Ramendra Kumar vs Brajamohan

Chatterji, J.—This is an appeal by the decree-holders from an appellate order dismissing their application for execution of a rent decree. The amount of the decree including the cost of execution, does not exceed Rs. 500. It was passed on 9th June 1931. After some previous executions the present application for execution was filed on 7th December 1937. Prima facie, therefore, it was time-barred, being filed more than three years from the date of the decree. The decree-holders relied on certain payments and acknowledgments. The learned Munsif held that the payments and acknowledgments saved limitation. He accordingly ordered the execution to proceed. On appeal, however, the learned District Judge held that the provisions of Sections 19 and 20, Limitation Act, were not applicable to the case, and therefore, he allowed the appeal and dismissed the execution case.

Hence, this appeal by the decree-holders. The decree in question being a rent decree, limitation will be governed by the provisions of the Orissa Tenancy Act. In that Act limitation is dealt with in Chap. 18 which consists of only two sections, namely, Sections 238 and 239. Section 238 (omitting the portion which is not material for our present purpose) runs as follows: (1) The suits, appeals and applications specified in Sob, 3 shall be instituted and made within the time prescribed in that schedule for them respectively; and every such suit or appeal instituted, or application made, after the period of limitation so prescribed, shall be dismissed, although limitation has not been pleaded." Section 239 provides: (1) Sections 6 to 9, Limitation Act, 1908, shall not apply to the suits and applications mentioned in Section 238(2) Subject to the provisions of this Chapter, the provisions of the Limitation Article, 1908, shall apply to all suits, appeals and applications mentioned in Section 238."

3.It is not disputed that the present application for execution will be governed by Article 8, in Schedule 3 of the Act. That Article is in these words:

______________________________________________________________ | | Time from which |period of |Period behins to Description of application |limiaation | run. ________________________________________________________________ 8. For the execution of a |Three years. |(1) The date of the decree or order made in | |decree or order; or suit under this Act or | |(2) where there any enactment repealed | |has been an ap- by this Act, not being a | |peal, the date of decree for a sum of | |the final decree or money exceeding Rs.500, | |order of the ap- exclusive of any interest | |pellate Court; or which may have accrued | |(3) whether there after decree upon the | |has been a review sum decreed but inclu | |of judgment, the sive of the costs of exe | |date of the deci cuting such decree; ex- | |sion passed on the cept where the judgment- | |review, debtor has by fraud or force prevented the exe cution of the decree,in which case the period of limitation shall be gov erned by the provisions of the Indian Limitation Act, 1908. 4. It will be noticed that in this article there is no clause corresponding to Clause (5) of Article 182 of Schedule 1, Limitation Act, which may keep a decree alive for more than three years, provided the first execution is taken out within three years from the date of the decree and each successive application for execution is made within three years from the date of the final order passed on the preceding one. Reading Section 238(1), it would no doubt appear that the present application for execution would be barred under Article 8, Schedule 3. But we have the provision in Section 239(2). The whole controversy centres round the interpretation of this Sub-section.

It is contended by Mr. S.N. Das Gupta for the respondents that the opening words "Subject to the provisions of this chapter" make it clear that this Sub-section must be controlled by Section 238 (1) which expressly says that the suits, appeals and applications specified In Schedule 3 shall be instituted and made within the time prescribed in that Schedule for them respectively. Consequently, it is said, the present execution, not being tiled within the time prescribed in the Schedule, must be held to be time-barred. If this contention were to be accepted the provision of Sub-section (2) of Section 239 would be wholly nugatory, because then there would be no scope or the operation of any of the provisions of the Limitation Act. Section 239(1) also would be redundant, because if by reason of Section 238(1) none of the provisions of the Limitation Act were to apply, there would be no point in providing that Sections 6 to 9 of that Act would not apply. The fact that Section 239(1) specifically makes an exception in regard to these particular sections of the Limitation Act rather suggests that Section 239(2) was intended to make the other general provisions of the Limitation Act applicable. By "general provisions" I mean the sections as opposed to the Schedule of the Limitation Act. It is to be observed that Part II, Limitation Act, headed "Limitation of Suits, Appeals and Applications" consists of Sections 3 to 11, and Part III which consists of Sections 12 to 25 is headed "Computation of Period of Limitation."

