Ram Dahin Bahani Prosad Bania and Ram Dain Bahali Prosad Bania Firm vs Raghunandan Nunia and another

Ram Labhaya, Ag. C.J.

This is a second Miscellaneous Appeal from the order of the Additional District Judge, U. A. D., by which the order of the Subordinate Judge of Cachar dismissing the execution application as time-barred, was affirmed. The decree-holder has appealed to this Court.

The facts giving rise to the plea of limitation in this case are as follows. The previous execution case (T. Ex. Case No. 1 of 1949) terminated in an order dated 7-12-1944. The order was in the following terms:

Seen D. J.''s order in Misc. Appeal No, 2 of 1944. The case is old. J. D.''s petition No. 55 for stay of execution till the period of appeal before the High Court. Stay execution till the period of appeal. Case very old. Dismissed.

The application out of which the present appeal arises was put in on 8-1-1949. J. Ds. raised an objection that the application was time-barred. The learned Subordinate Judge was of the view that the previous execution case was dismissed as it was old. Stay of execution for the period allowed for an appeal to the High Court from the order of the District Judge was also granted and assuming that the present application was in continuation of the application of the previous execution case, he held that it was time barred as it had not been shown that the present application was put in within 3 years from the date of the expiry of the period for which execution was stayed. The learned Additional District Judge held that the order dated 7th December 1944 was a final order within the meaning of Art. 182, Limitation Act. It gave a fresh start to the period of limitation. He also found that the execution petition was barred by time though on a different ground.

On behalf of the decree-holder, it is contended that the present application aims at a revival of the previous execution proceeding which was not disposed of by any final order of a judicial character. For such an application, there is no period of limitation and Art. 181 does not apply to it.

The first question that arises in the case is whether the order dated 7th December 1944, which has been reproduced above, can be regarded as a final order within the meaning of the expression ''final'' as used in cl. (5) of Art. 182, Limitation Act. It will appear from the order that the judgment-debtor had applied for the stay of execution against him on the ground that he wanted to appeal to the High Court. The Court allowed stay of the execution till the period of the appeal. The Executing Court was also influenced by the fact that it was an old case. It is obvious that there was no default on the part of the decree-holder. He was not guilty of non-prosecution of the case. There was no determination of any point in the case. The execution was ordered to be stayed in order to enable the judgment-debtor to appeal. The operative part of the order which deals with the reasons for dismissing the petition does not indicate a final disposal of the execution case. It was merely stayed. The adjournment had to be sine die as the period of appeal for which the execution was intended to be stayed had to include the period requisite for obtaining copies which was of an uncertain duration at that stage. The mere use of the word ''dismissed'' at the end would not convert this order into a final order in the sense in which the expression has been used in cl. (5) of Art. 182. In substance, the execution application was meant to be kept in a state of suspended animation. The disposal of the case in these circumstances also had a statistical advantage for the Court as the case, on the description of the learned Judge himself, was very old.

In Kristo Kamini Debt v. Grish Chandra, 39 Cal. W.N. 1030, the sale in execution was stay ed. The attachment was to continue till the disposal of a suit which was pending at the time. The execution case was ordered to be dismissed ''for the present''. This order was not regarded as final. It was treated as suspensory order which had the effect of taking the case out of the list of pending cases for the period that the stay order remained in force. The words ''for the present'' do not appear in the case before us. But it is obvious that the disposal of the execution case on 7th December 1944, was not at all final. In substance even in this case the so called dismissal of the execution case was only for the time that the execution had to remain stayed.

In Yakub Ali V. Durga Prasad, 37 All. 518, an application for execution was made on 1st December 1908 for sale of certain property. The case was sent to the Collector for execution. He discovered that the part of the property sought to be sold belonged to persons other than the judgment-debtor and sent back the case to the Subordinate Judge for orders. The Subordinate Judge called upon the pleader for the decree-holders to make a statement. No statement was made. The application was struck off and the file sent to the record room. The second application for execution was made on 20th December 1913. It was held that it was an application to revive the execution proceeding, which had been suspended and not dismissed.

In Pattannayya Vs. Pattayya Alias Krishnayya Shanbhaga, , the order was that the third item was delivered to the petitioner and the petition was recorded, A temporary injunction prevented delivery of the 2nd item. It was held that the petition was not finally disposed of by this order. It was still pending and a subsequent application was only intended to call the attention of the Executing Court to the effect that the execution application had to be proceeded with.

In Chhattar Singh v. Kamal Singh, 49 All. 276, a Full Bench decision of the Allahabad High Court, it was laid down that where the execution of a decree was suspended through no fault of the decree-holder, he had the right to ask the Court to revive and carry through the execution proceeding which had been suspended by an application put in within three years from the date when the right to apply for revival accrued.

These cases have been relied upon by Mr. Dam. They support his contention. In these cases, the orders were not treated as final. The common feature of these cases was that the proceedings in these cases could not have been regarded as having been terminated so far as the Courts passing the orders were concerned.

The Learned Counsel for the respondents has first relied on Mohammad Taqi Khan Vs. Raja Ram and Others, . It was held in this case that

the question whether an execution case is still pending and has not been terminated must depend on an interpretation of the order passed by the Court and the inference to be drawn as to the Court''s intention. Where the Court intends to dispose of the matter completely and no longer keeps it pending on its file, and does not merely suspend the execution or consign the record to the record room for the time being, the order must be deemed to be a final order, which will give a fresh start for purposes of limitation, and that the proceeding not being pending, there would in such a case be no question of revival.

