Manindra Nath Mondal vs Mugneram Bangur and Company

P.N. Mookerjee, J.—In this appeal by the judgment-debtor the only point that arises for consideration is whether the execution of the decree in question is barred by limitation either as to its entirety or at least as to a part of it. Both the Courts below have answered the question in the negative and hence this appeal by the unsuccessful objecting judgment-debtor.

The relevant facts lie within a short compass and they may be briefly stated as follows: On April 4, 1944, the decree-holder Messrs. Mugneram Bangore and Co. obtained an instalment money decree for Rs. 1,769-8 as plus costs in Money Suit No. 40 of 1942, of the second Court of the Munsif at Alipore. The costs were directed to be paid within one month from the date of the decree and the rest of the decretal amount was made payable in four instalments beginning from Pous, 1351 B.S., to Pous, 1354 B.S. In the decree there was a default clause that in case of default in the payment of any one of the kists the whole amount of the decree then outstanding would become immediately payable.

There was default in the payment of the first two instalments as also in the payment of the costs and, accordingly, in the early part of 1946,-on January 24, 1946, to be precise, the decree-holder took out execution in Money Execution Case No. 16 of 1946 for the entire decretal dues in terms of the default clause mentioned above. The judgment-debtor objected that, in view of Section 34(2) of the Bengal Money Lenders Act, the execution for the entire decretal dues in default of payment of some of the kists was not allowable and under that provision of the law it was permissible only for the defaulting kist or kists.

The objection succeeded before the learned Munsif who by his order, dated July 16, 1946, held that the execution could not proceed for realisation of the entire decretal amount for default of some of the kists. He, however, did not dismiss the execution case but allowed the decree-holder to proceed with it for realisation of the defaulting kists according to law. Thereafter, the execution case proceeded for some time and, eventually, it was dismissed for default on August 12, 1946.

In the meantime the decree-holder had filed an appeal from the learned Munsif''s order, dated July 16, 1946. The appeal was dismissed by the learned Subordinate Judge by his order, dated March 18, 1947, where after referring to Section 34(1)(b) of the Bengal Money Lenders Act and obviously having in mind also Section 34(2) of the Act, the learned Judge proceeded to observe inter alia as follows:

The Court has directed execution with regard to the defaulting instalment in supersession of the provision of the decree that in default of one instalment all the instalments will fall due. I think it is within the rights of the executing Court to do it.

The decision of the learned appellate Court is, therefore, on the whole right and should be supported.

There was no payment by the judgment-debtor and, all the instalments having fallen due in the meantime, the decree-holder put the entire decree into execution again on August 8, 1949, in Money Execution Case No. 104 of 1949. After service of the usual notice under Order XXI, Rule 22 of the Code of Civil Procedure, the judgment-debtor appeared and filed objections u/s 47 of the Code. Various objections were urged in the two Courts below but the only objection which is material for our present purpose is that the present execution is time-barred. The judgment-debtor''s objections were all overruled by the learned Munsif and by the lower appellate Court as well and the execution was allowed to proceed. Hence this appeal by the judgment-debtor.

In support of the appeal Mr. Mitter has urged only the point of limitation. His contention is that at least with regard to the costs and the earlier instalments of the principal decretal dues which fell due on the expiry of Pous, 1351 B.S. and 1352 F.S., i.e., in the middle of January, 1945 and January, 194(sic) the present execution is clearly time-barred. He has argued (sic) at the previous execution case (Money Execution Case No. 16 of 1946) which was filed on January 24, 1946 and which was dismissed for default on August 12, 1946, and the appeal in connection wherewith was dismissed on March 18, 1947, cannot save limitation as neither the application which started that execution can be regarded as an application for execution in accordance with law nor the said application nor anything done in the said proceedings can be a step in aid of execution as contemplated in Article 182(5) of the Indian Limitation Act. The contrary opinion, expressed by the two Courts below, that the said previous application for execution was in accordance with law or was at least a step in aid of execution, sufficient to save limitation, within the meaning of the above article has been assailed by the learned advocate as clearly wrong and unsustainable.

