Mt. Bhagwanta Kuer and Another vs Dewan Zamir Ahmad Khan and Others

Adami, J.—These appeals are directed against an order passed in execution proceedings by the District Judge of Shahabad disallowing certain objections raised by the Judgment debtors, the present appellants.

It appears that a decree was obtained against the appellants in a mortgage suit on the 23rd October 1903. There was an appeal t. this Court which was decided in 1905, and then an appeal to their Lordships of the Privy Council which was decided on the 26th November, (sic). The final decree for the sale of the mortgaged properties following the decree of the Privy Council was passed on the 5th February 1916.

The original decree-holders Lala Shamlanand Sahai, Babu Raghubir Saran and Babu Ganga Saran, each had a one-third interest in the decree. Execution of the decree was applied for on the 11th March 1916 by these decree-holders, and from that date onwards the proceedings followed the usual slow protracted course, every effort being made to delay the inevitable sale, till the 7th June 1919 when Lala Shamlanand Sahai filed a petition to the effect that he had sold his one-third share in the decree to Zamir Ahmad Khan, Nearaat Khan, Mohdi, Hussain Khan, Sayeed Khan and Babu Muhammad Khan by a sale deed dated the 5th June 1919, and prayed that these gentlemen should be substituted as decree-holders in his place. Another petition for substitution was made in respect of the one-third share originally belonging to Babu Ganga Saran, which had been sold to Zamir Ahmad Khan and others. Babu Raghubir Saran has already sold his share to Thakur Adit Prasad, and the latter had resold it to Zamir Ahmad Khan and others. On the 7th Jane 1919, the purchasers, Zamir Ahmad Khan and the other gentlemen named above together with Sadey Khan filed a petition to the effect that they had purchased the share of Lala Shamlanand Sahai, and also the share of Ganga Saran which Ramath Upadhya had previously purchased, and the share of Babu Raghubir Saran which Thakur Adit Prasad had previously purchased, and had thus purchased the entire decree. They prayed that they might be substituted as representatives of the decree holders and that execution proceedings might be duly taken.

On the above petitions order was passed that they should be put up on the data fixed, that is to May the 14th June. On the 14th June order was passed: "Let the names of the purchasers be substituted for the original decree-holders. This execution proceeding will be struck off after making the purchasers parties, so that they may institute fresh proceedings in execution".

The assignees of the decreed id not however make any fresh application for proceedings in execution until 13th June 1922, and when this application was made the present appellants, who are subsequent mortgagees of the properties, raised the objections (1) that the assignees of the decrees who were seeking execution were mere farzidars of the judgment-debtors (2) that the application was made more than three years after the last step in aid of execution was taken on the 7th June 1919, and was thus barred under Article 182 of the Schedule to the Limitation Act, (3) that, if Article 183 applied, the proceedings were bad owing to non-compliance with the provisions of Rule 15 of Order 45 of the Civil. Procedure Code, and (4) that failure to issue the notices required by Rule 16 of Order 21 vitiated the proceedings.

The learned District Judge found that the objectors had failed to show that the purchasers of the decree were farzidars of the judgment-debtors, (2) that the date from which time began to run under Article 183 was the 14th June 1919 and therefore the application on the 13th June 1922 was not barred, but that (3) Article 183 applied since the final decree was merely a ministerial act and the execution was really the enforcement of the order of His Majesty in Council, so no question of limitation, arose in the case. He held that the objection with regard to non-compliance with Rule 15 of Order 45 could not be now raised since no such objection had been made at the first application for execution, (4) with regard to the objection as to absence of notices under Rule 16 of Order 21, the learned District Judge pointed out that the order for substitution was passed in the presence of the transferees and this objection not having been specifically taken in the pleadings no onus lay on the applicants for execution to show that the order was passed in the presence of the judgment-debtors. Furthermore the object of Rule 16 of Order 21 was being carried out in the hearing and consideration of the objections before the Court. The District Judge therefore allowed the objections and it is against his order that this appeal has been made, the same legal objections being raised in this Court.

