Pratapchand and Others vs Lakshman Prasad Gupta

Ramamurthi, J.

(1) This case illustrates the proverbial thorny path of execution which the decreeholder has to pursue before he is able to realise the decree. The

decree in this case was passed by the Sub Court of Arrah in July 1938, and from 1941 onwards the Judgment debtors have been successfully

obstructing the realisation of the decree. It is interesting to mention that in this court in the objection filed in the execution application(vide counter

affidavit of Baijnath Prasad) it is stated the properties sought to be attached within the jurisdiction of this court are worth more than a lakh of

rupees, and the only objection raised is a plea of limitation. A brief reference to the prior history of the proceedings taken in execution of this

decree is necessary for a proper appreciation of the plea of limitation raised.

(2) On 20-7-1938, a money decree was passed by the Sub Court, Arrah, for a sum of Rs. 18,540. This decree was transferred to the Civil

Judge, Allahabad for execution and in that court in E.P. 38 of 1941, there was an order for attachment of a sugar mill of the judgment debtors. As

a result of the order passed by the High Court of Allahabad the execution proceedings were stayed and were revived on 13-5-1950. On 11-7-

1952 the sugar mill was attached and it was sold in public auction on 19-2-1955. On objection raised by the judgment debtors under S. 4 of the

Uttar Pradesh Encumbered Estates Act, the sale of the sugar mill was set aside on 31-5-1955. On 17-3-1956 an application was made for the

transfer of the decree to the Madras High Court for execution as the judgment debtors possessed some immovable properties(buildings) in

Madras and the decree was transmitted to this court for execution on 6-6-1956. On 13-8-1956 the present execution petition E.P. 323 of 1956

was filed in this court.

(3) In the affidavit filed in support of the execution petition is para 5 there is a brief reference to the above said facts, and it was claimed that the

period during which the execution of the decree was prevented by reason of the stay order should be excluded u/s 15 of the Limitation Act is

computing the period of limitation prescribed u/s 48 C.P.C. as the period of 12 years prescribed thereunder expired by 1950. It is necessary to

mention at this stage at the outset that in the counter affidavit filed on behalf of the several respondents the only objection that was raised was

Section 15 of the Limitation Act would not apply and no particulars were given as to why Section 15 would be inapplicable to the case.

(4) The learned Master dismissed the application for execution as barred by limitation. But on appeal, Venkatadri J. reversed that order and

directed execution to proceed in the view that the decreeholder will be entitled to the exclusion of time both under S. 14 and S. 15 of the

Limitation Act. Even though particular reliance was not placed upon Section 14, before the learned Master, this aspect of the matter was argued

before the learned Judge and he upheld the same in the view that all the facts necessary to invoke Section 14 are beyond the controversy, and that

the facts found were sufficient to attract the applicability of S. 14.

(5) Exhibits P. 2, P. 3 and P. 3 (a) are the records of the proceedings on the file of the Civil Judge, Allahabad and a perusal of the same would

show that further proceedings by way of execution in E.P. 31 of 1948 were stayed as a result of the stay order passed by the High Court, and that

it was only in 1950 that the execution proceedings could be revived after the stay was vacated. Ex. B-3 shows there was an order of injunction

passed by the High Court restraining the execution of the Decree. Venkatadri J. followed and applied the decision of a Full Bench of this court in

Kandaswami Pillai Vs. Kannappa Chetty alias Arunachala Chetty, in which it was held that Section 48 C.P.C. is controlled by Section 15 of the

Indian Limitation Act, and that the expression ""prescribed"" in Section 15(1) of the Limitation Act is not restricted to ""prescribed by the I Schedule

to the Act"" and that it would include also a case where a period of limitation was prescribed by any general statute like the CPC and that the

period of 12 years mentioned in Section 48 C.P.C is ""period of limitation prescribed"" within the meaning of Section 15.

