Thakarshi Jaichand Shah and Others vs Woman Pralhad Kulkarni

J. Dixit, J.—This is an appeal under the Letter Patent from a decision of Gajendragadkar J.

There was at Nandurbar a firm of the name of Maganlal Natbabhai Oil Mill. The firm was composed of two partners, namely, Jayachand Somchand and Maganlal Nathabhai. In 1934 Jayachand Somchand filed against Maganlal Natbabhai a Suit No. 460 of 1934 for dissolution of the partnership and in the course of that suit a receiver was appointed. In 1935, the receiver appointed in Suit No. 460 of 1934 filed against a company called Jayachand Somchand Ginning Company a Suit No. 199 of 1985 to recover a sum of Rs. 6,600. The suit was filed against two persons, i.e., against Jayachand Somchand Vani as defendant 1 and Padamsi Jasraj Vani as defendant 2. On 23rd September 1937, a consent decree was passed in favour of the plaintiff for a sum of Rs. 6,475 and it was made payable in two sums of money, i.e., a sum of Rs. 3,825 to be paid by defendant 1 and a sum of Rs. 2,650 to be paid by the defendant Ginning Company.

On 6th April 1938, the receiver filed an execution application no. 565 of 1938 to execute the decree and on 16th August 1939, the executing Court made an order in favour of the plaintiff directing sale of certain property. From that decree an appeal was filed in this Court by the defendant and this Court by its judgment dated 28th July 1941, allowed the defendant''s appeal and dismissed the darkhast. The decision went principally upon the question whether leave of the Court was necessary under Order 30, Rule 9, Civil P. C., and Wassoodew J. held that absence of leave struck at the root of the matter, and that is how the Court ordered the darkhast to be dismissed.

On 9th December 1941, the plaintiff decree-holder filed the present application for execution, namely No. 1306 of 1941, and in these execution proceedings, the plaintiff obtained leave as required by Order 30, Rule 9, Civil P. C. The judgment-debtor contended that the application for execution was barred by the law of limitation and the executing Court having accepted that contention dismissed the darkhast, From that order the plaintiff preferred an appeal in this Court and Gajendragadkar J. by his judgment dated 13th November 1946, allowed the plaintiff''s appeal holding that the darkhast was in time. He, therefore directed the darkhast to be dealt with according to law. From that order the heirs of judgment-debtor 1 have preferred this letters patent appeal.

On this appeal, Mr. Thakore for the appellants contends that the darkhast No. 1306 of 1941 is barred by the law of limitation. The determination of this question depends upon the answer to another question which is whether the previous application for execution, namely darkhast No. 665 of 1938, was an application in accordance with law. Reliance is placed upon the provisions of Order 30, Rule 9, Civil P. C. The rate provides that:

"This order shall apply to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners in common ; bat no execution shall be issued in such suits except by leave of the Court, and, on an application for leave to issue such execution all such accounts and Inquiries may be directed to be taken and made and directions given as ma; be just."

Mr. Thakore''s contention is that the obtaining of leave as required by the rule is a condition precedent to the issuing of execution, and that since no leave of the Court was admittedly obtained in the previous execution proceedings, that application cannot be said to be one in accordance with law. The question whether a particular application is one in accordance with law or not must depend upon the facts of each case and it would seem that that question is not always easy to decide. Their Lordships of the Privy Council in the case reported in Govind Prasad v. Pawankumar, 46 Bom. L. R. 306 : A. I. R. 1948 P. C. 98, have laid down the following test (p. 809): "It is well settled that the words in accordance with law mean in accordance with the law relating to the execution of the decree." Gajendragadkar J. relied in support of the view which he took principally upon a decision of this Court reported in Sadashiv v. Narsingrao, 17 Bom. L. R. 203 : AIR 1915 Bom. 46. It was held in that case that the application for execution was ''''in accordance with law" within the meaning of Art. 182, Limitation Act, even though it was not accompanied by the conciliator''s certificate as required by Section 47, Dekkhan Agriculturists'' Relief Act. A reference to Section 47, Dekkhan Agriculturists'' Relief Act shows that the bar imposed by Section 47 is absolute, because the section provides that :

"No suit, and no application for execution of a decree passed before the date on which this Act comes into force, to which any agriculturist residing within any local area for which a Conciliator has been appointed is a party, shall be entertained by any civil Court unless the plaintiff produces a certificate in reference thereto obtained by him u/s 46 within the year immediately preceding."

It follows from this decision that even though an application for execution is filed and the, same is not accompanied by a certificate as required by the section, the application is nevertheless one in accordance with law. The test laid down in a later case of this Court does not seem to be as favourable as is laid down in the case just cited, e. g., the test laid down in Gopal Parsharam Namjoshi Vs. Damodar Janardan Bhagwat, :

". . . .the main test of an application for execution being in accordance with law would appear to be whether it is possible (or the Court to issue execution upon it i. e., 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, e. g., owing to some finding on facts, not to the nature of the application itself."

