LAWS(CAL)-1954-12-5

AMARENDRA LAL KHAN Vs. MANINDRANATH ROY

Decided On December 03, 1954
AMARENDRA LAL KHAN Appellant
V/S
MANINDRANATH ROY Respondents

JUDGEMENT

(1.) This is an appeal by the decree-holder against an order passed by the Subordinate Judge, Midnapore, on an application under Section 47, Civil P. C., dismissing an application for execution for the balance of a rent decree.

(2.) The matter arises in this way: On 17-4-1935, the appellant obtained a decree in a rent suit for the sum of Rs. 5,727-15-0. Thereafter the debtors went to the Debt Settlement Board, but ultimately their application was dismissed for non-prosecution by the Debt Settlement Board. Then on 1-11-1941, a petition for execution of the decree was filed by the appellant. In the application which was made the assistance of the Court was sought by attachment and sale of the movables ' belonging to the judgment-debtors. Three objections were filed by the judgment-debtors under Section 47, Civil P. C. in the said execution case and as a result thereof three miscellaneous cases were started. The main ground of objection taken by the judgment-debtors was based on Section 168A, liengal Tenancy Act; in other words, it was contended that in view of the provisions of Section 168(1)(a), Bengal Tenancy Act no sale of the movables sought to be attached can be effected in execution of the said decree. It would be necessary at this stage to refer to the contents of the said application for execution. In the said application it was stated that as the decree-holder had caused the tenure to be sold and had purchased it, the other properties of the judgment-debtors cannot be held liable for the payment of the balance of the decree. In substance what was contended was that in view of the provisions of Section 168A, Bengal Tenancy Act only the tenure could be sold in execution of the rent decree and the said tenure having already been sold the decree could not be executed by sale of any other property of the judgment-debtors. The said objection under 9. 47, Civil P. C. was upheld by the trial Court. Against that decision an appeal was taken to the Court of the District Judge. The lower appellate Court reversed the said decision. Thereupon three appeals were preferred to the High Court against the said decisions. I should have mentioned that the lower Court on 19-11-1942, on being apprised of the fact that appeals have been preferred to the High, Court made the following order: "The execution of the decree be stayed until further orders." The stay remained in operation from 17-11-1942, to 17-7-1949. By an order of the High Court dated 18-7-1949, the matter was sent back to the trial Court for re-hearing. Thereafter on 27-7-1949, the decree-holder filed a petition for amendment of the original application for execution. In the said petition the amendment sought for was substitution of the immovables in the place of the movables which was in the original petition. An order was made on the said application allowing the amendment. The judgment-debtors thereupon, it appears, applied for stay and we are told that the execution of the decree remained stayed from. 8-9-1949 to 9-1-1951, and on 9-1-1951, the stay was vacated. On 26-8-1951, in execution of the said decree an attachment was effected on the immovable properties mentioned in the amended application for execution. Thereafter on 22-9-1951, the present objections were filed under Section 47, Civil P. C. In the said application under Section 47 of the Code it was stated that the order complained of, that is to say, the order of amendment made on 27-7-1949, had been passed without giving an opportunity to the applicants-judgment-debtors to put forward their objections. It was also contended that apart from the amendment of petition for execution under Order 21, Rules 11, 12, 13 and 14, Civil P. C. any other mode of amendment was not legal. In the circumstances the objectors prayed 'inter alia' for an order for reconsidering or recalling the order on a declaration that the application of the decree-holder dated 27-7-1949, is barred by limitation and that it may be declared that such amendment of the petition for execution is illegal, 'ultra vires' and the order dated 27-7-1949 may be vacated. In other words, in the said application the judgment-debtors sought to have the said order vacated on the ground that it was obtained without any notice to them and they also contended that the application for execution, which was started after the expiration of 12 years from the date of the decree, was barred by limitation. In support of the objection as to limitation reliance was placed on Section 48, Civil P. C. which provides: "Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from - (a) the date of the decree sought to be executed." The other portions of the said section are not necessary to be considered in the present appeal. What was contended before the lower Court was that the application for amendment dated 27-7-1949 was really a fresh application and the same was made after the period of 12 years from the date of the decree and, therefore, under Section 48, Civil P. C., that application was barred. The learned Judge upheld that contention and the said application for execution dated 27-7-1949 was dismissed. It is against that order that the present appeal has been preferred to this Court.

(3.) The learned Advocate for the appellant raised various contentions before us, but in our opinion this appeal can be disposed of only, on one of them. The learned Advocate for the appellant contended that the application for execution, even if it be assumed that the application for amendment was really a fresh application, was saved from the bar of limitation, because, of the provisions of Section 15, Limitation Act; in other words, he contended that the period during which the execution remained stayed, that is to say, from 17-11-1942 to 17-7-1949 has to be excluded In computing the period of limitation for the execution of the said decree. If that is done, then, according to him, it is clear that the application dated 27-7-1949 even if it be a fresh application for execution was not barred by limitation. In order to determine this question it would be necessary for us to refer to the provisions of Section 15, Limitation Act and consider the application thereof. The material portion of the said section reads as follows: 15. (1) "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, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded."