RAJA BHAIYA Vs. DAULAT SINGH

JUDGEMENT

(1.) THIS order governs the disposal of the connected Letters Patent Appeal No. 38 of 1960 also. Both these appeals are directed against the orders of a single Judge of this Court passed on 19 -9 -1960. Respondent No. 1 Choudhuri Daulat Singh and others had obtained two decrees in Civil Suit Nos. 1 of 1929 and 6 of 1932 against the appellants. Applications for execution of these decrees were filed immediately after the decrees; but the details thereof are not material. It need only be mentioned that an execution application in the first case was dismissed on payment of Rs. 500 as partly satisfied in November 1934 with the remark that a stay order passed by the Debt Conciliation Board had been received. Similarly an application to execute the second decree also was dismissed on 20 -11 -1934 with the Same remark. The judgment -debtors bad applied for conciliation of their debts under the C. P. and Berar Debt Conciliation Act, 1933, in the year 1933. This application was decided on 23 -11 -1936 when an agreement was arrived at between some of the creditors and was duly registered under section 12 of that Act. Under the agreement the debtors were allowed to pay the dues by instalments extending upto 20 -11 -1956. The decree -holders Choudburi Daulat Singh and others did not agree to conciliate their debt; and as the offer made to them was fair in the opinion of the Board, a certificate under section 15 (I) of the Debt Conciliation Act was ordered to be issued against them. On 19 -9 -1950 the judgment -debtor Baldeoprasad died and the decree -holders applied for substitution of the present appellants in his place. The judgment -debtors objected to the application for substitution on the ground that as a certificate under section 15 (1) of the Act had been issued, the proceedings were barred under section 21 of the Act. The matter went up to the High Court and it was ultimately held that mere proceedings for substitution did not amount to execution of the decree and nothing could be stayed. Accordingly, substitution was ordered.

(2.) ON 27 -7 -1957 the decree -holders filed applications for execution of both the decrees. The judgment -debtors contended that the execution of the decree was barred by time. Although no provision of the Limitation Act was specifically mentioned, presumably the objection related to section 48 of the Civil Procedure Code and Article 182 (I) of the Limitation Act. The decree -holders replied by saying that they were entitled to exclude the time between 20 -10 -1934 and 20 -11 -1956 during which period the Debt Conciliation proceedings were pending and the amounts recorded as payable under the agreement registered under Section 12 (2) remained unpaid. The judgment -debtors replied by saying that no certificate under section 15 was issued against the decree -holders at all and further stated that as the original decrees were for recovery of mesne profits, they were not ''debts" within the meaning of the Debt Conciliation Act. The executing Court negatived the contentions of the judgment -debtors and allowed the exclusion of time as claimed by the decree -holders. The execution applications were, therefore, held to be within limitation and were allowed to proceed. An appeal against the orders of the executing Court failed as also a second appeal to the High Court. The learned single Judge while dismissing the appeals granted a certificate under clause 10 of the Letters Patent. Accordingly, the judgment -debtors have filed these appeals before us.

(3.) IN considering the objection whether the decree -holders are entitled to exclude the period as claimed, we shall first refer to the pleadings of the parties on this point. The judgment -debtors in their objection to the execution, filed on 29 -10 -1957, stated that the execution is barred by time and liable to be struck off as such. In paragraph 5 they further stated that the execution of the decree is further barred by time in view of the fact that there was DO certificate issued under section 15 of the C. P, Debt Conciliation Act. In their reply, dated 24 -1 -1958, the decree holders stated that "the judgment -debtor had filed on 20 -10 -1934 a certificate from the Debt Conciliation Board issued to him under section 15 (1) of the Debt Conciliation Board Act II of 1933." They further stated that "under the agreement dated 21 -11 -1936 between the judgment -debtor Baldeoprasad and his debtors (creditors) other than these decree -holders and Chairman and members of the Debt Conciliation Board, the debts of the judgment debtor were payable in 20 instalments from 1 -6 -1937 to 1 -6 -1956. Therefore, under sections 21 and 15 (3) of the Debt Conciliation Act, the execution of this decree was stayed from 20 -10 -1636 to 1 -6 -1856". They claimed benefit of section 15 of the Indian Limitation Act and section 23 of the Debt Conciliation Act.