It will be observed that this case follows a decision of the Calcutta High Court in Pitambar Jana Vs. Damodar Gachait and Others, . For the sake of convenience reference may also be made to another decision of this Court reported in Shankar Hari v. Damodar Vyankaji, 47 Bom. L. R. 104: AIR 1946 Bom. 380. The test laid down in that case is, in the words of the headnote, as follows :

"The expression ''in accordance with law'' in Art. 182 (5) of the first schedule to the Indian Limitation Act, 1908, does not imply that the application must be successful. It may be in accordance with law for the purpose of that article and yet the applicant may not be entitled to any relief on account of circumstances other than there being any defect in the application itself. Where, therefore notices required by the proviso to Order 21, Rule. 16, Civil P. C., are not given to the decree-holder and the judgment-debtors, the application for execution does not thereby cease to be in accordance with law."

A good deal of case law has centred upon the proper meaning to be given to the expression "in accordance with law," and in the present case Mr. Thakor for the appellants has contended that in this case the application for execution, namely, No. 565 of 1938, cannot be said to be one in accordance with law, because leave of the Court as required by Rule 9 of Order 30, Civil P. C., was not obtained, and since the obtaining of the Court''s leave is a condition precedent to the issuing of the execution, that application cannot be said to be in accordance with law. If the interpretation placed upon the words "in accordance with law" in Sadashiv v. Narsingrao 17 Bom. L. R. 203 A. I. R. 1916 Bom 46, is correct, then it is obvious that Mr. Thakor''s contention is not well founded. If, on the other hand, the test laid down in Gopal Parsharam Namjoshi Vs. Damodar Janardan Bhagwat, , following the Calcutta decision, is correct, there is a good deal to be said in favour of the contention. As there is no direct case deciding this point with reference to Order 30, Rule 9, Civil P C , it is desirable that this question should be determined by a larger bench. We, therefore, frame the question for determination by a Full Bench and that question is this:

"Whether the application for execution, i. e. Darkhast No. 565 of 1939, is an application in accordance With law?"

We also direct that the case papers, may be laid before the learned Chief Justice in-order to enable him to constitute a full bench for the determination of the question above referred to.

JUDGMENT OF FULL BENCH.

Chagla, C.J.

The question we have to consider in this Full Bench is whether a certain darkhast was in accordance with law within the meaning of Art. 182, Limitation Act.

The decree that was sought to be executed was passed on 23rd September 1987, and that decree was passed in a suit filed by a receiver on behalf of a firm against another firm. In these two firms, there was & common partner. On 5th April 1938, an application for execution was made by darkhast no. 665 of 1938 and the executing Court made an order in favour of the plaintiff directing sale of certain property belonging to the defendants. From that order an appeal was filed to this Court and this Court held that the plaintiff was not entitled to have execution issued and dismissed the darkhast. This Court came to that conclusion on the ground that as there was a common partner between two firms who were parties to that suit and as no leave was obtained under Order 30, Rule 9 execution could not proceed. Then the present darkhast was filed on 9th December 1941 and the question that has been agitated in the Courts below is whether this darkhast was in time, and it is not disputed that this darkhast would only be in time provided the earlier darkhast of 1938, darkhast No. 565 of 1938, was a darkhast made in accordance with law within the meaning of Article 182.

Turning to Order 80, Rule 9, it applies the whole of Order 30 to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners in common. Then it proceeds to deal with execution of decrees passed in such suits and the provision is that no execution shall be issued in such suits except by leave of the Court, and on application for leave to issue such execution all such accounts and inquiries may be directed to be taken and made and directions given as may be just. Looking to the plain language of this rule, it is clear that leave of the Court is not made a condition precedent to the maintain ability of execution proceedings. All that the rule provides is that the Court shall not issue execution unless its leave has been obtained. Therefore, a darkhast may be filed and may be maintained without the leave of the Court, but if the decree-holder wants the assistance of the Court for the issuing of execution he cannot get that assistance unless the leave of the Court has been previously obtained. Therefore, when darkhast No. 665 of 1938 was filed, there was no defect in the darkhast itself. The darkhast was in accordance with law. Nor was there any incapacity in the Court to give the relief which the decree-holder sought. In that particular darkhast the decree-holder wanted attachment of the property belonging to the judgment debtor and the sale of that property. It cannot be said that the Court to which the decree holder applied for execution bad not the power to give the relief which the decree-holder sought. Therefore, as I said before, there was neither any infirmity in the darkhast itself nor any incapacity in the Court to grant the relief sought by the decree-holder.

It has been attempted to be argued by Mr. Thakor that the leave which is contemplated by Order 30 Rule 9, is to be given by the Court passing the decree and not the executing Court. We are unable to accept that contention, because it is clear that the latter part of Order 30, Rule 9 deals not with the trial Court but with the executing Court. Whereas the first part deals with suits the second Part deals with a stage when the suit has come to an end and a decree has been passed and the decree-holder is attempting to execute the decree. Therefore the Court contemplated by Order 30, Rule 9 is not the trial Court but the Court executing the decree. It has been further argued by Mr. Thakor that the decree holder did not comply with the provisions of Order 81, Rule 11, inasmuch as in its application he did not indicate the proper relief that he wanted from the Court. According to Mr. Thakor, the only relief that the Court could give when an application for execution is made in a suit which falls under Order 30, Rule 9, is to direct accounts and inquiries before any order for execution could be made, and according to Mr. Thakor when a decree holder applies in such suits for execution, be should mention in his application that the relief he requires is inquiries and accounts to be taken as contemplated by Order 80, Rule 9. That again, in my opinion, is an untenable contention because Order 30 Rule 9 gives the power to the Court before it gives the relief required by the decree-holder to order accounts and inquiries. But there is no obligation upon the Court so to do. The Court may dispense with the accounts and inquiries and may give the relief asked for, and therefore this relief which the decree-holder has got to ask is one of the reliefs contemplated by Order 21, Rule 11 (g). When he comes to Court for such a relief, the Court would apply its mind to the facts of the case and the Court may say that instead of giving the relief it will first order inquiries and accounts, or the Court may say that in a particular case accounts and inquiries are not necessary and the relief may be given straightaway. Therefore, in our opinion, is was not incumbent upon the decree-holder in his application for execution to State that the nature of the relief required was accounts and inquiries contemplated by Order 30, rule 9.

Several cases have been cited at the bar in Order to draw our attention to what is the proper test to be applied in order to determine whether a particular application is or is not in accordance with law. I always think it rather unsafe to lay down general tests irrespective of the particular facts which have got to be found in a case in order to apply a particular test. Whether a particular application is or is not in accordance with law must largely depend upon the nature of the application and the circumstances under which it came to be made, and to lay down a sort of an all pervasive test to be applied to all applications would be not only unsafe but almost an impossible task. Turning to these authorities, the one on which Mr. Thakor has strongly relied is a decision reported in Gopal Parsharam Namjoshi Vs. Damodar Janardan Bhagwat, . In that case the test that was laid down was that if it was possible for the Court to issue execution upon an application for execution, i. e., if it was 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 marits, be granted, owing to some finding on facts not to the nature of the application itself, then the application would be in accordance with law. When we turn to the facts of that case, an application was made by the decree holder for rateable distribution u/s 73. The Court had no power to order a rateable distribution at the instance of a decree-holder whose decree was not a decree for money, and therefore on those facts the Court came to the conclusion that the application for execution was not in accordance with law. But even if we apply that test to the facts of this case, the test would be satisfied because it cannot be said that in this case it was not within the power of the Court to grant the kind of relief which the decree-holder asked, viz., attachment and sale of the property of the judgment-debtor. As against this there is an earlier decision of this Court reported in Sadashiv v. Narsingrao 17 Bom. L.. R. 203 : A. I. R. 1915 Bom 46. In that case an application to execute a decree was filed in the absence of the conciliator''s certificate required by Section 47, Dekkhan Agriculturists'' Relief Act, and although that section provided that no suit and no application for execution of a decree passed before the date on which this Act came into force, to which any local agriculturist residing within any local area for which a conciliator has been appointed is a party, shall be entertained by any civil Court unless the plaintiff produces a certificate, the Court held that the application for execution was in accordance with law. It will be noticed that the language of Section 47 is much stronger than the language of Order 80, Rule 9. Whereas Order 30, Rule 9 merely requires leave before execution can issue, Section 47 precluded She Court from entertaining at all an application for execution. Even so, Heaton and Shah JJ. took the view that each an application without the conciliator''s certificate was an application in accordance with law. Another decision of this Court which has been referred to is one reported in Shankar Haro v. Damodar Vyankaji 47 Bom. L. R. 104: A.I.R 1945 Bom. 380. There the Court was considering an application for execution made under Order 21, Rule 16, and in that case notices were not given to the decree-holder and the judgment-debtor as contemplated by that rule. Even so, Macklin and Lokur JJ. held that the application for execution was in accordance with law, and the reason why they so held was that the applicant in that particular case might not be entitled to any relief on account of circumstances other than there being any defect in the application itself. When we turn to Order 31, Rule 16, we find that where a decree has been transferred by assignment, notice has to be given to the transferor and the judgment debtor, and the decree shall not be executed until the Court has heard their objections to its execution. Therefore, under Order 21, Rule 16 also execution is postponed unless some act has been done by the Court. Under Order 80, Rule 9, also execution has to be postponed until after leave has been obtained from the Court by the decree-holder. Therefore, under both these rules, the fact that relief cannot be granted is not due to any defect in the application for execution itself but relief has to be postponed because something has got to be done subsequent to the filing of the darkhast.

Therefore, in our opinion, the question that is decisive of this matter is whether leave under Order 30, Rule 9, was a condition precedent to the filing of the darkhast. If it was, then certainly the darkhast was not in accordance with law. If the leave contemplated by Order 80, Rule 9, was not a condition precedent to the filing of the darkhast itself, but merely to the issuing of the execution, then there was no defect in the application, the application was in accordance with law, and the mere fact that leave was not obtained did not in any way make the darkhast one which was not in accordance with law.

We would therefore answer the question submitted to us in the affirmative.