Mt. Bibi Zalikhan vs Rama Prasad

Meredith, J.—This is an appeal from an order of the learned District Judge of Patna, dated 14th September 1939, confirming an order of the Munsif of Patna, dated 14th March 1939.

The appeal is by a judgment-debtor, who had contended unsuccessfully before the Courts below in an application u/s 47, Civil P.C., that execution of the decree was barred by limitation. The circumstances can best be made clear by a table of dates.

16-5-1922--final mortgage decree obtained by the respondent and his father against the appellant''s husband. 20-7-1922--final execution petition dismissed. 10-4-1923--second execution petition dismissed. 14-5-1924�respondent''s father: the sole major decree-holder, died, respondent still being minor. 7-12-1924--respondent''s mother appointed his guardian. 10-8-1935--respondent attainted his majority. 6-8-1938--the present execution case filed by the respondent. 3. From this table it appears that the present execution case was filed within 3 years of the attainment of majority but more than 12 years after the dismissal of the previous execution case. The contention of the respondent was that limitation was saved under Sections 6 and 7, Limitation Act. The sole point made by the appellant is that execution was barred under the provisions of Section 48, Civil P.C. The only question for decision, therefore, is whether Section 48, Civil P.C., overrides Sections 6 and 7, Limitation Act, 1908, or vice versa. The learned District Judge has dealt with this point very briefly as follows:

Now so far as Section 48, Civil P.C., is concerned there is a series of decisions following the Privy Council decision in Phoolbas Koonwur v. Lalla Jogeshur Sahay (75) 1 Cal 226 in which it has been consistently laid down that where a decree is passed in favour of a person who is a minor on that date and he attains majority more than 12 years after that date, Section 6, Limitation Act, applies not only to the periods prescribed by the Limitation Act but also to the periods fixed by the Civil P.C. I am therefore not prepared to accept the contention that the decree in question is barred by Section 48, Civil P.C.

I am unable to find, nor can the Bar enlighten me, any series of decisions in which it has been consistently laid down that Section 6, Limitation Act, applies not only to the period prescribed by the Limitation Act, but also to the periods fixed by the Civil P.C. If there were such a series it would not be following the Privy Council decision in 1 Phoolbas Koonwur v. Lalla Jogeshur Sahay (75) 1 Cal 226 for the Privy Council decision related to two Acts quite differently worded from the present Limitation Act and the present Civil P.C. What the Privy Council laid down in the case referred to was that the limitation of one year provided by Section 246 of Act 8 of 1859 was subject, in the case of a minor, to be modified by Sections 11 and 12 of Act 14 of 1859. It is true that Sections 11 and 12 of Act 14 of 1859 deal with limitation for persons under a disability; but the wording of these sections was materially different from the wording of Section 6 of the present Limitation Act.

Section 246 of Act 8 of 1859 moreover had nothing to do with the present Section 48, Civil P.C., but fixed a period of limitation of one year for claim cases, corresponding most nearly to the present Order 21, Rule 58, Civil P.C., The most that could be derived from that decision towards a solution of the present problem is that, speaking generally, the provisions of the CPC are subject to the provisions of the Limitation Act. There are no doubt decisions following the Privy Council upon that point, and I shall refer to some of them. That however is not the point which arises in the present case. The question before us here is simply the exact effect relative to each other of two specific sections of two particular enactments. The view taken must be based upon the wording of those two enactments and of the two sections in question. What the Privy Council said about two quite differently worded sections of two other enactments can have little relevance. The wording of the two sections in question, Section 6, Limitation Act, and Section 48, Civil P.C., is such as to lead in each case to a similar inference, and that inference is that Section 6 must be subject to Section 48. The material portion of Section 6 runs as follows:

6 (1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the period of limitation is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed there for in col. 3 of schedule 1.

The important point here is that Section 6 is made to govern not the periods of limitation prescribed generally in any Act, but only the periods prescribed in col. 3 of Schedule 1, Limitation Act itself, although in other sections of the Limitation Act, such as Section 15, the word "prescribed" is used without any such limitation. There is thus a very strong implication from the wording of Section 6 that it was intended not to apply to periods of'' limitation prescribed under other Acts, and accordingly that Section 6 is subject to Section 48, Civil P.C. That this view is correct appears also when we turn to Schedule 1, Limitation Act.

Take the general provisions contained in Article 181, which provides three years for applications for which no period of limitation is provided elsewhere in this Schedule or by Section 48, Civil P.C, 1908.

Similarly Article 182 is:

For the execution of a decree or order of any civil Court not provided for by Article 183 or by Section 48, Civil P.C, 1908 (italics mine).

