Sm. Akshay Kumari Debi and Others vs Nalini Ranjan Mukherjee and Others

Das, J.—This is an appeal by the decree-holder against a decision of our learned brother Chunder, J.

The facts of the case were not fully placed before this Court. We have, therefore, to state those facts in some detail.

On the 23rd March, 1942, the Appellant obtained a decree in the Presidency Court of Small Causes, 4th Court, against Rati Kanta Mukherji for a sum of Appeal.1,127-10-9 pies. It appears from the order-sheet which is on the record that there was an attachment before judgment on the 6th March, 1942, which was confirmed by the Court. On the 18th June, 1942, the attached properties were released from attachment and the order of that date goes on to state that the execution case was dismissed. On some date which it is not possible for us to discover from the records, but prior to June, 1944, the sole judgment-debtor Rati Kanta Mukherji died. He was survived by his widow and four sons, Nalini Ranjan Mukherji, Anil Krishna Mukherji, Ranjit Kumar Mukherji and Sailen Mukherji the latter two being minors. On the 26th June, 1944, the decree-holder made an application which purports to be one for execution of the decree passed on the 23rd March, 1942. In column 9 of the application which is headed as "Mode in which the assistance of the Court is required" the following statement occurs : "I pray that the total amount of Appeal.1,127-10-9 together with interest on the principal sum up to the date of payment and the costs of taking out this execution be realised by attachment and sale of Defendant''s movable property as per annexed list and paid to me. A notice do issue upon Nalini Ranjan Mukherjee of village Nalta, P.O. Maju, District Howarh, to show cause why his name should not be substituted in record in laceof Defendant Rati Kanta Mukherjee now deceased and execution be issued against him and notice be sent under registered cover. Grounds : That Nalini Ranjan Mukherjee is the son, heir and legal representative of the Defendant Rati Kanta Mukherjee now deceased." On the day following the following order was recorded : "On the Plaintiff''s application for substitution of the name of Nalini Ranjan Mukherjee in place of Defendant, deceased, ordered : Issue notice returnable on the 1st August, 1944." The order-sheet shows that the case was adjourned on the 1st August, 1944, 22nd August, 1944, 9th September, 1944, 11th November, 1944, on which date it was adjourned to 2nd December, 1944, when the application was dismissed for default. Sometime thereafter, on the 8th June, 1945, an application on terms similar to that which was filed on the 26th June, 1944, was presented to the Small Causes Court on behalf of the decree-holder. The Court thereupon issued a notice on the 13th June, 1945. The case was adjourned to the 7th July, 1945, 4th August, 1945, and then to the 1st September, 1945.

Meanwhile, on the 25th August, 1945, the following order was recorded : "On the Plaintiffs'' application for substitution of the names of Anil Krishna Mukherjee, Ranjit Kumar Mukherji, Sailen Mukherjee and Mrs. Rati Katna Mukherjee, the minors represented by their mother Mrs. Rati Kanta Mukherjee ordered: Issue notice returnable on the 1st September, 1945." On the 1st September, 1945, it was ordered: "Ordered that the names f the Opposite Parties Anil Krishna Mukherjee, Ranjit Kumar Mukherjee, Sailen Mukherjee, the minors represented by their mother Mrs. Rati Kanta Mukherjee as guardian and Mrs. Rati Kanta Mukherjee, be placed on record as heirs and legal representatives of deceased Defendant. No order is made as to Nalini Ranjan Mukherjee." Nothing further was done till the 1st October, 1945, when the following order is recorded: "On the Plaintiff''s application for substitution of the name of Nalini Ranjan Mukherjee in place of deceased Defendant ordered: Notice do issue returnable on the 24th November, 1945." On the 3rd October, 1945, notice was issued as prayed for. The matter was adjourned on the 24th November, 1945 to the 1st December, 1946, on which date the Court passed the following order: "Application granted: Let the name of the Nalini Ranjan Mukherjee be placed on record as son, heir, legal representative of the Defendant since deceased. Execution to issue." On the 12th December, 1945, an application was made by the decree-holder for transfer of the decree to the Munsif''s Court at Howrah. On the 17th December, 1945, the decree was transferred under Letter No.2736 dated the 20th December, 1945. The execution was thereupon started at Howrah. The judgment-debtors appeared and raised an objection to the effect that the execution of the decree was barred by limitation. The trial Court overruled the objection and directed execution to proceed. On appeal, the first Appellate Court allowed the appeal and dismissed the execution case. Against this order a further appeal was taken to this Court being Appeal from Appellate Order No.197 of 1947. This appeal was heard on the 11th August, 1949, and the appeal was dismissed. It is the propriety of this decision which is now in question before us.