The finding of the learned District Judge that, if Article 182 of the Schedule to the Limitation Act applies it must be held that the last step in aid of execution in this case was taken on June 14th, 1919, and not on June 7th, 1919, it is, I think, wrong. Clause 5 to Article 182 states definitely that time is to run from the date of applying in accordance with law to the proper Court to take some step in aid of execution. The application was made on June 7th, though the order for substitution was made on June, 14th. It has been laid down in the case of Raj Behari Chakravarti v. Kalihar Gupta [1909] Crl.L.J. 479 and in Mochai Mandal v. Meseruddin Mollah [1911] Clr.L.J. 26 that in cases of this kind time runs from the date when an application is presented to the Court, and not from the date on which the application is considered and disposed of by the Court. Mr. Sushil Madhab Mullick''s contention for the appellants on this point must be upheld; but the point is one of purely academic interest in this case, and cannot affect the decision of this appeal as I will proceed to show.

In the first place, I may note that, even if it were held that Article 182 applied in the present, case and not Article 183, it would seem that execution proceedings to be taken on the application of June, 13fch 1922, would be merely a continuation of the proceedings which resulted in the order of June 54th 1919, and so would not be barred even if Article IBS applied. When the petitions for substitution of the transferees were filed on June 7th 1919, and were granted on June 14th there was no reason why the execution should not have proceeded with the transferees substituted for the decree-holders; there was no necessity to strike off the execution proceedings. The proceedings were struck off without any default on the part of the decree-holders or their transferees. Under the circumstances I am of opinion that subsequent proceeding should be held to be in continuation of the previous one, and the question of limitation will not arise. In this opinion I am supported by the decision of this Court in the case of Mr. Gulab Kuer v. Syed Mohammad Zaffar Hussain [1921] 2 Pat. L.T. 619 to which I was a party. There it was held that an application under Order 21 Rule 16 made during the pendency of execution proceedings was not an application for fresh execution but an application for the continuation of the pending execution case. Das, J. pointed out that Order 21 Rule 16 required notice of the application for execution, and not of the assignment, to be given to the transferor and judgment-debtor, and therefore when the assignee applies during, the pendency of the execution case to continue it, he does not apply for fresh execution and no notice is required.

In the second place the question is whether Article 182 applies or as held by the Judge, Article 183. The appellants have not placed before us the order of His Majesty in Council passed on appeal in 1912 so that we do not know its precise terms. We only know from the order of the District Judge that the final decree was passed by the District Judge in 1916 in accordance with the order of the Privy Council. The preliminary decree after the decision of their Lordships of the Privy Council was an order of His Majesty in Council, and, as pointed out by the learned District Judge the preparation of the final decree was purely a ministerial act to enable the order of His Majesty in Council to be enforced. I do not think that can be contended that the execution proceedings were not taken in order to enforce the order of His Majesty in Council. After a consideration of the decisions of the Calcutta High Court in Luchman Persad Singh v. Kishun Persad Singh [1882] 8 Cal. 218 Futteh Narain Chowdhry v. Chandrabati Chowdhrani [1893] 20 Cal. 551 and of this Court in Tribikram Deo Narayan Singh v. Badri Misser 20 C.W.N. 1051 there is no doubt left in my mind. It may be noted that the original decree was obtained in the District Judge''s Court in a suit under the Transfer of Property Act.

Under Article 183 twelve years limitation in this case would begin to run from the date of the order of His Majesty in Council that is to say from November 26th, 1912, so the application for execution which is now the subject of this appeal would be within time.

But Mr. Sushil Madhab Mullick has argued that the procedure laid down in Rule 15 of Order 45 of the CPC has not been complied with, that is to say no petition under that Rule was filed before this Court to enable it to transmit the order of His Majesty in Council to the Court of the District Judge for execution, and that the provisions of Rule 15 Order 45, being mandatory, the present application for execution must be dismissed.

The contention that, the provisions of Rule 15 are mandatory and failure to comply with them renders an application for execution liable to dismissal, is not open to question. I need only refer to the case of Tribikram Deo Narayan Singh v. Badri Misser 20 C.W.N. 1051 cited above but it is to be noted that in the present case, application was made for execution on March 11th, 1916 and execution was ordered.