In the case of Section 48 it self there is similar implication, though perhaps not so strong. Section 48 runs as follows:

48(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from (a) the date of the decree sought to be executed, or, (b) where the 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, the date of the default in making the payment or delivery in respect of which the applicant seeks: to; execute the decree.

(2) Nothing in this section shall be deemed (a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at sometime within twelve years immediately before the date of the application; (b) to limit or otherwise affect the operation of Article 180 of Schedule 2, Lim. Act, 1877.

Thus, Sub-section (2)(b) provides that "nothing in this section shall be deemed to limit or otherwise affect the operation of Article 180 of Schedule 2 to the Limitation Act, 1877", which corresponds to Article 183 of the present Act, ,1908. There is thus an implication that Section 48 is intended to affect the remaining provisions of the Limitation Act, and this: implication is supported by the wording of para. 1 of Section 48 which does not merely prescribe a period of limitation but lays down in catagorical terms that in the circumstances contemplated no order for the execution of the same decree shall be made, the implication clearly being that this is meant to bar any order for execution even where, so far as limitation is concerned, the right to execute might otherwise exist. Thus upon a careful examination of the wording of Section 6 and Section 48 we find that there are to be derived two cross-inferences reinforcing each other, and what is to be inferred by implication from each section is the same, namely that Section 48, Civil P.C, was intended to override Section 6, Limitation Act of 1908, and not vice versa. As for authority on the point, the position is that all the High Courts so far as they have dealt with this point have, except Bombay, adopted this view.

The Bombay line of decisions takes its origin in Moro Sadashiv v. Visaji Ragunath (92) 16 Bom. 536. This is an order by Sir Charles Sargent C.J., and Bird wood J., upon a reference from a District Judge, and it is perhaps significant that there was no appearance for the parties in the High Court and the question was, therefore, not argued. The matter was dealt with in a few lines, and it is also significant that the learned Chief Justice started off by observing: "Section 7 of the Statute of Limitation strictly speaking, only applies to the cases dealt with by the statute itself." He goes on, however:

The question referred to us must be decided upon the general principle of law as to the disability of minors, to which the provisions of the CPC must, in the absence of anything to the contrary, be deemed to be subject. The general principle is that time does not run against a minor; and the circumstance that he has been represented by a guardian does not affect the question.

This was followed in Ramkrishna Vithal v. Ramchandra Datatraya AIR 1930 Bom. 508. There the learned Judges dealt with the matter as follows:

Mr. Gajendragadkar has addressed an able argument before us contending that Section 6, Limitation, Act, does not govern Section 48, Civil P.C, and that it should be held that an application for execution, falling as it does u/s 48, Civil P.C., would not be saved by Section 6, Limitation Act, from being time-barred. In our opinion Moro Sadashiv v. Visaji Ragunath (92) 16 Bom. 536, has been considered to be an authority in this Court for so long that it may now be regarded as having become an established principle so far as this High Court is concerned. Whatever views the other High Courts may hold on this subject it has not been shown that the view taken in Moro Sadashiv v. Visaji Ragunath (92) 16 Bom. 536 is contrary to the principles of natural justice or has caused any undue hardship or inconvenience to parties.

The Bombay view is thus based in the one case on some supposed general principle, and in the other merely on course of precedent and natural justice. With regard to this general principle it has been pointed out by the Privy Council in Beckford v. Wade (1811) 17 Ves. 87 and Mahomead Bahadur Khan v. Collector of Barelly (74) 1 I.A. 167 and by the Madras High Court in Ramana Reddi v. Babu Reddi AIR 1914 Mad 526 that limitation being the result of statute law, no exemption from it can be recognized except what the statute itself provides. There can be no resort in such a case to any general principle. Similarly with regard to the reliance on "natural justice" Ramkrishna Vithal v. Ramchandra Datatraya AIR 1930 Bom. 508 , it is enough to say that when it is a case of interpreting specific sections of the law any reference to "natural justice" -- whatever that may be -- seems to me out of place. Then as to the reference to precedent, the only other Bombay ruling brought to our notice on the point took a different view: Balaram Vithalchand Gujar Vs. Maruti Devji Dubal, which is curiously enough not referred to in Ramkrishna Vithal v. Ramchandra Datatraya AIR 1930 Bom. 508 in which it was pointed out that Section 48, Civil P.C, is more extensive in its application than the previous Section 230 of the Code of 1882 and that the fresh periods which can be obtained under the provisions of Article 182, Limitation Act, do not escape the provisions of Section 48, Civil Procedure Code.

