Musammat Bibi Hajo and Another vs Har Sahay Lal

Dawson Miller, C.J.—The question for determination in this appeal is whether an application filed on the 7th August 1923, for execution of a decree is barred by limitation. The Munsif found that it was not barred. The Subordinate Judge on appeal found that it was and dismissed the application and the decree holders have preferred a second appeal to this Court. The material facts are as follows: The appellants obtained a rent decree against the respondent on the 2nd April 1917, which was affirmed on appeal on the 12th September 1917. Execution proceedings were first instituted in 1918, but were dismissed. A second application was made on the 23rd May 1919 and certain property of the judgment-debtor was attached and proclaimed for sale on the 15th September 1919. Meantime the judgment-debtor on the 15th April 1918 had instituted a title suit numbered 136 of 1918, in the Court of the Munsif of Bihar against the decree-holders and others impugning the decree-holders title to the land in respect of which the rent decree had been obtained and claiming amongst other reliefs a declaration that the rent decree was null land void. The part of his claim was rejected by the Munsif by his judgment dated the 10th March 1919. An appeal was carried to the Subordinate Judge of Patna and pending the appeal the judgment-debtor obtained an order from the Subordinate Judge in September 1919, granting an injunction restraining the sale in the execution proceedings until the disposal of the appeal then before him. On the 16th September 1919, the Executing Court ordered the sale to be stayed until the disposal of the appeal before the Subordinate Judge in Suit No. 136 of 1918, and on the 13th November 1919, the Executing Court passed an order in these terms: "Let the case be dismissed at present." The Subordinate Judge of Patna delivered his judgment on appeal in Suit No. 136 on the 9th June 1920. He varied the decree of the Munsif in certain respects but affirmed that part of his decision which rejected the prayer for a declaration that the rent-decree was null and void. The effect of his decision was to declare that the judgment-debtor (the plaintiff in that suit) was not liable to pay rent until certain conditions had been fulfilled by the landlords. This decision, however, did not and could not affect the decree-holder''s right to the previous rent payable under the rent-decree pf 1917 which still subsisted and was not declared null and void. The injunction which had been granted restraining the sale in execution pending the hearing of the appeal in Suit No. 136 thereupon automatically came to an end. An appeal from the Subordinate Judge of Patna was preferred to the High Court, but No. further application for an injunction restraining the execution proceedings was made. The High Court''s decision was pronounced on the 18th January 1923, restoring the decree of the Munsif and a further appeal under the Letters Patent was dismissed on the 10th May 1923. The present execution case was instituted on the 7th August 1923 which is more than three years from the date when the previous case was dismissed 7th November 1919 and more than three years from the 9th June 1920 when the injunction restraining execution came to an end. It is, therefore, prima facie time-barred.

The learned Munsif in whose Court the present application was presented was of opinion that the operation of the injunction continued up to the date of the dismissal of the Letters Patent Appeal in the High Court in 1923 and that the present application was not barred, In taking this view I think he was clearly in error. The injunction was for a limited period only and expired at the termination of that period, namely, when the appeal before the Subordinate Judge of Patna was disposed of. No fresh application was made and the injunction was never renewed. He also thought that the effect of the Subordinate Judge''s judgment in Suit No. 136 was to suspend all payment of rents past and future including, the rent covered by the previous decree. In, taking, this view he was again mistaken. The right to recover the rent included in the decree of 1917 could not be challenged, in the subsequent title suit unless the decree itself was declared void, but this part of the claim was rejected throughout and once the injunction automatically terminated on the 9th June 1920, there was no longer any bar restraining the decree-holder from proceeding with his execution.

The Subordinate Judge of Patna before whom the case went on appeal reversed the decision of the Munsif taking the view which I have just expressed. The decree-holders have appealed to this Court from the decision of the Subordinate Judge and contend that the previous execution case was never finally dismissed and is still pending and that there is no limitation for an application to proceed with a case temporarily suspended. They further contend that, it was the Court''s duty to restore the case and call on the parties to proceed as the order of the 13th November 1919 in the previous execution case was not a final dismissal of those proceedings. In my opinion the effect of the order of the 13th November 1919 was to dismiss the execution case then pending with an intimation that an application for renewal might be made if and when, the obstacle should be removed. It was, however, for the parties to move the Court for a re-instatement if so advised. It is never the duty of the Court to initiate any proceedings on behalf of the parties. An application by the decree-holder was necessary to put the law again in motion and even if the present application should be treated as one in continuation of the previous application there must be some limitation for such a proceeding. Assuming that Article 182 of the Limitation Act does not apply, and it does not help the appellants, then Article 181 must, I think, be applicable and the period of limitation is three years from the date when the right to apply accrued. The right accrued in this case on the 9th June 1920, when the injunction was removed and the present application of the 7th August 1923 is time-barred. This view agrees with the decision of Ross and Dass, JJ. in Bhagwan Das Vs. Sheonandan Prasad Sahu, , dated the 17th January 1924, where exactly the same question arose for decision. "It is argued for the respondent" said Ross, J., in that case "that the present application should be treated as a continuation of the previous application. * * * But, in my view, there must be some limitation to the continuation of execution proceedings and the limitation would appear to be imposed by Article 181." I see no reason to differ from the view expressed in that case and in my opinion this appeal should be dismissed with costs.

Mullick, J.

I agree,