The judgment of this Court proceeds on the following grounds: (1) In case the judgment-debtor dies after the decree and if an execution case is pending at the time, the decree-holder has merely to pray to carry forward the execution case. (2) If no such execution is pending, the decree-holder is required to make an application for execution in terms of Order 21, Rule 11 read with Section 50, C.P.C., if the judgment-debtor was dead within one year of the passing of the decree but if the death took place before one year, a further prayer has to be made under Order 21, Rule 22, C.P.C. As in the present case there was no proper application for execution, the steps taken by the decree-holder were not in accordance with law and did not save limitation. The view of the learned Judge was that there must be an application for execution stated in which a prayer should be made under Order 21, Rule 22, C.P.C. Before we deal with this question it is necessary to refer to a matter which was not placed before the Court. From the facts stated already, it appears that after all the heirs of the deceased judgment-debtor had been placed on the record, the Court made an order directing execution to issue and thereafter transferred the case for execution to Howrah. The heirs of the judgment-debtor who were then on record did not take any steps to have the order set aside. In these circumstances, it was not open to the judgment-debtor to raise the plea of limitation. As was ordered in the case of Gour Chandra Ray v. Janardan Prasad Thakur, AIR (1923) Pat 180 the order directing execution to issue was an order "deciding as between the parties that the execution was not barred by limitation." Such an order has been held to operate res judicata and whether right or wrong, the order cannot be challenged in subsequent proceedings." See also the cases of Promotha Nath Daw v. Habu Mia, 49 APPEAL 260 (1945) and Satyanarain Banerji v. Raja Sri Sri Kalyani Prosad Singh, 49 APPEAL 558 (1945). In this view, no further question arises. But as the matter has been argued at length on other points, we desire to record our opinion on these points.

6.The first point which fell to be decided before our learned brother Chunder, J., was whether when a judgment-debtor dies after the decree at a time when no execution case is pending against him, the proper procedure for the decree-holder is to take out an execution and pray for bringing the legal representatives of the deceased judgment-debtor on record and if the judgment-debtor died more than one year ago to pray for issue of a notice under Order 21, Rule 22, C.P.C. The learned Judge answered the question in the affirmative. The view so taken is supported by the decision in Kuppaswami Chettiar v. Rajagopal Aiyar, ILR (1925) Mad 462 and by some other cases of the Madras High Court. It is also supported by certain observations of Ghose, J., in Amar Krishna Choudhury v. Jagat Bandhu Biswas, ILR 59 Cal 760 at p. 771 (1932) where the learned Judge incidentally observed: "It must be remembered that a step in aid of execution can only be taken in the course of an execution proceeding which is pending or capable of being kept alive and there can be no step in aid of execution when the execution itself is already barred." The above view, however, has not been taken in the cases of Sankara Nainer Pattai v. Thangamma, ILR (1925) Mad 202 , Mathankandi Kannan v. Thayyil Patkuthi Avvulla Haji, ILR (1927) Mad 403 , Chathengali Rarichan v. Puvvamparambath Kunhamu, ILR 57 Mad 808 (1934), Chanayalal v. Punjab National Bank, 111 IC 259 (Lahore), Jagdeo Narain Singh v. Rani Bhubaneswari Kuer, ILR 7 Pat 708 (1927), Gopal Shankar Jahengirdar v. Raising Premi Gotivala, 36 Bom LR 510 and Ramchandra v. Uka, 103 IC 279 (Nagpur). I have not been able to discover a direct Bench decision of this Court on this point. In my view, the latter class of cases which take a more liberal view of Article 182 (5) of the Indian Limitation Act should be accepted. The Article should receive a fair and liberal and not a technical construction so as to enable the decree-holder to reap the fruits of his decree. The view taken in the latter class of cases is also correct on principle. It is well-settled that an application for the transfer of a decree is a step in aid of execution even though no application for execution is pending [Sreenath Chakravarti v. Priyanath Bandopadhay, ILR 58 Cal 832 p. 841 (1931)]. If, therefore an application for transfer of a decree can be regarded as a step in aid of execution even when no execution is pending, there is no conceivable reason why it is necessary that an execution proceeding should be pending when the decree-holder makes an application for the issue of a notice under Order 21, Rule 22 of the Code of Civil Procedure, which step he has to take before he can obtain relief by way of execution. The question whether an application for the issue of notice under Order 21, Rule 22 is a step in aid of execution has been answered in the affirmative in the case of Gopal Chunder Manna v. Gosain Das Kalay, ILR (1902) 25 Cal 594 . Banerjee, J., who was the referring Judge was of opinion that even if the application for execution be defective, regarded as an application for execution of a decree, if the application contained a prayer for issue of a notice under Order 21, Rule 22, the application would still be regarded as one to take some step in aid of execution, in cases where issue of such a notice was necessary, the decree having been passed more than a year before. The view of Banerjee, J., was affirmed by the Full Bench. In a later case, namely, Abdul Aziz Abdulla v. Yakub Abdul Gani, 45 IC 433 (Cal), Chitty, J., was of opinion that even if there was no application for execution, a mere prayer for the issue of a notice under Order 21, Rule 22 is a step in aid of execution. Walmsley, J., agreed in the result but reserved his opinion on his point. Reference may be made to the case of Saday Chandra Jana v. Pares Nath Ghose, 35 CLJ 82 (1921) to which our attention was drawn by Appeal. Ghose appearing for the Appellant. It is necessary to set out the facts of that case : In that case, the decree was obtained on the 2nd December, 1912. An execution was started within three years. Nothing came out of it. On the 2nd May, 1917, a second application for execution was filed. The application for execution was defective in three respects, namely, (1) the date of disposal of the previous application for execution was not correct stated; (2) the sum due under the decree was wrongly calculated and (3) the 10th column which deals with the mode of execution was not duly filled up. It, however, contained the following prayers : (1) for substitution of the heirs of one of the decree-holders; (2) for a notice on the other decree-holders under Order 21 Rule 15 and (3) as one of the judgment-debtors was dead, for the issue of a notice under Order 21, Rule 22. It was contended that the this application for execution did not save limitation. This contention was overruled. Mookerjee, J., observed that an application to take a step in aid of execution in order that it may be in accordance with law must pray for some relief which the Court can grant, and then proceeded to say that the three prayers which were made in the application were such as could be granted by the Court on the application then presented. It was, therefore, held that the application was a step in aid of execution and extended the period of limitation.

Before Chunder, J., reliance was placed on behalf of the judgment-debtors on certain decision of the Bombay High Court, namely, Mahomedbhai Samsuddin Jivaji Raja Vohra Vs. M.A. Dawoodbhai and Co., . The question, however, which arose for decision in that case was as regards the propriety of the application regarded as an application for execution. The application suffered from the defect that the particulars of the property to be attached under Order 21, Rule 54 were not specified. The case was heard by Engineer, J. The learned Judge granted an amendment of the application. Against his decision an appeal was taken under the Letters Patent which was heard by a Division Bench presided over by Beaumont, C.J. In dismissing the appeal it was observed that the amendment was properly made. It was further observed that the application though defective was not a mere nullity merely because the application did not describe the property in detail. Reliance was also placed on the case of Gopal Parsharam v. Damodar Janardan, AIR (2943) Bom 353. The question then before the Court was whether the application which prayed for rateable distribution but not against the same judgment-debtor was one in accordance with law. The question now before us did not arise in that case. Reference was also made to the case of Vallabhdas Narandas Vs. Kantilal G. Parekh, . Our attention was drawn to the observation of Kania, J., to the effect that the prayer for the issue of a notice under Order 21, Rule 22 is not a mode of execution and is not a relief which a party asks for as one awarded by the decree. It is hurdle which the decree-holder has to cross before he can get the relief awarded by the decree. It asks the Court to extend the life of the decree. The observations do not touch the question which are now before us. On the other hand, they support the view that the prayer for the issue of a notice under Order 21, Rule 22 can in certain circumstances be regarded as a step in aid of execution of a decree. The observations were made in connection with a contention then raised that this prayer for issue of a notice under Order 21, Rule 22 was one which came within the purview of Order 21, Rule 11 (j). It was this question which was decided by the learned Judge, the decision being that a prayer for issue of a notice as aforesaid was not a relief which the decree-holder can claim under Order 21, Rule 11 (2) (j). The cases relied on behalf of the judgment-debtor do not, therefore, assist us in deciding the question with which we have to deal.

In the present case, as already stated, the Court did act upon the applications presented on behalf of the decree-holder and the Court directed issue of the requisite notices in the proceedings which were taken by the decree-holder. For the reasons already given, the conclusion follows that the proceedings on which reliance is placed on behalf of the decree-holder must be regarded as steps in aid of execution of the decree within Article 182(5) of the Indian Limitation Act and extended the life of the decree.

