Raichand Amulakh vs Gandbi Manekchand Rufehnath

Shah, C.J.—This appeal arises out of proceedings in execution of a money decree of Rs. 100/- obtained by Hie Appellant against the Respondent an far as back alu-7-192 from the Court of the Diwani Nyayadhish of Kunclla Mahal of the former Bhavnaar State. Rs. 250 were received towards the teeree of which. Rs. 100/- were paid on 4-7-1928 in the course of a Darkhast filed in 1928. Execution was taken out; thereafter for the first Urne in 1B45 by Darkhast No, l0 of Samvat year 2001 riled in the Kundia Court, the mode of the assistance of the Court; sought being the arrest of the Respondent.

While that Darkhast was penning, the Bhavanpar State merged with the Saurashtra State in March a and the Darkhast, was thereafter registered on the ille of the Civil Judge. Kundia, aid it is still pending there. The decree-holder'' being desirous of simultaneous execution the decree was transferred, on his application, by the Kundia Court to the Court of the Civil Judge, Bhavnagar, on 8-4-1949, and thereafter the decree-holder filed the Darkhast in the Bhavangar Court; to execute the decree by attachment and save of the property belonging to the firm of . Kamulklal Manekehand, in which name, bee ordering of the decree-holder, the judgment-debtor Ytanekchand was trading.

By an application kestiled along with the Darkhast the decree-holder alleged that the judgment-debtor was living'' in Bulsar since about Samvat year 1985-00 (1929-30 A. D,) with the intent that the decretal dues may not be realised, The execution was resisted by the Respondent on the arid that it was barred u/s 48, CPC Under the CPC of the form Bhavangar State, execution of a decree became barred after the expiration of twenty years from the date of the decree as against twelve year provided for in Section 48 of the Code, and it is admitted that the Darkhast, out of which, this appeal arises, was filed after the expiration of more than twenty years . from the date of the decree.

The first contention urged for the decree-holder in the lower Court was that the present Darkhast was not .a fresh application for execution, but was a continuation of Darkhast No. 108 of Samvat 2001 (1945 A. D.) of the Kundia Court and the latter having been filed within twenty years of the date of the decree, the present Darkhast was not barred by the twenty years'' Rule. This plea was rejected by the lower Court and it 4s revived in appeal.

Now the mode in which the assistance of the Court was required In the first Darkhast was by the arrested detention in prison of the judgment-debtor, whereas the mode of execution now sought is the attachment and sale of the judgment-debtor'' property, and clearly the latter execution process was quite distinct; in its nature from the former one and was in no way connected with it.

This is therefore not a case of pursuing the old mode of execution and the present darkhast cannot be treated as an incidental application to carry on the proceeding already commenced. The present execution is besides filed, after the transfer of the decree, in Anr. Court, and by no retreat''s of reasoning can it be treated as a continuation of execution proceedings in the original

It was held in Mewa Lal v, Ahmed All 13 taf Cas 929 (All) (A) that an application for attachment of property cannot be treated as a continuation of a previous application for narrow, The same principle was accented in Mar v. bind 18 There the drenr holder had applied toy an execution application, filed in January 1888 for the arrest of the judgment-debtor. On 26-2-1888, in consequence of the record of the case being required by the High Court, the Court executing the decree struck on that application suo motu.

On 21-2-1892 the decree-holder again appl''iee1 for execution of the decree, but this time In attachment and sale of the judgment-debtor property. It was held that the second appellation could not be regarded as a continuance I tin former application and execution of the was time-barred, the ratio of the decision that the process of execution in the'' two actions was distinct in its nature and in. unconnected with each other and tickling the latter application could not be regard one in continuation of the former porting.

