LAKHPAT RAI SHARMA Vs. ATMA SINGH

JUDGEMENT

(1.) THIS appeal under C1. 10 of the Letters Patent against the judgment of a learned Single Judge of this Court, dated November 2, 1966, dismissing Execution First Appeal No. 50 of 1962, and upholding the order of the executing Court dismissing the application of the decree-holder-appellant for execution of his decree against the respondent as barred by time, has been filed in following circumstances:appellant obtained a money decree from the High Court of Singapore on September 22, 1954. Though the foreign law of Singapore has not been formally proved, both sides are agreed that the flat period of limitation for execution of the decree in the Singapore Court was twelve years. In view, however, of an earlier decision of this Court (P. C. Pandit, J.) inter partes, dated December 9, 1960, since reported in Lakhpat Rai Sharma v. Atma Singh, ILR (1961) 2 Punj 166 = (AIR 1962 Punj 228) the question of limitation relating to the execution proceedings under reference has to be decided according to Indian law, and the foreign law cannot be looked at for that purpose. Admittedly, no step for execution of the decree was taken in any Court in this country within three years of the date of the decree. The application for execution filed under Section 44-A of the Code of Civil Procedure after the expiry of three years from the date of the decree was returned by the order of the executing Court, dated January 12, 1959, to the decree-holder as it was not accompanied by the requisite certificate of non-satisfaction from the Singapore Court. Thereafter the decree-holder applied for and obtained on March 4, 1959, the requisite certificate from the High Court of Singapore, and re-presented the application for execution to the executing Court in this country on March 13, 1959, along with the said certificate. By order, dated December 26, 1961, the execution application was dismissed as barred by time and the said order was upheld by the appellate judgment of the learned Single Judge on November 2, 1966.

(2.) MR. Harbans Lal Sarin, learned counsel for the appellant, has claimed the execution application to be withing time by invoking the last sentence of Art. 182 (5) of the Indian Limitation Act (9 of 1908 ).

(3.) SECTIONS 44-A (1) and (2) of the Code of Civil Procedure are in the following terms:" (1) Where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court. (2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment. " It is common ground between the parties that Singapore is a reciprocating territory within the meaning of S. 44-A (1) of the Code. The competence of the Indian Court to entertain the execution application subject to the question of limitation is, therefore, not disputed. Mr Sarin's argument is that a step in aid of execution by obtaining the certificate of non-satisfaction requisite under sub-section (2) of S. 44-A was a sine qua non for making a proper application for execution to this Court, and that step in aid was taken in the Singapore Court within the time allowed by the law of that country, i. e. , within twelve years. Mr. Sarin argued that once this is found to be correct, Clause 5 of Art 182 comes to his aid and the limitation for executing the decree in this country would be three years from March 4, 1959. Article 182 states that for the execution of a decree or order of any Civil Court not provided for by Art. 183 or by S. 48 of the Code of Civil Procedure, 1908, the period of limitation is (except in a case where certified copy of the decree or order has been registered) three years from the date of the decree or order (or appellate order etc.), and Clause 5 in the third column states that time from which the period of three years begins to run shall in the circumstances covered by that clause be computed as under: "5. (where the application next hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step in aid of execution of the decree or order, or 6. (in respect of any amount, recovered by execution of the decree or order, which the decree-holder has been directed to refund by a decree passed in a suit for such refund) the date of such last-mentioned decree or, in the case of an appeal therefrom, the date of the final decree of the appellate Court or of the withdrawal of the appeal. " Mr. Sarin submits that the application for the certificate of non-satisfaction given to the Singapore Court must be considered to be a "step in aid of execution of the decree" within the meaning of the last lines of Clause 5 of Art. 182, and inasmuch as the application for execution resubmitted to the Indian Court on March 13, 1959, had been filed within three years of the grant of the certificate by the Singapore Court, i. e. , three years from March 4, 1959, the application should be held to have been filed within time as the prayer for the grant of the certificate of non-satisfaction had been made to the Singapore Court within the time allowed by the law of that country. After carefully considering the submission of the learned counsel, we have not been able to persuade ourselves to agree with the same. In order to allow the contention of Mr. Sarin to succeed, we have to apply the Singapore law to the case in order to bring the step in aid within limitation. This we are precluded from doing on account of the previous judgment of Pandit, J. , dated December 9, 1960, between the parties whereunder the decree-holder himself took benefit of his success in the contention then pressed by him that it is the Indian Law only which would be applicable to the execution proceedings of the foreign decree in the Indian Courts under Section 44-A of the Code. The deeming provisions of S. 44-A do not leave any option with the Indian Courts. The foreign decree has to be executed in India "as if it had been passed by the District Court (Indian District Court ). " It is settled law that the legal fiction envisaged by a deeming provision must be extended to its logical end. That being so, the decree of the Singapore Court has to be treated, for purposes of Section 44-A, as a decree passed by the District Judge, Jullundur, on September 22, 1954. No step for execution of the decree and no step in aid for such execution having been taken by the appellant in any Indian Court on or before September 22, 1957, the present application filed in 1959, must be held to be barred by time, and cannot possibly be allowed to be entertained. In this view of the matter, we are unable to find any ground for interference with the judgment of the learned Single Judge.