v. Sumari Mal A. I. R. 1916 Cal. 488 that an application for transmission of a decree from the High Court to a District Court was not by itself a revival of the decree within the meaning of the Act inasmuch as it was a mere ministerial act of an officer of the Court and not the judicial act of a Judge. The correctness of this decision was approved by their Lordships of the Judicial Committee in AIR 1927 73 (Privy Council) . The order of transmission was sought for and the order of transmission when actually made is purely a ministerial act. In this case the transmission of the decree with a certificate of non-satisfaction was ordered to be made on 18th June 1936, and the certificate of non-satisfaction was prepared on 25th June 1936, and a copy of the. order transferring-the decree and the certificate of non-satisfaction were all ordered to be sent out under the hand of the Judge on 25th June 1986, and as stated already the papers were received by the Asansol Court on 4th July 1936. In my view, therefore, it follows clearly that the final order on the application to take step in aid of execution in this case was passed on 25th June 1936, and not on 6th July 1936.

The argument of the learned Advocate-General, who appeared for the respondent is based upon the view that the Court when moved on 18th June 1936, was actually deciding judicially the prayer of the decree-holder and sought to seek support from the decision of the Judicial Committee in AIR 1933 68 (Privy Council) that when an order is judicially made by an appellate Court which has the effect of finally disposing of an appeal, such an order gives a new starting point for the period of limitation prescribed by Article 182 (2) of the Act of 1908. It was, therefore, argued that the order of 18th June 1936, was not a final order effectively disposing of the application for transfer of the decree because the Court observed in that order that the matter should be put up before him for further orders on 6th July 1936. On this date the order of the Court was, after reciting'' that a certificate for non-satisfaction has been granted and sent to the Subordinate Judge of Asansol through the District Judge of Burdwan, "let the case be disposed of." It will be noticed that here also the Court says that a certificate of non-satisfaction has been granted and it has been sent to the Subordinate Judge at Asansol. The words "let the case be disposed of" cannot, in my opinion, be treated as a final order. The case did not require any disposal judicially; it was a purely ministerial act and the ministerial act had been performed several days before 6th July 1936. The second contention raised on behalf of the appellant is also sound. In order to get a new starting point of limitation the application for execution must be in accordance with law. The identical question was decided by this Court in Firm Johar Mal-Paran Ram Vs. Bindeswari Prasad Singh and Others, Fazl Ali J. (as he then was) accepted the view of the Allahabad High Court

the expression ''applying in accordance with law'' means applying to the Court to do something in execution which by law that Court is competent to do, and that it does not mean applying to the Court to do something which either to the decree-holder''s direct knowledge in fact or from his presumed knowledge of the law he must have known that the Court was iricompetent to do. This is the view which was accepted by a Division Bench of this Court also in Amrit Lal v. Murlidhar A. I. R. 1922 Pat. 188 and as at present advised I am not prepared to dissent from it. The words ''in accordance with law'' which occur in Article 182 (5) are general and cannot be construed to mean only ''in accordance with the Code of Civil Procedure.

Dhavle J. came to the same conclusion. In that case the decree sought to be executed was only against this father and it provided that the loan incurred by the father was not binding on the sons. Nevertheless the decree-holder applied for execution of the decree by arrest of the sons and it was held that such an application was not in accordance with law. The learned Advocate-General strongly relied on the case in Sreenath Chakravarti and Others Vs. Priyanath Bandopadhya and Others, where it was observed that an application in which the decree-holder applies for execution to a Court for a relief which it is not competent to grant, e.g., by executing a decree against the immovable properties situated outside its territorial jurisdiction, such an application can be called in aid by a decree-holder to save limitation, hecause

the question is not whether the Court has jurisdiction to execute tho decree but whether it has jurisdiction to entertain the application, in other words whether the application for execution made in that Court in such circumstances will count as an application for execution for the purposes of limitation.

This Court however has not accepted the correctness of this view. In Sital Prasad v. Babu Lal AIR 1932 Pat. 309 it was held that where a decree-holder asks the executing Court to do a thing which the Court is not empowered to do, e.g., transfer of the decree for execution to the Court of a Munsif who had no jurisdiction to execute the decree, such an application cannot give a starting point for limitation. The learned Judges pointed to tho case of the Privy Council in Maharaja of Bobbili v. Sree Raja Narasaraju A. I. R. 1916 P. C. 16 where it was held that an application for execution presented to a Court which had no jurisdiction to execute the decree was not a step-in-aid of execution. The Calcutta case was directly referred to in Chandmal Marwari v. Shib Prasad AIR 1934 Pat. 192 and this has been relied on by the learned Advocate-General. But in that case the suit was instituted in 1911 in the Court of the Subordinate Judge of Manbhum sitting at Purulia for possession of certain land situated in the sub-division of Dhanbad. The suit was decreed but on appeal the defendant was successful and the suit was dismissed with costs. Sometime after, the defendant applied for execution of the decree for costs in the Court of the Subordina''te Judge of Manbhum sitting at Purulia. In 1917 the Lieutenant Governor by notifications established the Subordinate Judge''s Court at Dhanbad and fixed the local limits of its jurisdiction as the executive sub-division of Dhanbad and its local limits ceased to be included in the local limits of the Subordinate Judge of Purulia. These notifications were passed during the pendency of the appeal which was disposed of by the Privy Council in 1931. In these circumstances the defendant applied in 1931 for execution of the decree for costs in the Court of the Subordinate Judge sitting at Purulia by selling lands situated in Purulia outside the sub-division of Dhanbad. Objection was taken to the execution on the ground that the proper Court in which the execution should have been started was the Court of the Additional Subordinate Judge of Dhanbad and not the Subordinate Judge sitting at Purulia. The learned Chief Justice observed that "the suit was instituted in the Court of the Subordinate Judge at Purulia and the decree was passed by that Court, and the mere fact that for administrative purposes the Court of the Subordinate Judge is now divided between the Subordinate Judge and the Additional Subordinate Judge does not make the Court of the Subordinate Judge at Purulia any the less the Court of the Subordinate Judge of Manbhum nor does it prevent it from executing the decree." and observed at p. 29:

If it had been the fact that the Court of the Subordinate Judge of Manbhum sitting at Purulia neither at the time of the suit nor at the time of the application for execution had jurisdiction over the property against which execution was asked for, it is clear that the application would have been bad: see Prem Chand Dey v. Makhoda Devi 17 Cal. 699 That is not the case. Both at the time of the suit and at the time of the application for execution the Court at Purulia had jurisdiction over the property now sought to be sold

and then made this observation that

the decree-holders had always and still have the right to apply as of course to the Court who passed the decree for execution even if it be in respect of property outside the territorial jurisdiction of such Court and even if execution by such Court could be no more than execution by transmission to another , Court. Such an application can be entertained by such a Court and if made, within time would save limitation.

The learned Chief Justice was not required to seek in aid the decision in the Calcutta case because he had already found that the execution case was instituted in the proper Court which at the time of the suit had jurisdiction over the property sought to be attached. The Calcutta High Court in a later case decided in Sakti Nath Roy Choudhury Vs. Jessore United Bank Ltd. (Registered), has dissented from the dictum of Mukherji J. in Sreenath Chakravarti and Others Vs. Priyanath Bandopadhya and Others, . After elaborately considering the case law, the learned Judges have pointed out that the consistent view of the Calcutta High Court has been that in order to have jurisdiction to execute a decree against immovable properties, the executing Court must have jurisdiction to sell ieither at the date of the suit or at the date when the application for execution is made. With respect I think that this view is the proper view to take. Here it was not disputed that the executing Court had no power to execute the decree by the arrest of the heirs of the deceased judgment-debtor, Firm Johar Mal-Paran Ram Vs. Bindeswari Prasad Singh and Others, , nor had it jurisdiction to attach and sell the moveable properties which were mentioned in the execution petition itself as being situated outside the limits of the Court''s jurisdiction. The entertainment of such an application in my opinion cannot give a starting point of limitation because the Court could not grant any relief to the decree-holder, and when this fact was brought to the notice of the decree-holder he did not pray for the transfer of the decree to the Court at Asansol but stated that he wants to amend his application for execution by inserting therein some immovable properties which are situated within the jurisdiction of this Court.

The question then is whether by the amendment of such an application which was granted on 4th August 1939, the application could be treated to have been filed on 6th July 1939. It has been held by this Court in Jagan Nath Das v. Chamu Raghunath AIR 1929 Pat. 407 that an application for amendment of a pending application for execution made after the decree sought to be executed has become time-barred cannot be entertained. Now here there was no pending execution but the application for execution was incompetent in the view which I have already taken and the subsequent amendment sought to make it a competent application. In an unreported case of this Court (Second Appeal No. 195 of 1943.Raja Kalyani Prasad Singh Deo Bahadur) decided by the learned Chief Justice to which my learned brother was a party on 27th March 1944, it has been held, in similar circumstances that the principle which applies in such cases is that

if by making the new application the decree-holder has substantially abandoned the prayer made in his original application and the second application is a substantial departure from the original application then the second application must be regarded as a new application

and pointed out that in the case before the learned Judges

the principal prayer in the first application was to proceed by attaching and selling the immovable properties possessed by the judgment-debtors. It is true there was a reference to two other modes of execution, namely, attachment of moveable properties and the arrest of the judgment-debtors but these were to be resorted to if the decree was not realised by the sale of the immovable property. On the terms of the application these modes were not to be resorted to if the decree was realised by the sale of the immovable property

and then observed that as the judgment-debtors objected that the immovable properties could not be sold by auction without the sanction of the Commissioner, the decree-holder filed a fresh application in which the substantive prayer now was to proceed against the moveable properties and he included a list of the moveable properties in that application. The learned Chief Justice observed that he had no doubt that this was a substantial departure from the terms of the first application and this application would not have been filed if the execution could have proceeded on the original application by the sale of the immovable properties and that notwithstanding the fact that in drafting the second application care was taken to frame it in such a way as to show that the second application was merely supplementary to the first application, but having regard to the substance and not merely to the words which have been used in the two applications and also having regard to the prayers respectively made in them it must be held that the second application was in fact a new application. The observations in this case apply a fortiori to the facts of the present case. If the decree-holder could have secured the relief from the executing Court by having the judgment-debtors arrested or by selling the moveable properties which he had mentioned in that application he would never have resorted to the application for amendment of the execution petition. Reference may also be made to another case decided by the learned Chief Justice Mt. Khodaijtul Kubra v. Ugrah Singh A. I. R. 1944 Pat. 214. In that case in the application for execution the prayer was that "upon the application being registered and after taking the proper steps and issuing the necessary processes the decretal amount be realised by the attachment and sale of the property which is the subject of talika," but no inventory of the properties which the decree-holder wanted to be attached and sold was supplied in the execution application. It was held that such an application which did not at all contain the description of the properties to be attached was not one in accordance with law within the meaning of Article 182 (5) and that when the application only stated in very general terms that the necessary steps may be taken without making it clear what steps were required to be taken, the application could not be treated as a step-in-aid of execution either.

The converse case is illustrated by Gajanand Shah v. Dayanand Sahu A. I. R. 1943 Pat. 127. In that case the decree-holder by a subsequent application wanted to amend the application for execution by asking the Court to delete a property which already was fully described in the execution petition and to substitute in its place another property with a totally different description. Fazl Ali J. (as he then was) pointed out the true scope of Order 21, Rule 17, Civil P. C, and observed that where the decree-holder wishes by means of a subsequent application merely to correct any mis description of the property mentioned in his application for execution his application may be regarded as a continuation of that application, but, where he tries to substitute a new property which is quite different from the property in the first instance it must be regarded as a fresh application for execution, and the decree-holder cannot be allowed after the expiry of the date of limitation to execute the decree against a property which was not specified in the application for execution as originally presented. Now these are exactly the facts of the present case. The decree-holder is not by the second application trying to give a clear and definite description of the property which he wanted to sell in the first execution petition of 6th July 1939, but he is now asking the Court to allow him to execute the decree against a wholly different property which was never mentioned in the first application at all. For these reasons I am of opinion that the learned Subordinate Judge was in error in the view which he took on both the points. The execution of the decree was barred by limitation. I would allow the appeal, set aside the order of the learned Subordinate Judge and dismiss the execution proceedings.

Beevor, J.

I agree.