Pandit Rameshivendra Narayan Ojha and others vs Babu Awadh Behari Saran

Das, J.—This appeal is directed against an order of the learned District Judge of Shahabad by which he dismissed an application for execution on the ground that it was barred by limitation. The material facts are these:-

The appellants obtained a mortgage-decree against the respondent, but it appears that the mortgaged properties had been sold at a revenue sale before the decree was pronounced in the mortgage action. The decree in effect provided that the appellants should proceed against the surplus sale-proceeds in the hands of the Collector. On the 8th of February, 1917 the appellants presented an application for execution of the decree. That application was allowed by the Court below but on appeal to this Court the order of the lower appellate Court was set aside and the appellants were asked to proceed in a particular way by this Court. The present application was then presented for execution on the 22nd January 1921, and the only material question which arises for our consideration is whether the present application is barred by limitation.

It is conceded by Mr. Kulwant Sahay, who appears on behalf of the decree-holders-appellants, that, unless the present application can be regarded as a continuation of the previous application, it must fail. It is necessary, then, to consider what exactly the appellants asked the Executing Court to do by their application which they presented on the 8th of February, 1917, and what they have asked the Executing Court to do in the present application.

It will be remembered that the decree was a mortgage-decree, though, in the circumstances which happened, the decree-holders could only proceed against the surplus sale-proceeds in the hands of the Collector. It appears that before they made their application of the 8th February 1917 they made an effort to withdraw the surplus sale-proceeds from the Collectorate; but they were told that the surplus sale-proceeds had already been withdrawn by the judgment-debtors. In their application of the 8th of February, 1917, they recited all the material facts and then asked for the following relief:-

It is, therefore, prayed that this execution case may be registered and first a Zaidsal notice may be issued and then properties of the judgment-debtor, as given in the under-mentioned inventory, may be attached and sold, and the entire decretal amount with costs and interest of this execution case, as may be found due on an account being made in the office, may be realized.

The judgment-debtor seems to have raised the question whether he had in fact withdrawn the money from the Collectorate. It seems to have been his case that that money was not withdrawn by him but by his wife. That was a question which the Court below had to determine in the application of the 8th of February 1917. The lower appellate Court thought that it was unnecessary for it to determine whether the money had in fact been withdrawn by the judgment-debtor or not, and it directed that execution should proceed. The order of the lower Appellate Court, therefore, amounted to this, that the properties of the judgment-debtor, as given in the inventory attached to the application of the 8th of February 1917, should be attached and sold in due course of law. That was the effect of the order of the Court on the application of the 8th of February, 1917. As I have stated before, the judgment-debtor appealed to this Court and this Court came to the conclusion that the application in the form in which it was presented to the Court could not be entertained by the Court. This Court pointed out that primarily, the only decree under execution was the decree under O. 34 R. 4, and that execution could only be taken out against the mortgaged property or against the sum lying in the Collectorate as representing the mortgaged property, and that before any other property could be pursued, an order under O. 34, R. 6 was necessary. This Court thought that a decision on the question as to who had withdrawn the surplus sale-proceeds from the Collectorate was absolutely necessary, and that if the Court in deciding that question came to the conclusion that the money had been withdrawn by the judgment-debtor, it was necessary to make an order upon him to bring that money into Court before a decree under O. 34 R. 6 could be passed against him.

The learned Judges in delivering the judgment of the Court said this:-

We note that the former decree-holder is dead and that a fresh application will be required for proceeding with the execution of the decree. In dealing with the fresh application the Court below will have regard to our remarks upon the question of the liability of the parties.

The decision of this Court then was this, that the application, in the form in which it was presented by the appellants to the Court, was not maintainable; that it was necessary for them first to establish that the money had in fact been withdrawn by the judgment-debtor and to obtain an order to the effect that the judgment-debtor do bring the money withdrawn by him into Court. On his failure to do so, the decree-holders might then be entitled to a decree under O. XXXIV, R. 6 and to a sale of such of the properties of the judgment-debtor as were not comprised in the mortgage.

The High Court pronounced its order on the 29th of October 1918 and the present application was presented to the Court on the 22nd of January 1921. By their application presented on the 23rd of January 1921 the decree-holders asked for issue of notice under O. XXI, R. 22 and then "by issue of notice of warrant of arrest the entire decretal amount with costs and interest as per account prepared by the Court and as set out below may be awarded." This application was then an application for arrest and detention in prison of the judgment-debtor; and we have been invited by Mr. Kulwant Sahay to hold that this application must and ought to be regarded as a continuation of the application of the 8th of February 1917.

In my opinion, it is impossible to regard the present application as a continuation of the previous application. Now, it is well-established that an application can only be considered as a continuation of the previous application, when, to quote the words of Mr. Justice Jwala Prasad, in the recent case of Kesho Proshad Singh v. Harbans Lal [1920] 2 P.L.T. 22: 53 I.C. 85, it is similar in scope and character to the former application. Now, the former application asked the Court, in form and in substance, to sell the properties of the judgment-debtor other than those which were comprised in the mortgage-bond; the present application, in form and in substance, asked the Court to realise the money from the judgment-debtor by his arrest and detention in prison. It is quite impossible, in my opinion, to regard the present application as a continuation of the previous application. Mr. Kulwant Sahay, however, urges before us, that the fact that the decree obtained by. him in this case was a mortgage-decree makes some difference to the case. I am unable to agree with the very ingenious argument that was advanced before us by Mr. Kulwant Sahay. Then, there is another serious objection, and it is this: that if we regard this application as a continuation of the previous application, then it is the previous application which must be considered on its merits. Now, that application could never be entertained by the Court, because the decree-holders, without exhausting their remedies under the decree, asked for sale of properties other than those comprised in the mortgage-bond. The decree-holders have not yet asked the Court to compel the judgment debtor to bring into Court the money, which, according to their allegations, the judgment-debtor had withdrawn from the Collectorate. As was pointed out by this Court, that was the only application which they could have made. In my opinion, it will not assist the decree-holders if we treat the present application as a continuation of the previous application. The question was not argued before the learned Judge in the Court below, but the Court of first instance considered the question and decided it against the decree-holders. In my opinion, the order of the Courts below is right and must be confirmed.

This order will govern Miscellaneous Appeal No. 133 of 1922.

Adami, J.

I agree.