The question as to what is a fresh application within the meaning of Section 48(1) of the Code was considered in. ''Venkata Lingama '' Venkata Narasimha AIR 1947 Mad 210 (C). In that case, by iv second Darkhast two which were not among the villages include the first Dark hast, we included in the( villages against which execution was sought la villages concerned in the first execution had sold but the execution petition had not been and was still on the file of the Court nothing more had remained to be done that and pending the said proceedings the second execution voccedinu was filed, The question arose whether in such cluum stances the latter application should or could not be regarded as a fresh application for auction. After dealing with the scheme viewed by Order 21, Rule (2)(j) for a CPC , Patanjall Sastrl J., or effect.

It seems to me that, under such a scheme every application; requiring the Court to process against a particular property is a substantive a application for execution, and an application k attachment and sale or for sale without attachment of property(B) , where a previous humiliate application in respect of property: (A) has sue ceded or finite frisks fillip Lal placation far execution and cannot be treaded a one for'' amending., and continuing the prior application although the prayer in the later an placation, may be worded in that manner.

Where no question of limitation arises of course, immaterial how the subsequent application is regarded, but when it is made beyond the period of limitation, its real, character assume; importance and must be determined, paying more regard to the substance of the matter that, to the form or the words used." Applying: these principles the learned Judge held that the subsequent application in that we a fresh application for execution. In. won held that although the former application wets formally pending at the date of the second application all the ''villages therein specified had bean sold and no further relief could be granted on the basis of that petition, and therefore in that sense the said petition must be regarded as no longer pending for the purpose of including by way of amendment new properties sought to be proceeded against. -With respect, I fully corem with this view.

It was also Weld in the above. Madras case that the decree-holder cannot be allowed ii mend the previous execution petition by including fresh properties more than twenty years after in date of the decree, and .that the Court; had no discretion in the matter. Two earlierdecisions of the Madras High Court,'' the first reported in Kumara Venkata Perumal Rajah Bahadur Varu, Rajah of Karvetnagar, by guardian Mr. W.A. Varadachariar Vs. Velayuda Reddi and Others and Saravapalli Subramania Aiyar, , and the second (Bethapudi) Tandavamurti Vs. (Bethapudi) Durgamba and Others, , were there referred to, in which t lie Court had refused to treat an application ''lied by the decree-holder more than twelve years "the decree to proceed against fresh project of (lie1 Judgment-debtor as an application in amend and continue an earlier petition within such period.

Hut there are observations in those eases which support ''to Die view that the Court- might, in special circumstances, allow an amendment and order execution against, new properties even after the expiry of the twelve years'' period. These elscrvalions were held as not stating the correct position and were treated as obiter, and it as observed that it was difficult to see how the Court can have a discretionary power of allowing the decree-holder to proceed against, new items of properties after the expiry of twelve ruts by way of amending a previous petition.

The view taken by the Paina Court in Gajanancl Siva v. Dayanand Thakur AIR 1953 fat x27 (F)is that if the description of the property mentioned in an execution application is -Jefecive, details for its identification can be billed for and allowed. But Anr. property cannot be allowed to lie substituted in place of the one described in the execution petition.

It was also held that where the decree-holder wishes by means of, subsequent application merely to correct the misdescription of the property his application may be regarded as a continuation of I ho original application, but where lie fries to substitute a new property which is lithe different from Die property against which he wishes to proceed originally, the application must be regarded as a fresh application for excitation, and after the period of limitation the decree-holder cannot be allowed to include a. fresh property and to proceed against it.

No doubt there are two rulings of the Bombay High Court ''In re, Janki Prasad AIR Bom 365 (G) and - ''Hanamappa v. Ning-uptia AIR 1948 Bom 11 G (H), where the view fallen is that an amendment may, in certain eases, be allowed even after the expiration of twelve years, but as the facts of the present case relate to an amendment, Die point whether an amendment could or could not be allowed is of academic interest.

At it is on amendment was risked for and in it, could lit if have been asked gloriously basic the former execution application was for die arrest of the judgment-debtor and the latter was for attachment and sale of his property, and snenndly because the former was made In the "Kuadla Court and the latter, in the Bhavnagar Court.