The point before us has been very clearly dealt with by the Nagpur High Court in Yado Rao v. Govind Rao AIR 1939 Nag. 245, a very recent case, where it has been expressly held that Section 48, Civil P.C., is not controlled by Section 6, Limitation Act, and the rule fixing twelve years as the limit of time for execution applications from the date of the decree laid down by Section 48 applies in the case of minors. The Bombay view is noticed, and is dissented from.

In Prem Nath v. Chattepal AIR 1915 All. 349, a similar view is taken by the Allahabad High Court, and the Bombay view is rejected. The Madras High Court in the ruling to which I have already referred, Ramana Reddi v. Babu Reddi AIR 1914 Mad 526, also takes the view that Section 48 overrides Section 6, Limitation Act, and refuses to adopt the Bombay view. Our attention has not been drawn to any Calcutta decision directly upon the point, but in Kartic Chandra Mukherjee Vs. Bata Krishna Roy and Others, it is observed as obiter dictum that the weight of judicial authority is in favour of the view that as Section 48, Civil P.C., specially provides for limitation, it is not governed by the provisions of Sections 6 and 7, Limitation Act, and it is noticed that the Bombay view has been dissented from by other High Courts.

In our own High Court also here seems to be no case directly in point, though in Mt. Dulhin v. Harihar Gir AIR 1939 Pat. 607 it has been pointed out that the amendment of a decree does not afford a new starting point for limitation so as to extend the period of twelve years fixed by Section 48, as Section 48 is not controlled by the provisions of Article 182(4), Limitation Act.

In addition to the Privy Council decision in Phoolbas Koonwur v. Lalla Jogeshur Sahay (75) 1 Cal 226 and the Bombay cases, a Madras and an Allahabad ruling have been relied on by the learned advocate for the respondent. The Madras case is Mannarswami Ayyar v. Ramaswami Nayakkan AIR 1929 Mad. 394. It is however not in point. There was no question of any execution beyond twelve years, and Section 48 was referred to only incidentally in connexion with an observation that an argument which was sought to be founded upon Ramana Reddi v. Babu Reddi AIR 1914 Mad 526 , could not be so founded. The Allahabad case is Koer Durag Pal Singh Vs. Th. Pancham Singh and Others, .

In that Full Bench decision it was held that Section 15, Limitation Act of 1908, overrides the provisions of Section 48, Civil P.C. It is to be observed however that in Section 15 the word "prescribed" is used generally, as I have already noticed, and not in the limited sense in which it is used in Section 6 This ruling, if it suggests anything with regard to Section 6, suggests by implication that, while Section 15 does, Section 6 does not, override Section 48.

Lastly, the respondent seeks to rely upon Section 7, Limitation Act. The argument is that whereas Section 6 expressly refers only to periods of limitation prescribed in Schedule 1, Section 7 does not. There is an obvious answer to this argument, which makes it unnecessary to consider whether Section 7 could in any event, apart from Section 48, avail to save limitation in the present case. That answer is this: Section 7, is in a sense a subsidiary section to Section 6, and must be read with it. This is clear from the fact that it is not self-contained. It refers only to "such disability," the word "such'' manifestly referring to the disabilities enumerated in Section 6. Where therefore Section 7 says that time will or will not run, that time must be taken to be the time referred to in Section 6, that is to say, the time specified in Col. 3, Schedule 1 of the Act. In my view, there can be no doubt that both Sections 6 and 7 Limitation Act, 1908, must be read subject to the provisions of Section 48, Civil P.C.

I would therefore allow this appeal with costs, and direct that the appellant''s objection be allowed with costs throughout, and the execution petition be rejected as time-barred.

Dhavle J.

I entirely agree. The words of Section 6 of the present Limitation Act, with which Section 7 must be read, make it perfectly clear that the allowance made by the section for such disabilities as minority is to operate only in respect of the time prescribed in Col. 3, Schedule l; and the Act continues to mention Section 48, Civil P.C, specifically in what now appear as Articles 181 and 182. There is further the obvious inference to be drawn from the addition of Sub-section (2)(b) in Section 48, Civil P.C, which specifically saves Article 180 of the schedule to the Limitation Act. The Bombay view that the provisions of the CPC of 1882 must, in the absence of anything to the contrary, be deemed to be subject to the general principle of law as to the disability of minors, which continues to be followed there on the principle of stare decisis can hardly be reconciled with this specific addition to Section 230 of the old Code. The correctness of that view moreover even under the Code of 1882, is more than open to doubt, as was shown in the case in Ramana Reddi v. Babu Reddi AIR 1914 Mad 526 and in AIR 1932 165 (Privy Council) their Lordships of the Judicial Committee reported the principle to which expression had been given before on various occasions:

The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions, equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide.