Shiva Narayan Lal Chaudhury and Another vs Narayan Prasad

Dawson Miller, C.J.—This is an appeal on behalf of the judgment-debtors in execution proceedings from an order of the Subordinate Judge of Patina, dated the 4th February last rejecting their application to dismiss the execution case on the ground that it was barred by limitation.

The decree which is the subject of execution in the case was obtained on the 22nd July, 1910, by the predecessors in interest of the present decree-holder against the predecessors of the judgment-debtors. Various unsuccessful attempts to execute the decree took place up to the year 1917. In that year fresh execution proceedings were instituted, and on the 23rd May, 1917, notice was served on the judgment-debtors but the case was dismissed for default on the 17th August following. The next attempt to executa took place on the 23rd August, 1920, the case being numbered 668 of 1920 and notice wa9 served under Order 21, Rule 22 of the CPC on the guardian ad litem of the judgment-debtors who were minors This application was admittedly out of time having been filed more than three years from the date of any application made in the previous execution proceedings which had terminated on the 17th August, 1917. Apart from issuing notice on the guardian ad litem and ordering, on his application, his fee to be deposited, nothing more was done in execution case No. 668 of 1920 and the 20th November, 1920, it was dismissed for default in paying the guardian''s fee. Unless it can be said that the issue of a notice under Order 21v Rule 22 or the order to pay the guardians''s fee amounts to an adjudication that the petition was not time-barred then there is nothing from which a presumption cap arise that the Court considered or determined the question of limitation in that case.

On the 21st July, 1922, the last execution, out of which this appeal arises, was filed just within the limitation period of 12 years from the date of the decree, but well within three years of the previous application of 1920. It was numbered 900 of 1922. In this application the judgment-debtors were sued in their own name as if sui juris, and not through a guardian ad litem although they had not attained majority. They did not appear in answer to the summons and their property which was attached was sold on the 16th January,, 1923. Shortly afterwards, and before confirmation of the sale, they applied through a guardian or next friend to set aside both the sale and the execution proceedings under Order 21, Rule 90 and Section 47 of the Civil Procedure Code. The learned Subordinate Judge is in error in stating that the application was merely to set aside the sale. The petition set out various grounds both for seating aside the sale and for dismissing the execution proceedings. Amongst other grounds they contended (1) that being minors they were not properly brought on the record unless sued through a guardian, and (2) that the execution was barred by limitation as the previous execution case numbered 668 of 1920 was itself time-barred.

The learned Munsif, before whom the case came originally, held on the question of limitation that the judgment-debtors, having failed to raise the question of limitation in the previous case, could not be allowed in subsequent proceedings to contend that it was time-barred. On the question of non-representation he considered that this was a vitil defeat to the sale and set it aside. He, however, did not dismiss the execution case but directed the proceedings to continue allowing the decree-holder to apply for a fresh sale after taking proper steps to bring the guardian of the minors upon the record.

The judgment-debtors appealed to the Subordinate Judge from that part of the Munsif''s order which refused to dismiss the execution case on the ground of limitation and contended inter alia that the petition was time-barred and prayed that the execution case should be dismissed with costs.

The learned Subordinate Judge treating the case as an appeal from an order under Order 21, Rule 90 held that no appeal lay and dismissed it. It is true that if, and in so far as, it was an appeal under Order 21, Rule 90 no appeal lay, because the application under that order had been granted and the" sale had been set aside. There could therefore be no appeal from the order setting aside the sale which was in the appellants'' favour. But the learned Judge, it would appear, failed to appreciate what the real nature of the appeal was. The only prayer in the memorandum of appeal was that the execution case should be dismissed and, although the effect of granting such a prayer might be to annul the sale, nevertheless the appeal was in form and in substance an appeal only from that part of the order which refused to dismiss the execution case on the ground of limitation. The learned Subordinate Judge having held that the appeal could not be entertained proceeded nevertheless, very properly, to consider the question of limitation and dealt with the orders that had been passed in the previous execution case numbered 668 of 1920 which had terminated by dismissal for default on the 20th November that year. It appears that the guardian ad litem in that case, on being served, had applied to the Court to order the decree-holder to deposit the guardian''s fee and the order was granted, but as the fee was not deposited after an extension of time had been granted for the purpose the case was ultimately dismissed for default. Nothing else happened in those proceedings. The learned Subordinate Judge took the view that the order made to deposit the guardian''s fee was tantamount to an adjudication that the decree-holder was entitled to execute his decree and had impliedly decided that the execution was not time-barred. He therefore held that the question could not be reopened in subsequent proceedings in execution. With respect to the learned Judge, I think his decision cannot be supported on either of the grounds upon which he determined the appeal.

The question whether or not the execution was time-barred was in my opinion, a question-within Section 47 of the CPC arising between the parties and relating to the execution of the decree and therefore a decree as defined in Section 2. Had the question been determined in the executing Court adversely to the decree-holder his fight would have been finally determined and an appeal would clearly have laid to the Subordinate Judge. It was decided, however, that his right to execute still subsisted. This was, in my opinion, just as much the determination of a question within Section 47 as if the contrary view had been taken and the case dismissed. It is true that every order made in proceedings u/s 47 is not appealable. For example orders dealing with mere matters of procedure such as those directing the production of documents or the summoning of witnesses, although in a wide sense they may be said to be orders relating to the execution, car hardly be said to be in the words of Section 2 the determination of any question within Section 47. The questions for determination there referred to must be those which the parties are asking the Court to decide as to their rights or liabilities, and not merely interlocutory questions of procedure which incidentally arise for determination in the course of the proceedings. When the rights or liabilities of the parties as to the execution, discharge or satisfaction of the decree are determined by the order, then, in my opinion, the order is appeasable as a decree within the definition in Section 2. A test for determining this question was laid down by Banerji, J., in Jogodishury Debea v. Kailas Chandra Lahiry (1897) 24 Cal. 725, a test which seems to me, whilst not exhaustive, for afford in many cases a good working rule. The learned Judge says: "The language of Section 244 which enacts that certain questions shall be determined by an order of the Court executing the decree and not, by separate suit clearly indicates that the questions contemplated by the Section must be of a nature such that it is possible to suppose that, but for the section, they could have formed the subject of determination by a separate suit."

The determination by the executing Court of a question arising between the parties within the meaning of Section 47 and which, but for that section, might have been the subject of a separate suit would I think clearly amount to a decree within the definition of Section 2. I consider, however, that the test suggested by Banerji, J., is not exhaustive, for I aprehend that there may be questions within the purview of Section 47 which could hardly be the subject of a separate suit bat which nevertheless might be proper questions for determination in the execution of a decree passed in a suit already decided. Two other learned Judges of the same High Court (Hill and Harrington, JJ.) in the later case of Ramassur Prashad Narain Singh v. Rai Sham Krissen 8 C.W.N. 257 would appear also to have felt the difficulty of accepting the dictum of Banerji, J., as exhaustive, for after referring to the test suggested by him in the former case they add: "But however that may be it appears to us that when the effect of an order is to determine the rights of the parties with respect to a matter material to the due execution of the decree there is an appeal." Whether the test laid down in Rajah Ramessur Prasad Narain Singh v. Rai Sham Krissen 8 C.W.N. 257 was rightly applied in that case is not material for present purposes. The tests applied in these two oases when taken together indicate, in my opinion, the principles which should govern the Court in deciding Whether an order passed in execution is a decree within the meaning of Section 2 and as such appeasable. Judged by these principles I think the order passed in the present case which determined that the right of the decree-holder and the liability of the judgment-debtors were still subsisting and not barred by lapse of time was the determination of a question within Section 47 of the Code and as such appealable.

It remains to consider whether the decision was right in deciding that the application was not time-barred. The test in such cases appears to be whether the question of limitation has been decided in the previous proceedings. It is the duty of the Court, if it considers that the application is time-barred, to dismiss it, but this duty does not arise at the moment the application for execution is presented, nor does an order directing service of notice to issue, in my opinion, amount to any adjudication upon the merits of the case. Until the parties are properly brought before the Court or, after having been served, they fail to appear there is no duty upon the Court to determine any of the questions which may arise. In the present instance the judgment-debtors in the proceedings in 1920 would have been entitled to appear and contest the validity of the application on the ground that it was barred by limitation notwithstanding the fact that an order had already been passed directing the guardian''s fee to be paid. The learned Subordinate Judge considered that this order was tantamount to a decision that the application was not time-barred. If he is right, then that question having been decided by the issue of the order, it would no longer be open to the judgment-debtors through their guardian to contend, even had the fee been paid, that the petition was barred by limitation. This would lead to such a startling result that I find m myself quite unable to accept the view of the learned Subordinate Judge. I am quite prepared to concede, which is in fact the result of the decision of the Judicial Committee in Mungul Pershad Dichit v. Grija Kant Lahiri (1882) 8 Cal. 51 that it is not necessary that a direct adjudication upon the question of limitation should have been pronounced. It is sufficient if an order has been passed indicating that in the opinion of the Court the case is a fit one in which to order execution, as for example where an attachment of the property has been directed, but until the parties are properly brought before the Court or until having been served they have failed to appear it is not competent to the Court to deal with the questions between the parties concerning which it may be asked to adjudicate and the mere fact that the decree-holder has been ordered to pay the fee of the guardian who represents the minor judgment-debtors cannot be regarded as an adjudication upon any question arising between the parties. Up to the time when the petition was dismissed for default in payment of the guardian''s fee there was, in my opinion, no question before the Court at all relating to the matters in dispute between the parties, still less was there any adjudication either directly or by implication that the case was a fit one to proceed and not barred by limitation. Until the guardian''s fee was paid and a date fixed for the further hearing of the application the judgment-debtors were not bound to present their case to the Court, and up to that time at least they Would be entitled, on appearing, to take any objection that might be open to them in Opposition to the petition including the objection of limitation. It cannot therefore, in my opinion, be successfully contended that this question had been determined before the judgment-debtors had any opportunity of putting forward the objection merely because an order had been passed by the Court directing the guardian''s fee to be paid.

In my opinion the execution case out of which this appeal arises was barred by limitation and should be dismissed. The result will be that all farther proceedings in the execution case will be set aside and the proceedings stayed except in so far as it may be necessary to deal with the question of costs arising therein. The appellants are entitled to their costs of this appeal and of the proceedings in both the lower Courts.

Foster, J.

I agree.