He has nest relied on a Full Bench case of the Madras High Court reported in P.P.P. Chidambara Nadar Vs. C.P.A. Rama Nadar (deceased) Pichaimani alias Arunachalam by guardian Thillai Ammal as L.R. of the deceased and Others, . In this case, it was held that

an order is final within the meaning of the clause if it terminates the proceeding so far as the Court passing it is concerned. The order need not be one on merits.

In this case, the execution petition was rejected on 18th November 1929. The actual orders in the two cases above referred to were very different from the order now before us. These cases are distinguishable on facts. In AIR 1940 301 (Nagpur) , his 3rd case, an execution application was dismissed for want of prosecution and the order was regarded as final. This case is also distinguishable.

I entirely agree with the view of the law expressed in Mohammad Taqi Khan Vs. Raja Ram and Others, , though the case is distinguishable on facts. No hard and fast rule may be laid down for determining whether an order is final or otherwise, and the question whether an execution is pending or has been terminated by a final order, should depend upon an interpretation of the order and the inference to be drawn as to the Court''s intention. The intention of the learned Judge in this case was to stay the proceeding to enable the judgment-debtor to appeal. Suspension of the execution was the main purpose. The fact that the execution was old, influenced the use of the word ''dismissed'' with an eye to possible statistical advantage. The dismissal of the execution application and the use of the word ''dismissed'' were not justified in law. Authorities seem to be agreed that where an application is stayed or intended to be stayed without any final determination in the proceeding, then notwithstanding that it is struck off or dismissed, it ought to be treated as pending and in suspense and, therefore, capable of revival. In this view, the previous execution case (T. Ex. case No. 1 of 1949) must be treated as pending and in a state of suspended animation, it not having been finally disposed of by a judicial order. The case, therefore, is capable of revival.

Mr. Chaudhuri has also contended that the application is not one for revival; it is an independent application for execution. As held in Chhattar Singh and Another Vs. Kamal Singh and Others , it is the substance, and not the form, of an application which has to be looked into, to determine its nature. If the decree-holder can ask for the revival of the previous proceeding, even an application which on the face of it is one for execution, may be considered as one for revival or continuation of the earlier proceeding. All that is necessary is that when revival or continuation of previous proceeding is sought, the subsequent application must be of the same nature as the previous one. Its character should not be different from the previous one. The relief sought should be the same and against the same person. It is not contended that the present application is different in character from the previous application. The mere fact that it is not stated in express terms that it is an application for revival, should not deprive the decree-holder of his right to have the previous proceeding revived or continued.

This takes us on to the question whether an application for revival is subject to any period of limitation or not. Mr. Dam relying mainly on Kristo Kamini Devi v. Grish Chandra, 39 Cal. W.N. 1030, has contended that an application for revival is not subject to any period of limitation.

Mr. Chaudhuri, on the other side, has, relied on Akshoy Kumar Roy Choudhry Vs. Abdul Kader Khan and Another, ; Lal Pasi and Others Vs. Ramsaran Lal Chowdhry and Others, and Musammat Bibi Hajo and Another Vs. Har Sahay Lal, in support of the contention that even applications for revival are governed by Art. 181, the residuary article, and has urged that the application having been filed more than 3 years after the expiry of the period for which it was stayed, is barred by limitation.

There is acute divergence of judicial opinion on this question. One view which has prevailed in a number of cases is that Art. 181 , which is a residuary article, must govern all applications not provided for elsewhere and an application for revival of an execution proceeding cannot possibly be taken out of its ambit. The other view is that where the execution proceeding is suspended and not finally disposed of, an application for its revival is not of the kind to which the law of limitation should apply. The proceeding is pending. It has got to be disposed of if and when the attention of the Court is drawn to the fact that the proceeding is pending. The act or the application by which the Court''s attention is invited to the pending nature of the proceeding should not be subject to the law of limitation. It is not necessary to examine all the authorities cited at the bar in detail. Itseems to me that recent authorities from the High Courts of Allahabad Bhan Datta Upadhia and Another Vs. Mt. Tulsa Kuer, , Kristo Kamini Debi Vs. Girish Chandra Mondal and Others, , Krishnamachari Vs. Chengalaraya Naidu, , and the AIR 1937 158 (Oudh) are of the view that an application for revival or continuation of an execution proceeding in a state of suspension by reason of its not having been finally disposed of, is not subject to any period of limitation.

I am in respectful agreement with the view taken in these cases. When a proceeding has not been finally disposed of in a judicial manner and has to be treated as pending, the Court will undoubtedly have the power to take notice of it and dispose of it at any time. The bar of limitation cannot apply if the Court acts suo motu. If the proceeding can be revived and disposed of by the Court acting on its motion at any time, it would be anomalous to hold that the Court may not act on the motion of the decree-holder or the person concerned. I am also inclined to the view that Art. 181, even though residuary, should apply only to applications not provided for elsewhere if they are substantive applications for relief. The law of limitation comes in when an aggrieved person first comes to the Court for relief. Article 181 is apart of it and ought to apply only when relief is first claimed by a substantive application. Where the application merely asks for the disposal of a pending proceeding not judicially disposed of, no question of limitation should arise, for, in such a case, the obligation to dispose of the pending proceeding does rest on the Court. In this view of the matter, the application cannot be thrown out on the ground of limitation.

The result is that this appeal is allowed. The orders of the Courts below are set aside. The case shall be remanded to the Court of the Subordinate Judge of Cachar for disposing of the execution proceeding according to law.

Parties shall bear their own costs throughout.

Deka, J.

I agree.