Concerning that it is necessary that there should be an application for execution and the step which is relied on by the decree-holder to extend the period of limitation should be taken in such proceedings for execution, before the same can be regarded as a step in aid of execution, we have to consider whether in the facts of the present case the application which was filed by the decree-holder on the 26th June, 1944, was an application for execution of the decree in accordance with law. The meaning of the expression " in accordance with law" has been debated in may cases both here and elsewhere. Appeal. Ghose, appearing for the Appellant, referred us, as already stated, to the case of Saday Chandra Janath v. Pares Nath Ghosh. The observations of Mookerjee, J., are that an application, even though it be deemed so defective as not to be an application for execution, must still be regarded as an application made to the proper Court in accordance with law to take some steps in aid of execution. In a latter case, namely, the case of Pitambar Jana iv. Damodar Guchait, ILR (1926) Cal 664 to which Appeal. Sen appearing for the Respondents drew our attention, the following passage at page 673 is relevant : "The expression '' in accordance with law'' in Article 182 (5) should be taken to mean that the application though defective in some particulars was such upon which execution could be issued. If the omissions were such as to make it impossible for the Court to issue execution upon it, as was the case in Asgar Ali v. Troilokya Nath Ghose, ILR 17 Cal 631 where the list of properties to be attached and sold was not supplied with the application for execution, it should be held that such an application is not in accordance with law." In the same case Page, J., observed as follows on page 678 : "The true view is that where an application for execution is substantial compliance with law is preferred to the Court, such an application will be effectual to stay the progress of limitation whether the Court admits or rejects or returns the application or allows such application to be amended. All the case bearing on the point were reviewed by Sen, J., in the case of Gopal Parsharam v. Damodar Janardan, AIR (2943) Bom 353. At page 358 the following statement of the law is made: "The main test of an application for execution being in accordance with law would appear to be whether it is possible for the Court to issue execution upon it, that is, whether it is within the power of the Court to grant the kind of relief asked for, though in the particular case the relief may not, on the merits, be granted, for example, owing to some finding on facts, not to the nature of the application itself."

Bearing the principles so enunciated, let us see whether the prayers made in the application with which we are concerned, satisfy the test laid down above. In the present case, the mode of execution prayed for was "by attachment and sale of Defendants'' movables as per list." No list of movables was, however, filed. The question is whether such an application for execution is one in accordance with law.

The content of an application for execution is to be found in Order 21, Rule 11 (2), C.P.C., clause (j) which requires the statement of the mode in which the assistance of the Court is required whether (ii) by the attachment and sale, or by the sale without attachment of any property, (i), (iii) to (v) omitted. Rule 12 requires an inventory of movables in cases where the judgment-debtor is not in possession. In such cases, the decree-holder is required by the rule to annex to his application an inventory of his movables with a sufficient description. There is no rule requiring the decree-holder to annex such an inventory of movables when the judgment-debtor is in possession. The provisions in Order 21, Rule 43 and 45 or Order 21A relate to the mode of execution and do not specify the material content of an application for execution. The relevant application cannot, therefore, be said to be a nullity. The application was no doubt a defective one which could have been amended, if necessary, at the appropriate time, that is, after the legal representative had shown cause and further steps in execution were necessary to be taken.

Mr. Sen appearing for the Respondents referred us to the case of Abdul Rafi Khan v. Maula Bux, ILR (1915) All 527 . That case dealt with an application for execution directly coming within Order 21 Rule, 12, C.P.C. It did not decide the point now before us. The case of Birdichand Dhondiram Marwadi Vs. Badesaheb Bahamiya, to which Appeal. Sen referred, merely held that Order 21, Rule 12 did not apply to a case where the decree was obtained against the legal representative of the judgment-debtor. In the present application there is no express statement whether the movables to be attached were in the possession of the judgment-debtor or not. If the movables to be attached were in the possession of the judgment-debtor, there is no rule which requires the decree-holder to specify these movables. It cannot, therefore, be said that present application is so defective as to render it to be a nullity. Under one conceivable circumstances the application would be in compliance with the provisions of Order 21 r, 11 (2) (j). That such an application is a valid application was decided in the case of AIR 1941 152 (Nagpur) .

On all these grounds, my conclusion is that the application filed on the 26th June, 1944, and steps taken by the decree-holder in that application were steps in aid of execution in accordance with law. Limitation was, therefore, saved by these proceedings.

Assuming that the application which was presented on the 26th June, 1944, can be regarded as a step in aid of execution, a further question has got to be considered, namely, whether the steps taken by the decree-holder in those proceedings which were directed against one of the heirs of the deceased judgment-debtor saved limitation as against the rest.

This question was answered in the affirmative in the cases of Ram Anuj Sewak Singh v. Hingu Lal, (1881) ILR 3 All 517 and Krishnaji Janardan v. Murrarnav, ILR (1887) 12 Bom 48 to which our attention was drawn on behalf of the Appellants. The view taken in the above cases have been followed in later decisions. (See Rustomjee''s Law of Limitation, 5th Edition, page 1824 where the cases are collected).

The reasons given in the case of Ram Anuj Sewak Singh v. Hingu Lal, which have been followed in later decisions commend themselves to me and the application which was filed against one of the legal representatives of the deceased judgment-debtor saved limitation as against the other legal representatives of the said deceased judgment-debtor.

My conclusion, therefore, is that the present application for execution is not barred by limitation.

The result, therefore, is that this appeal is allowed. The judgment of this Court as also of the first Appellate Court are set aside and that of the trial Court is restored. The Appellant is entitled to her costs in all Courts. The hearing-fee before us is assessed at three gold mohurs.

Guha, J.

I agree.