The question raised is undoubtedly one of some difficulty and judicial opinion on the interpretation of the relevant words in Article 182(5) is not also uniform. But it is at least fairly clear that the preponderance of view is in favour of a liberal interpretation of that article which aids and does not hinder realisation of just dues [vide, Sm. Akshoy Kumari Debi and Ors. v. Nalini Ranjan Mukherjee and Ors. (1950) 54 C.W.N. 815].

Under Article 182(5) of the Indian Limitation Act which admittedly governs the present case, limitation starts from

the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step in aid of execution.

There is no dispute that the present execution is within 3 years from August 12, 1946, when the previous application for execution was eventually dismissed for default, or from March 18, 1947, when the appeal, arising out of the previous execution proceeding, was dismissed. If, therefore, the previous application for execution was either an application for execution or a step in aid of execution as contemplated in Article 182(5) or if the above appeal, arising out of the said execution proceeding, was such a step-in-aid, the present application which is within three years from the date of the final order in either case would be quite within time and the present appeal must necessarily fail.

Under the plain terms of the decree, obtained by the decree-holder company, it was entitled to execute it for its entire dues in case of default of any of the kists or instalments. The decree, therefore, was put into execution quite in accordance with its express terms in the previous execution case of 1946. What the executing Court really did on that occasion and its said decision whether right or wrong is binding upon the parties was to modify the terms of the decree and to allow the execution to proceed in accordance with such modification; in other words, "it treated the previous execution application as effective for execution of the decree regarding the then defaulted kists.

While accepting the judgment-debtor''s contention that the execution could not then proceed for realisation of the entire decretal dues, the Court was prepared to proceed with it for realisation of the defaulting kists. The effect of the order clearly was that, on the application for execution, then before the Court, execution could issue, though not for the entire decretal amount but only for the defaulting kists. That is perfectly clear from the appellate or the final judgment from which the relevant extract has been quoted above. The execution case was not dismissed by the Court by its order, dated July 16, 1946, but the Court clearly thought that it was competent to proceed with it for realisation of the defaulting kists and its said decision was affirmed in appeal and became finally binding between the parties. In the above view of the matter, neither of the two cases cited, viz., the cases of Saday Chandra Jana v. Paresh Nath Ghosh and Ors, (1921) 35 C.L.J. 82, and Firm Johar Mal-Paran Ram Vs. Bindeswari Prasad Singh and Others, , can be of any real assistance to his client and the previous application for execution in the present case cannot be held to have not been made "in accordance with law" within the meaning of Article 182(5) on the authority of either of those two cases. There is also no question that the execution case of 1946 was started before the proper Court. I, accordingly, hold that, in the circumstances of the present case, the previous application for execution was "an "application made to the proper Court in accordance with law for "execution of the decree", as contemplated in Article 182(5) of the Limitation Act and that, therefore, the present execution is not time-barred.

It seems to me further that in the present case limitation would also be saved by the final order passed by the appellate Court on the last occasion, viz., on March 18, 1947. Even assuming that the execution application of 1946 was not made in accordance with law, the appeal which was taken from the learned Munsif''s order, dated July 16, 1946, was clearly competent and was duly filed before "the proper Court in accordance with law". Clearly also it was filed within three years of the first default. On the authority, therefore, of the decision of the Judicial Committee, in (1945) L.R. 72 I.A. 296 (Privy Council) , that appeal can and ought to be treated as "an "application made to the proper Court in accordance with law to "take a step-in-aid of execution of the decree" within the meaning of Article 182(5) of the Limitation Act, and that, accordingly, the period of limitation would, in the present case, start from the date of its final order, viz., March 18, 1947. The present execution, filed on August 8, 1949, would thus be clearly within time.

I, accordingly, hold that in the present case, limitation would be saved under both the branches of Article 182(5) of the Limitation Act and the Courts below were right in rejecting the judgment-debtor''s objection u/s 47 of the CPC and their decision must be affirmed. This appeal, therefore, fails and it is dismissed but, as the point involved was not altogether free from difficulty, I would make no order for costs in this Court.