As I said above the process of execution fought in the two execution applications filed by ''the decree-holder being distinct and entirely unconnected with each other, the second application cannot be treated as an application in constitution of the first application, and "being a. ''fresh application" filed after the expiration of I twenty years from the date of the decree it is ''barred u/s 48 (1) of the Code.

The next contention urged for the Appellant is that the order of transfer of the decree by the transferor Court is a judicial order'' and it cannot be questioned by the transferee Court, and that by the said order it must be deemed that the transferor Court held that execute un was in time. The decree "as transferred without issuing a notice to the judgment-debtor, but as to it the decree-holder''s reply was that in that event it was for the judgment-debtor to apply to the transferor Court for a re-hearing or to go in appeal.

Reliance was placed for the Appellant orv Paira Mai v. Mehr Chand'', AIR 19S0 Lah 143 (I) but there the executing Covina had questioned the validity of a transfer certificate on the ground that it should not have, been granted for a part of the decree. It WHS held that the Court executing: transfer decree cannot entertain an objection regarding the legality or propriety of the order directing execution. There is not quarrel with this proposition and the legality or the propriety of the order of transfer is not being questioned in the present close. The bote Lahore case has therefore no application here.

It was held in - ''Narain Das Putt v. Banku Behari Chauopadhya AIR 1925 Cal (J) Hint a transfer of a decree for execution to smother Court does not constitute a reviver even rough it might be with the consent of the judgment-debtor since the transferor Court is net the Court to decide objections on the part of the .judgment-debtor such as that the decree is incapable of execution or that execution is barred by limitation and that such objections are to be determined by the transferee Court.

The first part of this principle was affirmed by the Privy Council in Banku Behari v. Narain Das AIR 1827 PC 73 (K), and it was held that an application for transmission of a decree from the High Court to the District Court is not by itself a revival of the decree within the meaning of the Act inasmuch as it is a mere ministerial act of an officer of the Court and not the judicial act of a Judge.

The Rangoon High Court lias followed Narain Das Dutt and Another Vs. Banku Behari Chattopadhaya and Others, LJ in ''Nachiinal Achi v. S.N. Subramoniam Chetty''. AIR 1928 Hang 40 (L), and has held that an objection as to limitation is to be heard and determined by the transferee Court and not by the transferor Court. It was also held that the order of transmission of" a decree by one Court, to Anr. Court was a ministerial act. The above Rangoon case was followed by the same High Court in - ''Arjnndas v. U Ka Ya AIR 193 1 Rang 71 (M), and if was held that I lie executing Court which a decree was transferred for execution has the jurisdiction to decide whether the application for execution subsequently made to it is barred by limitation or not.

Again in Ktninapoa v. Ishaar Singh AIR 1937 Rang 477 it was held that while the executing Court has no jurisdiction to decide whether the execution of the decree was barren by law by reason of the invalidity of the order of transmission, such Court was not only competent but was bound to consider whether the application for execution made to itself is within time or not.

No doubt it has been held in this case and in AIR 1936 Rang 271 (M) and AIR 1937 Bom 5 (O) that the application made to the transferor Court is a step-in-aid of execution end in that sense is a judicial order, but that point does not arise in the present case because the application for transfer of the decree was itself made more than twenty years after the date of the decree. In - ''Devi Das v. Md. Akbar Khan AIR 10.15 Lah 503 (O), the Lahore High Court has also held that the order transmitting a decree is a ministerial and not a judicial order and such an order can be passed ex parte and the Court passing it has no jurisdiction to decide whether a subsequent application in the transferee Court will be within limitation or not.

The consensus of Judicial opinion thus is that the transferee Court has the jurisdiction to enquire into question of limitation and in fact it is Its duty determine whether the application for execution made of it is within limitation or net. In the present case, the transfer of the decree by the Kundla Court was merely a ministerial order an not a judicial order and it. has not cum considered Hie question of limitation no contention based on the assumption that if was a jucicicl order is therefore altogether without substance.

