Mungul Pershad Dichit and Another vs Grija Kant Lahiri Chowdhry

Barnes Peacock, J. 1. On the 22nd of September, 1877, Ishana Debt, the mother and guardian of the Appellants, presented a petition to the Subordinate Judge of Mymensing, in which she stated that her husband instituted a suit, No. 26 of 1851, against Shama Kant Lahari Chowdry, deceased, and obtained a decree against him on the 8th of July in that year; that, after application to execute the decree, her husband died, and that she, as guardian of the minors, being substituted in the place of her husband, revived the decree against the Defendant, Shama Kant Lahiri, and after his death against his son, who was the owner and possessor of the property left by him, and that the property of the judgment debtor was attached; that after the date of the sale had been fixed the sale was stayed on the application of the judgment debtor with the attachment continuing, and the execution case struck off on Monday, the 9th of February, 1875. She, therefore, prayed that the execution case might be restored, and that notice, being first served on Grija Kant Lahiri Chowdry, the son and heir of the said Shama Kant, the amount due under the decree might be realized, together with interest for the time of pendency and the costs of execution by sale of the property under attachment. 2. The facts stated in the petition were correct, and were reported to be so by the Amlah to whom the case was referred for report. The judgment debtor, having been served with notice, appeared, and contended, amongst other things, that the application was barred by limitation, that the decree was dated the 8th of July, 1851, and that no proceedings had been bona fide taken from that time to keep the decree alive within the period laid down by Act XIV. of 1859 and IX. of 1871, and he alleged that the decree holder, actuated by mala fides, not having realized the money for such a long time, simply with the desire of increasing the interest, was not entitled, according to law and justice, to enforce it. 3. The dates of the several applications and proceedings to enforce, or keep in force, the decree are, with one exception, correctly stated in the judgment of the Subordinate Judge. They are as follows:

The date of the decree, 8th of July, 1851. First petition of execution, 3rd of May, 1861. Notice served, 25th of May, 1861. Struck off for default of payment of costs of attachment, 27th of June, 1861, Second petition, 9th of February, 1863. Struck off for default of payment of costs, 29th of August, 1863. Third petition, 19th of December, 18b''4. Debtor''s property attached, 6th of June, 1866. Struck off at request of parties, 19th of June, 1866. Fourth petition against Grija Kant as heir of Shama Kant, now deceased, 8th of May, 1868. Notice, attachment, sale proclamation, &c., served, after which debtor applied for two months'' time, and execution struck off, 19th of August, 1868. Fifth petition, 26th of July, 1871. Notice served on the debtor, 7th of August, 1871. Attachment caused, 31st of August, 1871. Sale proclamation issued, 26th of September, 1871. Debtor applied for two months'' time, 30th of November, 1871. Struck off for default of payment of sale fee, 31st of January, 1872. Sixth petition, 5th of September, 1874. Notice issued, 10th of September, 1874. Notice served, 23rd of September, 1874. Decreedar''s petition to attach properties, 8th of October, 1874. Sale proclamation issued, 27th of Aughran, 1281. Petition of judgment creditor to stop sale for seven days, and sale stopped, 21st of January, 1875. Debtor''s petition to stop sale for three months, admitting the debt, and kharijed, 25th of January, 1875. Seventh, or present petition, 22nd of September, 1877. 4. Taking those as the correct dates, he held that the application of the 22nd of September, 1877, was barred by limitation, not being within three years from the date of the petition of the 5th of September, 1874, or from the date of the issuing of the notice on the 10th of September, 1874, under Section 216 of the Code of Civil Procedure (Act VIII. of 1859). In arriving at that conclusion, he treated the case as falling within the Indian Limitation Act, 1871 (Act IX. of that year), and he held, amongst other things, that, under clause 5 in the 3rd column of Article 167 of the second schedule, the date of the issuing, and not the date of the service of the notice, was the date referred to; and that under Clause 4 of the 3rd column of the same article, the date of the 6th petition, and not the dates of the subsequent order or proceedings under it, was the date from which the period of limitation began to run. Both of those dates, it will be observed, were more than three years before the 22nd of September, 1877, the date of the petition under consideration. 5. It was urged on behalf of the petitioner before the Subordinate Judge that the period of limitation ought to be counted from the 8th of October, 1874, the date on which the execution creditor applied to attach other properties of the judgment debtor, but he held that that application was not in accordance with the Code of Civil Procedure, and that consequently, upon the authority of the case of Gouree Sunkur Trebedee v. Arman Ali Chowdhry 21 Weekly Reporter, Civil Cases, p. 309., it was not an application within the meaning of the 4th clause of Article 167. In that case, however, which is not fully reported, it is to be inferred that no order was made upon the application. In the present case, the Subordinate Judge, upon the petition of the 8th of October, 1874, made an order on the same day that the attachment process do issue. 