Ram Chander vs Shiv Narain and Others

D.K. Mahajan, J.—This is an appeal under Clause 10 of the Letters Patent and is directed against the decision of the learned Single Judge reversing on appeal the decision of the executing Court. The executing Court held that the execution application was barred by time. This view did not find favour with the learned Single Judge who was of the opinion that the execution application was within time by reason of an application dated the 14th of March, 1955, and filed on 16th of March, 1955, for drawing up the decree and for determination of the amount of court-fee payable for the purpose of preparation of the decree.

To appreciate the controversy, it will be proper to briefly set out the relevant facts. A suit was filed by Chandu Lal and Bhagwat Sarup against their co-parceners Ram Chand, Lakhpat Rai and Shiv Narain, for dissolution of partnership and rendition of accounts. A final decree in this suit was passed on the 14th of April, 1952. The operative part of the judgment is as follows:

So, a final decree for Rs. 7,871/7/3 with costs is passed in favour of the plaintiffs and for Rs 2,728/3/- with costs in favour of Shiv Narain, defendant No. 3, against defendants 1 and 2. The liability of Ram Chander defendant 1 is to the extent of Rs. 2,626/11/9 and proportionate costs and of Lakhpat Rai defendant 2 to the extent of Rs 8,572/14/6 and proportionate costs. The decree shall not be drawn up till deficiency in court-fee is made good. File to be retained for 10 days for that purpose.

It seems that the decree-holders took no steps to make good the court-fee for some time and the first step that was taken in this behalf was taken on the 16th of March, 1955, i. e. within three years of the decree. An application was made by defendant 3 and was to this effect that a decree be prepared and it be determined how much court-fee has to be paid for the drawing up of the decree. On this application the Court ordered that the file be summoned. On two occasions, the hearing was adjourned because the file did not reach the Court. The file was received on the 21st of July, 1955, and the Court was of the view that the question of court-fee required determination. On the question of Court-fee, arguments were heard on the 5th of August, 1955, and on that day the Court passed an order that the Court-fee be paid on the amount decreed in favour of defendant 3 and the amount of court-fee was determined at Rs 247/8/-. The defendant was directed to deposit this amount by the 5th of October, 1955. The court-fee was paid by that date and the decree was thereafter prepared. The present application for execution was filed on the 6th of December, 1955. This application is admittedly beyond three years of the date of the judgment but is within three years of the application filed on the 16th of March, 1955. Therefore, the sole question that arose for determination was whether the application of 16th of March, 1955 was step-in-aid of the execution within the meaning of Article 182(5) of the Limitation Act. Article 182(5) of the Limitation Act is in these terms:-

For the execution of a decree or order of any not provided for by article 183 or by section 48 of the Code of Civil Procedure, 1908 Three years; or where a certified copy of the dec-ree or order has been registered, six years. 5. (Where the application next here-inafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step-in-aid of execution of the decree or order."

The executing Court held that this application of 16th of March, 1955 did not amount to a step-in-aid of execution of the decree. This view was not accepted by the learned Single Judge who relied on a decision of this Court in Siri Ram v. Jagan Nath AIR 1957 P&H. 66, with the result that the decision of the executing Court was set aside and the execution application dated 5th of December, 1955, was held to be within limitation. It is against this decision that the present appeal under Clause 10 of the Letters Patent is directed.

As I have already said, the short question that requires determination is whether the application dated 14th of March, 1955, for drawing up the decree and for determination of the amount of court-fee is an application in accordance with law and thus saves limitation as it is a step in aid of execution. The contention of the learned counsel for the appellant is that in view of section 11 which was substituted for the old section 11 in the Court Fees Act in September, 1950, and which amendment was made applicable to Delhi on 31st of March, 1955, no decree could be passed in a suit for accounts unless the court-fee was paid and, therefore, there being no decree when the judgment was announced there could be no question of the application dated I4th of March, 1955, being a step-in-aid of the execution of the decree. This view finds support from the decision of the Patna High Court in Mohammad Sadique Mian Vs. Mahabir Sao, . The learned counsel for the respondent contends that the amended section 11 will not govern the matter. It is stated that the section as it originally stood before the amendment in 1950 will govern the present case. The learned counsel contends that the right to obtain a decree is vested right and it accrues on the day when the suit is filed and any change in law which is not expressly made retrospective will have no effect, and the rights of the parties will still have to be determined in accordance with the law as it stood when the suit was filed. This view finds support from the decision of the Supreme Court in State of Bombay Vs. Supreme General Films Exchange Ltd., In that case the court-fee was enhanced by an amendment which came into operation after the suit had been instituted and the question arose whether in appeal the higher court-fee had to be paid. Their Lordships said that so far as an appeal in the suit filed before the amendment of the Court Fees Act came into being is concerned, the old law will hold the field and the Court-fee on the appeal has to be determined on the basis of the law which existed before the amendment. The ratio was that an appeal is a vested right and no amendment, unless it expressly or by necessary implication, takes away that right, will have any effect. That being so, it must be held that the old provision will apply. According to old section 11, a decree automatically followed the judgment and the payment of court-fee was not a condition precedent for the coming into being of the decree which is the case under the new provision. The only bar was that it could not be executed till the deficient court-fee was made good. Therefore, the application dated the 14th of March, 1955, which was an application to make the decree executable must be held to be an application which is step-in-aid of execution. Similar applications were held to be step-in-aid of execution in (Parambath Parkum Mattole) Kunhammad Hajee and Others Vs. Chathoth Parkum Kozhuvammal and Others, and Raghunath Singh v. Subedar Singh AIR 1939 Oud. 155. We are in respectful agreement with the aforesaid decisions. In this view of the matter, the learned Single Judge was right in coming to the conclusion that the application dated 14th of March, 1955, was an application in accordance with law, which saved limitation under Article 182(5) of the Limitation Act.

For the reasons given above, this appeal must fail. We accordingly dismiss the same with costs.

Shamsher Bahadur, J.

I agree.