Sudhansu Sekhar Singh Deo vs Balabhadra Mahapatra

Sinha, J.—This is a decree-holder''s appeal from the orders passed in execution proceedings by the learned Subordinate Judge of Sambalpur upholding the judgment-debtor''s contention that the decree Under execution was barred by limitation. The facts culminating in this appeal are as follows: The appellant obtained a decree against the judgment-debtor on 19th November 1923, for the sum "of-five thousand nine hundred odd rupees. Execution was taken out the same month and in the same year, which was dismissed on part satisfaction on 2nd May 1925. A second execution, being Execution case No. 50 of 1925, ended on 20th March 1926, with an adjustment between the parties to the effect that the judgment-debtor would pay ten rupees per month in instalments towards the satisfaction of the decree. But, after paying Rs. 70 only, the judgment-debtor made a default with effect from 21st November 1926. The result was the third execution case, No. 32 of 1927, in which the decree-holder sought that the judgment-debtor should be arrested and detained in civil prison for non-payment of the remaining sum out of the decretal dues. But the Court granted a further indulgence to the judgment-debtor by ordering that he should pay the decretal sum by monthly instalments of as. 15 on or before the 15th of every month, in default of any instalment thereby fixed the judgment-debtor being liable to be sent to civil prison. This time, the judgment-debtor was more diligent in carrying out the orders of the Court, and continued paying the 15 Rupees per month, as aforesaid, until 14th July 1937, all these monthly deposits being made in Execution case No. 32 of 1927. On 15th September 1928, the execution case was dismissed on part satisfaction. Ap-parently, this dismissal was a mere routine dismissal, being neither for the default of the ''decree-holder nor on termination of the execution proceedings. On 4th August 1937, the decree-holder obtained an order from the Court, permitting him to withdraw the amounts in deposit till 14th July 1937. On 19th December 1939, the fourth execution case was started in the sense that it was numbered as Execution case No. 89 of 1939, though, in substance, it was an application for continuing the old execution proceedings, that is to say, the Execution Case No. 32 of 1927. In that application, the decree-holder recited all the events, which had happened until the date of the application, and, ultimately, prayed that the judgment-debtor be arrested in terms of the Court''s order dated 5th July 1928, in Miscellaneous case No. 18 of 1928 arising out of Execution case No. 32 of 19 27. When this application was put up before the Court, the office put up a note that apparently the application for execution was barred by limitation, and the decree-holder''s pleader was called upon to explain as to how the application was within time. It appears, then, that on 3rd January 1940, the decree-holder''s pleader made an application in which he recited the history of the previous execution, and then ended the application by the following prayer:

The decree-holder, therefore, prays that your honour would be pleased to pass orders continuing the Execution Case No. 32 of 1927.

On this application, the Court passed an order on 15th January 1940, holding that, prima facie, the application was not time-barred, and that notice under Order 21, Rule 22, Civil P. C, should issue upon the judgment, debtor to show cause why execution should not proceed against him. Now, we come to a stage which has given the most trouble to the parties and to the Court below and to this Court. On 18th January 1940, the decree-holder made a long application, reciting the history of the previous executions and ending with the orders passed in Execution Case No. 32 of 1927. In this application the prayer was as follows:

The decree-holder, therefore, prays that your honour would be pleased to call for Execution Case No. l52 of 1927 of this Court and to pass orders directing the re-arrest and detention of judgment-debtor in civil prison, in default to pay up Rs. 2267-5-6.

Upon that application, the Court passed the following order on 29th January 1940. "The petition is disallowed." It is this order which has been construed by the Court below as having decided that the application for execution, dated 18th January 1940, was not maintainable as being barred by time. On the other hand, it has been contended by Mr. R. K. Ray appearing on behalf of the appellant that this was an order passed on an interlocutory ap-plication for the arrest of the judgment-debtor only.

In Execution Case No. 89 of 1939, the judgment-debtor appeared and filed his objection which was numbered as Miscellaneous Case No. 8 of 1940. The judgment-debtor''s objection was to the effect that the application was time-barred in view of Section 48, Civil P. C. The learned Subordinate Judge, in a very clear order arranged in sequence of events, himself was inclined to take the view that the application of 19th December 1939, which was numbered as Execution Case No. 89 of 1939, was in time, because it was nothing but an application for continuing the Execution Case No. 32 of 1927, though it was an application in form drawn up as a regular fresh application for execution in tabular form, but he took the view that the orders aforesaid passed by the learned Subordinate Judge on 29th January 1940, stood in the way of the application being treated as one in continuation of the Execution case No. 32 of 1927. In this view, in my opinion, the learned Subordinate Judge, has grievously erred. It is apparent that, when the orders dated 29th January 1940, were passed by the learned Subordinate Judge, he was not cognisant of the previous orders passed by him on the order sheet, bearing Execution case No. 89 of 1939. By the orders, already referred to, passed in Execution Case No. 89 of 1939, the learned Subordinate Judge had rightly taken the view that notice should issue on the respondent (judgment-debtor) to show cause why execution should not proceed. Apparently, the orders of 15th January 1940, passed in this case, and the orders of 29th January 1940, passed on the decree-holder''s application bearing date 18th January 1940, are inconsistent. But, viewed in the proper light, in my opinion, there is no real inconsistency. The orders passed in Execution Case No. 89 of 1939 were orders passed on the main application for the execution of the decree, the prayer being, as already indicated, that this should be treated as in continuation of the Execution Case No. 32 of 1927. On the, other hand, the orders dated 29th January 1940, were orders simply refusing the decree-holder''s prayer for re-arrest of the judgment-debtor pending the disposal of the main application for execution on merits. Naturally, the Court decided that, so long as the question of limitation had not been decided on merits, the judgment-debtor could not be arrested by way of an interlocutory order. That is the only way in which the two orders, apparently inconsistent, can be reconciled. That being so, the only difficulty in treating the application of 19th December 1939, as one in continuation of the Execution Case No. 32 of 1927 disappears. There is admittedly no other difficulty in the way of treating that application merely as one in continuation of the previous execution case, aforesaid. It is true that the application of 19th December 1939 is in form a fresh application for execution, but in substance, it is an application merely to continue the previous execution case. This conclusion is in consonance with the decision of their Lordships of the Judicial Committee of the Privy Council in AIR 1939 80 (Privy Council) . There also not one but several applications had been filed in tabular form, purporting to be fresh applications for execution; but their Lordships took the view that, in substance, those were applications merely to continue the previous execution case which, in the eye of law, must be treated as pending, though the records of that case had been consigned to the record-room for conveniences of disposal. In my opinion, there is no real difference between the legal position as disclosed by the evidence in this case and the case before their Lordships of the Judicial Committee. It must be held, therefore, that the application of 19th December 1989, was merely an application for continue the previous Execution Case No. 32 of 1927, which must be deemed to have been pending all the time, because the judgment-debtor had been busy paying the monthly instalments of Rs. 15 until he made a default on 14th July 1937. The only ground on which the learned Subordinate Judge has decided against the decree-holder-appellant being held to be erroneous, it follows that the application for execution is within time, and should proceed in accordance with law.

The result is that the appeal is allowed, and the orders of the Court below set aside. But, in view of the faulty nature of the paper book prepared by the appellant, as also in view of fact that the decree-holder''s pleader was responsible for creating confusion in the Court below, there will be no orders as to costs here or in the Court below.

Das, J.

I agree.