The combined effect of the two sections, 238 and 239, Orissa Tenancy Act, seems to be that the period of limitation for any suit, appeal or application specified in Schedule 3 of the Act will have to be determined with reference to the provisions of that Schedule, but in applying or computing the period of limitation therein prescribed, we must look to the general provisions of the Limitation Act, bearing in mind the restrictions imposed by Section 239(1), Tenancy Act. In other words, in determining the period of limitation for the suits, appeals and applications specified in Schedule 3, Orissa Tenancy Act, we must confine ourselves to that Schedule and cannot look to the schedule of the Limitation Act. But where the question is of extension or computation of the period of limitation so determined such question must be determined with reference to the general provisions contained in Parts II and III, Limitation Act, subject to the restrictions imposed by Section 239(1), Orissa Tenancy Act. To take a concrete case, let us consider Section 5 or Section 12, Limitation Act. If Mr. Das Gupta''s contention were correct, then neither of these sections would have any application. But it has never been doubted that these sections apply to appeals under the Orissa Tenancy Act, which, it should be mentioned, has its own provisions for appeal. The applicability of these sections is referable only to the provision of Section 239(2) of the Act. It follows therefore that Sections 19 and 20, Limitation Act, will be equally applicable to cases under the Orissa Tenancy Act.

It is suggested by Mr. Das Gupta that the concluding portion of col. 1 of Article 8 of Schedule 3, Orissa Tenancy Act, which makes an exception in the case where the judgment-debtor has by fraud or force prevented the execution of the decree, implies that the general provisions of the Limitation Act can have no application. The suggestion is that if, by reason of Section 239(2), Orissa Tenancy Act, the general provisions contained in Part III, Limitation Act, were applicable, Section 18 which refers to fraud would necessarily apply, and therefore there was no necessity of importing the provision as to fraud in the concluding portion of col. 1 of Article 8 of Schedule 3, Tenancy Act. But the effect of this concluding portion is that where there has been fraud or force, the period of limitation shall be governed by the provisions of the Limitation Act; in other words, the said Article 8 will have no application but Article 182, Limitation Act, will apply. In such case of fraud, by the combined operation of Section 18 and Article 182 of Schedule 1, Limitation Act, execution may be had, in the first instance, within three years from the date of the knowledge of the fraud, and thereafter, within three years from the date of the final order passed in each preceding execution case. If, however, col. 1 of Article 8 of Schedule 3, Orissa Tenancy Act, were to be read as if the concluding words relating to fraud were not there, the result would be that the period of limitation would be governed by that article, and if there were fraud so as to attract the operation of Section 18, Limitation Act, the decree-holder would have three years, and no more, from the date of the knowledge of fraud, to execute the decree. It is, therefore, clear that the view I have taken as to the interpretation of Section 239(2) of the Act is in no way in conflict with the concluding portion" in col. 1 of Article 8 of Schedule 3, Orissa Tenancy Act.

In several cases of this Court it has been held that Sections 19 and 20, Limitation Act, are applicable to cases under the Bengal Tenancy Act and the Bihar Tenancy Act: see Hasan Imam v. Brahmdeo AIR 1930 Pat. 301, Susil Chandra v. Mian Mohammad AIR 1934 Pat. 198, Lachmi Narain v. Brahmdeo Narain 22 P.L.T. 416 and Jagdeo Singh v. Babu Lal AIR 1941 Pat. 499. The corresponding provisions of the old Bengal Tenancy Act as well as of the Bihar Tenancy Act, that is, Sections 184 and 185, are similar to Sections 238 and 239, Orissa Tenancy Act. In (Moulvi) Wazed Ali Khan Panee and Another Vs. Brojendra Kumar Bandopadhaya and Others, , Rankin C.J., of the Calcutta High Court took the same view, and he followed the decision of this Court in Hasan Imam v. Brahmdeo AIR 1930 Pat. 301 His Lordship also referred to several earlier decisions of the Calcutta High Court. All these authorities support the (view which I have taken.

It may be mentioned that no argument has been advanced before us with reference to Section 29(2), Limitation Act. This section was considered in most of the aforesaid cases. It appears from the judgment of the learned District Judge that he did not apply his mind to the question as to whether the acknowledgments and payments relied upon by the decree-holders satisfy the-requirements of Sections 19 and 20, Limitation Act. The case must, therefore, be remanded to him. If he finds that the acknowledgments and payments do in fact come under Sections 19 and 20, he must dismiss the appeal.

10 I would accordingly set aside the decision of the learned District Judge and remand the case to him for disposal according to law in the light of the observations made above. Costs will abide the result.

Meredith J.

I agree.