(6) In view of this Full Bench decision of this court the only argument that was attempted by learned counsel for the appellants was that the

decreeholder has not placed all the materials to enable him to obtain the benefit of exclusion u/s 15 and that Exs. P. 2, P. 3 and P. 3 (a) are not

sufficient for the purpose. He urged that the decreeholder must furnish further particulars about the precise nature of the stay order, the property to

which it related and the period during which the order of stay was in operation. We are unable to accede to this connection. It must be

remembered that the decree is an old decree of the year 1938, and many of the records would not be available. We agree with Venkatadri J. that

Exs. P. 2, P. 3 and P. 3 (a) contain sufficient particulars to show that there was an order of stay and also an injunction restraining the execution of

the decree for the sale of the sugar mills. There is no evidence that the judgment debtors were possessed of some other properties in Allahabad. It

is in this connection it becomes relevant to notice that in the counter affidavit filed by the respondents it was not stated that Section 15 would not

apply because the judgment debtors had other properties within the jurisdiction of that court. We are satisfied that the materials furnished by the

decreeholders in the instant case are sufficient and entitle them to the benefit of Section 15.

(7) Regarding the point based upon Section 14 of the Limitation Act, the only argument that was advanced by learned counsel for the appellants

was that the Full Bench in Kandaswami Pillai Vs. Kannappa Chetty alias Arunachala Chetty, dealt with only a case u/s 15 and that it would not

apply to Section 14. We see no substance whatsoever in this contention, and we have no hesitation in holding that every portion of the reasoning in

the Full Bench case would apply to Section 14 as well. It must be noted that the point that was referred for consideration by this Full Bench was

the proper interpretation of the expression ""prescribed"" in Section 15 of the Limitation Act, whether it meant ""prescribed in the schedule of the

Limitation Act, whether it meant ''prescribed in the schedule to the Limitation Act"" or ""prescribed in any other enactment"". It is sufficient to refer to

the following observations of Rajamannar C.J. at page 442 (of ILR Mad): (at P. 192 of AIR):

On a careful consideration of the decided cases on the point and the course of legislation, I have arrived at the following conclusions: The

expression ''prescribed'' in Section 15(1) of the Limitation Act does not mean ""prescribed by the first schedule"" to the Act. It would include a case

where a period of limitation is prescribed by any general statute like the Civil Procedure Code. I venture to think further that even if it be

understood in the strictest sense, the period fixed by Section 48 C.P.C. must be deemed to have become a part of the Limitation Act by a process

of incorporation in Art. 181 and 182. Column 1 of Art. 181 speaks of an application for which no period of limitation is provided elsewhere in this

schedule or in Section 48 C.P.C. 1908. Whether the word "" prescribed"" in Section 15(1) would apply to periods of limitations provided by other

statutes or not, it is clearly indicated by Art. 181 that the period fixed by Section 48 is in pair materia with the periods of limitation provided in the

schedule to the Limitation Act. Column 1 of Art. 182 further supports this view. The period of twelve years mentioned in Section 48 C.P.C. is a

period of limitation. The term ''period of limitation'' means the time prescribed by law at the end of which a right ceases to be enforceable in a

court, whether by a suit or application"".

Reference may also be made to the following observations at page 437 (of ILR Mad): (at p. 191 of AIR) with reference to the context in which

learned Chief Justice referred to the decision of the Privy Council in Phoolbas Koonwur v. Lalla Jogeshwar Sahay ILR (1875) Cal 226.

The importance of this decision of the Privy Council appears to me to be this that the rules laid down in the Limitation Act relating to the

computation of the periods of limitation need not necessarily be confined to periods prescribed in the that Act and in proper cases, due regard

being of course had to the language, can be applied to periods of limitation prescribed by other statute of a general nature like the Civil Procedure

Code"".

(8) The same expression ""prescribed"" is used in Section 14 and we cannot conceive of any reason as to why the same principle should not apply

to Section 14. If we may say so the point is simply unarguable in the face of the Full Bench decision which binding upon us.

(9) No argument was advanced touching the bona fides or the good faith with which the earlier proceedings in execution were prosecuted or the

inapplicability of Section 14 for any other reason. We agree with Venkatadri J. that the decreeholder is entitled to exclusion of the period spent in

prosecuting the prior infructuous execution proceedings both u/s 14 and under S. 15.

(10) The result is, the appeal is dismissed with costs and the matter will be further enquired into by the Master as remanded by Venkatadri J.

having regard to the stakes involved and points raised and argued. I fix counsel''s fee at Rs. 1000 both senior and junior.

(11) Appeal dismissed.