6. The effect of that order will be presently considered. 7. The Subordinate Judge also observed that the sixth application was barred by limitation on the 5th of September, 1874, as it was more than three years even from the 7th of August, 1871, the date on which the notice was actually served, and much more so from the date of the fifth application, which was made on the 26th of July, 1871. In support of that view he referred to the case of Bisseshur Mullick v. Maharajah Maharab Chundur 10 Suth. W.R., F.B.R. p. 8. That case, however, is very different from the present. There was merely the service of a notice on the judgment debtor after the decree was haired; but no order was made. Here an order for attachment was made by the Subordinate Judge on the 8th of October, 1874, after notice served on the judgment debtor on the 23rd of September, 1874, to shew cause why the decree should not be executed against him. The order was made by a Court having competent jurisdiction to try and determine whether the decree was barred by limitation. No appeal was preferred against it; it was acted upon, and the property sought to be sold under it was attached, and remained under attachment until the application for the sale now under consideration was made. 8. The Courts below make no reference to the order, or to the attachment under it; and in the list of dates set out by the subordinate Judge, the order, and the date of it, are wholly omitted. Admitting, for the sake of argument, but only for the sake of argument, that the decree was barred when the sixth application was made; when the notice was served on the 23rd of September, 1874; and when the petition of the 8th of October, 1874, was presented, and that the Subordinate Judge ought to have dismissed the petition upon the ground of limitation, although it was not set up or relied upon by the judgment debtor, still his order, though erroneous, was valid, not having been reversed. 9. The applicants appealed to the High Court from the order of the Subordinate Judge rejecting the application now under consideration. The High Court considered it unnecessary to determine the questions arising out of the petition and order of the 8th of October, 1874, or of any of the proceedings between the 5th of September, 1874, and the 22nd of September, 1877, inasmuch as they considered and held that the decree was barred when the petition of the 5th of September, 1874, was presented ; the Judges said, " A decree once dead no proceeding by means of an application out of time could revive it." But, as already observed, the Subordinate Judge had jurisdiction upon the petition of the 8th of October, 1874, to determine whether the decree was barred on the 8th of October, 1871, and he made an order that an attachment should issue. He, whether right or wrong, must be considered to have determined that it was not barred. A Judge in a suit upon a cause of action is bound to dismiss the suit, or to decree for the Defendant, if it appears that the cause of action is barred by limitation. But if instead of dismissing the suit he decrees for the Plaintiff, his decree is valid, unless reversed upon appeal; and the Defendant cannot, upon an application to execute the decree, set up as an answer that the cause of action was barred by limitation. Suppose the order for attachment of the 8th of October, 1874, had been affirmed on appeal by the High Court, upon the ground that it was not barred by limitation, it is clear that the Judge of the original Court, when the application for a pale of the property attached under it was made, could not have rejected the application upon the ground that the decree was barred on the 5th of September, 1874, or on the 8th of October, 1874, when the order was made, upon the ground that the decree was dead when the petition upon which the order was made was presented. Yet the order when affirmed upon appeal could have no greater binding effect than the order itself so long as it remained unreversed. Here the judgment debtor, so far from appealing against the order for the attachment, acknowledged its validity, and presented the petition of the 25th of January, 1875, by which he prayed that the sale under the attachment might be stayed for three months, and the execution case struck off for the present, with the attachment remaining in force. Upon that petition being presented, the creditor agreed to have the execution stayed in accordance with the petition, " the attachment on the property attached continuing." It appears to their Lordships impossible to hold that, if immediately after the expiration of the three months the execution creditor had made the present application, it could, in the face of the order of the 8th of October, 1874, and the subsequent proceedings, have been reversed, upon the ground that the decree was dead on the 5th of September, 1874, or on the 8th of October, 1874. The present application, having been made within three years after the order of the 8th of October, 1874, is as valid as if it had been made immediately after the expiration of the three months. 