No objection on the ground that the provisions of Rule 15 of Order 45 had not been complied with was made then, nor at any time until the execution proceedings were struck off on June 14th, 1919, though countless objections on other grounds were constantly being put forward. We have no papers before us to show whether in fact a petition was filed and the procedure required by Rule 15 of Order 45 was followed, all we know is that the order of His Majesty in Council must have been transmitted to the District Judge, for he proceeded to put it into execution.

I agree with the learned District Judge that the objection first made at this late stage cannot be allowed to succeed, it ought to have been taken at the first application for execution which was made in 1916.

Mr. Sushil Madhab Mullik''s third contention is that the application for execution ought to be dismissed because notices under Order 21 Rule 16 were not issued to the transferors and judgment-debtors, the provisions of that Rule being mandatory. The decisions in Kassum Goolam Hossein v. Dayabhai [1912] 36 Bom. 58 Gulzari Lal v. Daya Ram [1887] 9 All. 46 and Notan Das v. Luchman Singh [1921] 2 Lah. 230 are authorities for the proposition that the provisions of the Rule are of mandatory character and that non-compliance with them renders all proceedings in execution. In the present case it is evident that the general necessity for such notice was known to the applicants for execution for in their application they stated "the above purchasers were substituted for the original decree holders in the previous execution case on 14th June 1919 in the presence of all the parties. Hence notice under Order 21 Rule 16 CPC is not necessary."

That the transferors had notice cannot be gainsaid, they themselves filed petitions for substitution of the names of the purchasers. The judgment-debtors too were before the Court and must have had notice. The District Judge points out that the objection regarding Order 21 Rule 16 had not been specifically taken in the pleadings, and therefore there was no onus upon the applicants to show that the order of substitution was passed in the presence of the judgment-debtors. It cannot be suggested that the judgment-debtors had no knowledge of the substitution made in the previous execution proceedings before the fresh application was made. In any case the object of Rule 16, namely to give the judgment-debtors an opportunity to at tack the substitution of assignees of the decree has been fully met, for the present appellants put in their objection and it was considered before any further steps were taken towards the execution of the decree. If it is shown that the judgment-debtors had notice by being present when the petitions for substitution were being considered by the Court, the fact that written notice was not served on them will not nullify the proceedings.

To conclude the matter, I may again refer to the decision of this Court in the case of Mt. Gulub Kuer v. Seyed Muhammad Zaffar Hussain [1921] 2 Pat. L.T. 619 where it was held that it is not notice of the assignment but notice of the application for execution, of the decree which is required by the proviso to Rule 16. In this case there is no doubt that notice of the fresh application was given to the appellants for they appeared and objected. Therefore I cannot uphold the contention of Mr. Mullick.

On behalf of the judgment-debtors Nos. 12 and 13 Mr. Kailaspati has urged the same legal objections as were raised by Mr. Mullick and with which I have dealt but he has a further objection with regard to the District Judge''s finding on the question whether the respondents purchasers of the decree were farzidars of the judgment-debtors. He complains that his clients were not allowed time to secure the presence of some of their witnesses with regard to this question.

It appears from the order sheet that on July 22nd, 1932, these two judgment debtors asked for time to file their objections, and obtained time till August 11th when their objection was filed. On October 25th, the parties were directed to come ready with their witnesses on December 1st. On that date the present respondents were ready but an objector asked for time which was given but it was ordered that no further adjournment casts would bi allowed. On January 5th, 1923 the objectors filed lists of witnesses who were to be summoned �H deposit of diet expenses. The deposit was not made until January 2�tJ� when summonses were ordered to issue for February 18th. On the 16th February the objector''s witnesses did not appear and the Court rejected their petition for more time and proceeded to hear the case. The petition for time on the 6th February stated that in spite of service of summons the witnesses had not come, and the petitioners heard, that some witnesses were ill while others had gone to celebrate marriages. In my opinion the District Judge acted rightly in refusing further time, he had previously given warning to the objectors, and no good or sufficient reason was given for the absence of the witnesses. The original decree was passed in 1903 and the order on appeal to their Lordships of the Privy Council in 1912, it was plainly the duty of the Court to prevent the further protraction of the execution proceedings.

As a result of my findings on the points put forward by the appellants the appeals must be dismissed with costs.

Bucknill, J.

I agree.