KARTAR SINGH Vs. SULTAN SINGH PARTAP SINGH

JUDGEMENT

(1.) THE facts in this appeal are these. A decree for eviction was passed under the Delhi and Ajmer Rent Control Act, 1952. At the time when it was passed it was not executable for two years from the commencement of the Delhi Tenants (Temporary Protection) Act, 1956 (Act 97 of 1956 ). It is common ground that it became executable on 11th March 1959. However, there was another hurdle in the way of eviction proceedings and that was the Slum Areas (Improvement and Clearance) Act, 1956 (Act 96 of 1956) which came into force on 29th December 1956. On 29th May 1962 an application was made by the decree-holder to the Competent Authority under that Act which granted the requisite permission on 3rd May 1963 but directed that the decree would not be executed prior to July 1963. On 5th June 1963 an application for execution was filed and the objection taken was that it was barred by time. The executing Court held that it was not barred for two reasons. The first was that the time started running only after 31st July 1963 from which, date alone the decree could be executed according to the orders of the Competent Authority. The second reason was that the judgment-debtor had made an application for setting aside of the decree on 23rd April 1959. This application was dismissed on 21st October 1960 after reply had been filed by the decree-holder. The reply constituted a step-in-aid in execution and the decree-holder was entitled to deduct the time so spent. On appeal the learned Senior Sub-Judge affirmed the decision of the executing Court principally on the ground that Article 181 of the Limitation Act, 1908, was applicable in view of a decision of Mehar Singh J. (as he then was) dated 27th November 1964 in Rani Kirpal v. Jain Sweitamna Temple Buildings etc. , Ex. S. A. No. 226-D of 1963 (Punj) and time began to run only with effect from 31st July 1963 when the right to apply for execution accrued to the decree-holder. No decision was given on the second point which had prevailed with the executing court.

(2.) ACCORDING to Mr. S. N. Chopra, for the appellant, it would be Article 182 of the Limitation Act which would govern the presets case and that the limitation would commence running from the date of the decree or order. It is pointed out that once time begins to run for the purpose of Article 182 no subsequent disability or inability would stop it and deduction could only be allowed from the prescribed period of limitation under some provision of the Limitation Act itself. There is no provision in that Act other than Section 15 (1) and if the case does not fall under Section 15 (1) the execution application must be held to be barred by time. Mr. Chopra has relied inter alia on my decision in which the above view was expressed in Pearey Lal v. Krishan Sarup, 1963-65 Pun LR 793: (AIR 1963 Punj 457 ). It is next urged that even if the decree was executable up to 11th March 1959 there was no justification for the decree-holder making an application to the Competent Authority under Act 96 of 1956 until after a lapse of a period of three years. There was no bar whatsoever in the way of the decree-holder in applying to the Competent Authority soon after the decree became executable in March 1959. In Yeshwant Deorao v. Walchand Ramchand, AIR 1951 SC 16 it has been laid down that Articles 181 and 182 of the Limitation Act and Section 48 of the Code of Civil Procedure have to be read together. The Articles expressly refer to the section but they are independent or parallel provisions, different in their scope and object. Section 48 (2) extends the 12 years' period of closure by a further period of similar duration but the necessity of resort to Article 182 is not thereby obviated. The decree-holder must have been taking steps to keep the decree alive and the only circumstance that would relieve of this obligation is the existence of fraud under Section 18 of the Limitation Act. Mr. Chopra therefore claims that when Article 182 was applicable the Courts below were wholly in error in holding that the execution application was within time. Mr. Chopra has further sought to elaborate his contention by referring to Ramaswami Pillai v. Govindasami Naicker, AIR 1919 Mad 656 and Chidambaram Chettiar v. Meyyappa Chettiar, AIR 1944 Mad 67. In the first case it was held that an order of adjudication did not under Section 16 (2) of the Provincial Insolvency Act effect an absolute stay of all proceedings against the insolvent by suit or otherwise, but contained only a direction that before a suit was brought a condition precedent should be complied with, namely, the obtaining of leave to sue from the Court. Section 15 of the Limitation Act did not operate to save limitation in cases where the suit could have been instituted on complying with a preliminary requisite in that behalf, viz. the obtaining of leave to sue from the Court. According to Mr. Chopra, limitation would not be saved in the present case also even though the permission of the Competent Authority was necessary in view of the rule laid down in this case. In the latter decision the previous Madras case was relied upon and it was held that unless Section 15 (1) of the Limitation Act became applicable or could be availed of, limitation could not be saved. In Sayaji Rao v. Madhavrao Raghunathrao, AIR 1929 Bom 14 which is another case relied upon by Mr. Chopra, the plaintiff claimed deduction of the time taken by him for obtaining permission to file a suit against a defendant against whom suit could be filed only after obtaining permission under Section 86 of the Code of Civil Procedure. It was observed that the plaintiff could have applied very much earlier than he did and that no deduction could be allowed for that period for the purpose of limitation.

(3.) THE question in the present case is not one of deduction of a certain period from the prescribed period of limitation. The contention on behalf of the decree-holder is that when the decree was passed it was in executable and by virtue of the provisions of Act 96 of 1956 it continued to be in executable until permission of the Competent Authority was obtained. Time would, therefore, start to commence running only when the permission was granted even if Article 182 was applicable. Reliance has been made on Ram Kirpal's case which is reported in 1965-67 Pun LR 481. Mehar Singh J. (as he then was) treated the prohibition contained in Act 96 of 1956 as absolute. According to him, a decree could become executable only if and when permission was obtained under Section 19 (1) of Act 96 of 1956 and time under Article 182 of the Limitation Act would start running only from the date it became executable, namely, the date according to the order of the Competent Authority. Mr. Chopra points out that in the aforesaid case the permission had been obtained within the period of three years from the date of the decree but I do not see how that would affect the real basis on which the case was decided, namely, that it was imperative for the decree-holder to seek permission under Section 19 (1) of Act 96 of 1956 before he could execute the decree. In Tarlok Nath v. Rattan Singh, (Ex. S. A. No. 159-D of 1964) decided by P. D. Sharma J. on 27th September 1965 (Punj), the above decision was followed. Sharma J. also relied on the observations in Rameshawar Singh v. Homeswar Singh, AIR 1921 PC 31 to the following effect:-