Finally it was urged that the judgment-debtor has by fraud prevented the execution of the decree within twenty years immediately before the date of the second DarKhast and therefore the execution of the decree is not barred and the decree remains executable by virtue of Section 48 t2i) (a) of the Code. The fraud alleged is that the judgment-debtor was living at Bulsar outside the Bhavnagar State from 1929-30 to 1945, with a view to preventing the executio of the decree and that he had returned to Bhavnagar in about Will This allegation has not been made in the Dark-hast itself, but is made in the application, Ex. 4, billed along with the Dharkhast. Even so, the averment does not go to the extent'' of saying that this conduct of the judgment-debtor amounted to a fraud, and that he had thereby prevented execution of the decree. The judgment-debtor has denied in paragraph 5 of his written statement that he lived at Bulsar since 19"fW30 with the intention of defeating the Plaintiff''s dees and has alleged that he lived outside only for the purpose of his business, and that he used to come to Kundla off and on and lived there for quit3 a long time, and he has urged that for these reasons the decree holder WAS not sititled to exclude the period of his stay at Bulsar.

The judgment-debtor 1 as also stated in paragraph 7 of the objections filed by him in the Kundla Court, in Darkhast No. 10G of 2001 viz., that he was living at Bulsar since many years but the two statements are not inconsistent. There is no evidence that he was living continuously at Bulsar and there is no reason to reject his statement that, he used to come, to Kundla and stay there for quite a long time. ''His stay at Bulsar was for a genuine purpose and by no stretch cf reasoning can it be treated as conduct amounting to fraud. No doubt in considering whether the conduct of the judgment-debtor amounts to fraud or not, the Court ought to take a broad view of the matter, but the mere absence; of judgment-debtor from Kundla cannot by itself amount to fraud. It has not been fihown that he was living there in order to prevent the execution of the Plaintiff''s decree.

In Yarlagadda Venkanna Vs. Ramineni Kotayya, relied upon by Mr. Shah the allegations against the judgment-debtor were that Me had aolrl all his Immovable property to his maternal uncle withm a year of the decree and hat the uncle thereafter filed process after process for about seven or eight vears: against the decree-holder in an endea- vow to prevent his proceeding against the property of tha judgment-debtor, and by this pretended alienation the decree-holder was prevented from executing his decree.

It was on these externe facts that the judgment-debtor''s conduct was held to amount to fraud within the meaning of Section 48(2) (a) of the Code. In - ''Waiehund v. Yeshwan AIR 1949 Bom 325 (Q) it was held that, wliere a. judgment -debtor evades execution by dishonest stiutagem it would be suiiicient to constitute fraud within Section 48. In that case the judgment-debtor had attempted to conceal his property, to deny its ownership and to put-forward u men; ''benamlciur as its real owner, and it was therefore held that his conduct umouiued to fraud ami tin- execution of flic decree being thus privented Articalit was nut barred by limitation J.V. Khairulla v. Beth Dhanrupmul'', (It) again the facts were that the judgment-debtor had evaded arrest- by -contravenes and by dishonest means and had also prevented the attachment of his property by such means and had even made a fictitious transfer of his Immovable property in order to defeat or delay the execution of the decree, and it was therefore held that his conduct amounted to fraud.

The above decisions are based on their peculiar facts and they have no comparison with the present case. The Respondent''s mere absence from Kuni Ua, and his living at Bulsar" for an honest purpose of trade cannot be treated as amounting to fraud. It must be held therefore chat no ground is made cut for excluding time u/s 43(2.) (a) and that the present Daitmast having been tiled alter the expiration of twenty years from the date of the decree, the execution of the decree is barred u/s 48(1) (a) of the Code.

Accordingly I confirm the lower Chief''s order and dismiss this appeal with costs.