10. Their Lordships think it right to observe that, irrespective of the consideration that the order of the 8th of October, 1874, was binding, the decree was not barred on the 22nd of September, 1877, when the application was made. Both of the Courts below have treated the case as governed by the Indian Limitation Act of 1871, Act IX. of that year. But their Lordships are of opinion that the present case does not fall within it. The Act was to come into force on the 1st of July, 1871, but it was enacted by Section 1 that nothing contained in Section 2 or in part ii. should apply to suits instituted before the 1st of April, 1873. By Section 2, and the first schedule referred to therein, Act XIV. of 1859 was with one exception, which does not affect this case, repealed. By Section 4 of the Act, which is part of part ii., it was enacted that, subject to the provisions contained in Sections 5 to 26 inclusive, none of which appear to affect this case, every suit instituted, appeal presented, and application made after the period of limitation prescribed therefor by the second schedule shall be dismissed, although limitation has not been set up as a defence. One of the applications for which a period of limitation is prescribed by the second schedule is an application for the execution of a decree or order of a Civil Court not established by Royal Charter. It appears to their Lordships that a thing which applies to an application in a suit applies to the suit, and that an application for the execution of a decree is an application in the suit in which the decree was obtained, and that as regards suits instituted before the 1st of April, 1873, all applications in them are excluded from the operation of the Act. Nothing therefore contained in Section 2, or in Section 4, or in schedule 2, of the Act extends to an application for the execution of a decree in a suit instituted before the 1st of April, 1873. There are many applications mentioned in schedule 2, and for which a period of limitation is prescribed thereby, which are clearly applications in a suit; such, for instance, as those described in numbers 166, 167, and 164. There are also many enactments which shew that an application for execution of a decree is an application in the suit in which the decree was obtained. For example, by Section 207, Act VIII. of 1859, the application may be made by the pleader in the suit. By Section 212 the application is to contain " the number of the suit." By Section 210, if the enforcement of the decree is applied for against an heir or representative of " an original party to the suit," a certain notice is to be given. By Section 15, Act XXIII. of 1861, the application is to be entered "in the register of the suit," and so forth. 11. The reasons which may be presumed to have induced the Legislature not to apply the new rules of limitation to suits commenced before the 1st day of April, 1873, are of equal force with regard to application for the execution of decrees. 12. It cannot be disputed that in several cases, such as the case reported in 22 Weekly Reporter, Civil Rulings, 155, applications for the execution of decrees in suits instituted before the 1st of April, 1873, have been treated as falling within the provisions of schedule 2 of Act IX. of 1871, but the point was assumed rather than decided. 13. It was scarcely contended in the argument before their Lordships that the application of the 22nd of September, 1877, was barred, if the case is governed by Section 20, Act XIV. of 1859. It was within three years from the date of the service of the notice on the 23rd of September, 1874, which was a proceeding within the meaning of the last-mentioned section; also within three years from the date of the petition of the 8th of October, 1874, and of the order of the same date made thereon. 14. In the face of the applications of the judgment debtor made from time to time to stay the sale of property which had been attached, it cannot be presumed that the decree was ever satisfied, nor was there any finding of either of the Courts below that the several proceedings were not bona fide for the purpose of enforcing the decree or of keeping it in force. It appears from the return of the Amlah of the 12th of November, 1877, that the proceedings under the petition of the 8th of October, 1874, were struck off on the 9th of February, 1875, on account of the decree holders not paying the cost of issuing the notification; but as the sale was stayed on the 25th of January, 1875, for three months upon the application of the judgment debtor, and upon the condition that the attachment should remain in force, the striking off of the case from the Judges'' file on the 9th of February, 1875, did not affect the rights of the decree holders. Their Lordships have alluded to this fact, as reference was made in the argument to the effect of strikings off. 15. For the reasons above stated, their Lordships will humbly recommend Her Majesty to reverse the decrees and orders of both the lower Courts, and to order the Respondent to pay the costs of the Appellants in those Courts, and further to order that the prayer of the petition of the 31st of Bhadro, 1284, corresponding with the 22nd of September, 1877, be granted. 16. The Respondent must pay the costs of this appeal.