VIRCHAND KAPURCHAND Vs. MARUALAPPA

JUDGEMENT

(1.) THE appellant is a decree-holder who is seeking to execute a decree obtained by him on July 19, 1921, in Suit No.236 of 1921 in the Court of the First Class Subordinate Judge, Bijapur, against defendants Nos. 1 and2. It was a decree for money and was passed in terms of an award. It made the decretal amount payable by instalments and directed that in default of payment of two instalments the whole amount should become recoverable at once. Two defaults in the payment of instalments were committed so that the whole amount became payable on May 1, 1923. THEreafter five darkhasts have been filed, the present one being the fifth, darkhast No.333 of 1939 filed on May 29, 1939. THE previous darkhasts were as under ; Darkhast No.106 of 1924 filed on March 10, 1924, and disposed of on June 26, 1928; Darkhast No.375 of i929 filed on August 7, 1929, and disposed of on June 26, 1931; Darkhast No.753 of 1931 filed on November 26, 1931, and disposed of on April 10, 1934; and Darkhast No.490 of 1934 filed on July 11, 1934, and disposed of on Jan. 19, 1939. When the present darkhast was filed the question arose whether it was time-barred under Section 48 of the Civil Procedure Code, limitation having begun to run from May 1, 1923. THE decree-holder submitted a statement purporting to show that he was entitled to exclude certain periods. Those periods he classified under four heads, two of which have now been relied on by the learned advocate for the appellant. THE first comprises "a period of about two and a half years, being the aggregate of the periods during which the first darkhast was wholly or partially stayed by the Muddebihal Court and the Court of the Joint Subordinate Judge at Bijapur. It is contended that these periods must be excluded when calculating the period of limitation under Section 15 of the Indian Limitation Act, 1908, the provisions of which would apply, as held in Ramgopat Bhutada v. Sidram Aunayya? THE second item is another period of about two years during which the fourth darkhast No.490 of 1934, was pending before the Collector. It is contended that under sub-paragraphs (1) and (3) of para. 11 of Schedule III of the Civil Procedure Code this period also must be excluded. THE learned trial Judge has held against the decree-holder on both these points.

(2.) THE darkhast was filed on May 29, 1939, and as the period of twelve years from May 1, 1923, was over on April 30, 1935, the decree-holder has to show that an aggregate period of four years and one month should be excluded from calculation. If, therefore, he succeeds in proving that he is entitled to two and a half years under one head and to two years under another head of his statement, exhibit 38, the present darkhast will be within time. In Ramgopal Bhutada v. Sidram Aunayya (1942) 45 Bom. L.R. 234 it was held that the provisions of Section 48 of the Code are controlled by Section 15 of the Act, which provides that in computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order shall be excluded. During the pendency of the darkhast No.106 of 1924 there was an order of the Muddebihal Court made in civil suit No.88 of 1925 staying execution, the order being passed on March 23, 1925, and finally withdrawn on March 19, 1926. Again, during the pendency of the same darkhast there was an order of the Bijapur Coast in civil suit No.227 of 1925 staying execution to the extent of four-fifths of the property. That order appears to have been made at the instance of the sons of the first judgment-debtor. Again, during the pendency of the same darkhast there was an order made in civil suit No.423 of 1926 staying execution to the extent of three-fifths of the property. That suit was also brought by certain sons of the first judgment-debtor. THE period of the stay under the order in civil suit No.227 of 1925 was from March 22, 1925, to December 5, 1926, i.e. a period of one year, eight months and twelve days, and the period of the stay under the last order above mentioned was from March 15, 1927, to January 31, 1928, a period of ten months and sixteen days. It is, however, contended on behalf of the respondents that of the three orders of stay the last two stayed not the whole of the pending execution but stayed it only to a limited extent, viz. to the extent of four-fifths of the property in one case and three-fifths of the property in the other, and that, therefore, it could not be said that in these cases the execution was stayed, that is, wholly stayed, which is what is meant by the expression " execution of which has been stayed by injunction or order " in Section 15 of the Indian Limitation Act.

(3.) THE third case, relied on by Mr. Madbhavi, was Gurudeo Narayan Sinha v. Amrit Narayan Sinha, That was a case in which the holder of a mortgage decree having applied for sale of the mortgaged property, the judgment-debtor's son, claiming a portion of the property, filed a suit and obtained an injunction for stay of the sale of the share claimed. THEreafter, excluding the son's share the property was put up for sale, but there being no bid, the darkhast was dismissed. On the withdrawal of the suit by the judgment-debtor's son the decree-holder renewed his application for sale of the entire property. When the judgment-debtor objected that as regards a three-fourths share in the property, which had previously been put up for sale, the application was barred by limitation, it was held that the last application of the decree-holder must be treated as a continuation of his former application and that the execution was not, therefore, barred by limitation. THEre the decree-holder did make a real effort to sell the three-fourths share of the property which was not affected by the stay order, but the circumstances were such that nobody could be expected to buy the said property ; and their Lordships observed (p. 692) : Thus although the injunction operated prima facie only to postpone the sale of 1/4th share, it was effectual in preventing the decree-holder from selling the remaining share of the property and he was compelled to wait until the bar was removed before renewing the application, which had been virtually suspended in the meantime. Mr. Madbhavi has relied on these remarks and contended that in the present case also the stay as regards a fraction of the property sought to be sold virtually operated as a stay with regard to the whole property. We do not think, in the absence of any evidence, that that is the only conclusion which is warranted by the circumstances of this case. THEre is nothing to show that the decree-holder could not have proceeded against the fractional share in the property which was not affected by the stay order, and we are unable to hold that considerations similar to those which applied in Gurudeo Narayan Sinha v. Amrit Narayan Sinha would apply to the facts of the present case.