RAM CHANDRA SAHU Vs. DHIRENDRA MOHAN BHADRA

JUDGEMENT

(1.) THIS appeal by one of the sureties has proceeded to hearing ex parte, as the decree-holder respondent No. 1, as it appears from the record, in spite of repeated service of appeal notices, has not appeared to contest this appeal. Even in his absence, we have duly considered the points involved in the appeal and we regret that on a technical ground the appeal has got to be allowed, and thereby allowing the appellant to succeed in his act of dishonesty.

(2.) THE facts are these, Dhirendra Mohan Bhadra, respondent No. 1 filed in the year 1958 Money Suit No. 161 of 1958 against Bishwanath Sahu, respondent No. 2 for realisation of certain sum of money. During the pendency of the suit he got Truck No. BRO 668 attached before judgment. On the 14th May, 1958 a security bond was executed by respondent No. 2 and his son Ram Chandra Sahu, the sole appellant in this appeal, giving in security certain property and standing as sureties for the entire amount which the court be pleased to decree in favour of the plaintiff in the said money suit. A decree for Rs. 1455/3/- and cost Rs. 281 was passed on the 31st January, 1960 in favour of respondent No. 1 against respondent No. 2. THE former executed it by levying Execution Case No. 197 of 1960 on 1-11-1960. In this execution case the appellant was also made a party and the decree-holder tried to realise his dues by proceeding against the appellant in accordance with Section 145 of the Code of Civil Procedure. THE appellant filed an objection under Section 47 of the said Code. It was registered as Miscellaneous Case No. 75 of 1962. THE objection was repelled and the Miscellaneous case was dismissed by the execution court on the 20th July, 1963. THE learned Munsif who was executing the decree, allowed 15 days' time to the appellant to pay the decretal dues. He did not pay and filed Miscellaneous Appeal No, 32 of 1963 before the District Judge of Palamau at Daltonganj. THE then District Judge allowed the appeal by his judgment and order dated 30th September, 1963. He held that the decree-holder could not proceed against the appellant under Section 145 of the Code of Civil Procedure because there was no personal liability in the security bond and that no notice, as required under the said provision of law, was given to the appellant. That Judgment became final and the matter was not brought to this Court in further appeal. THE District Judge, however, had observed in that case on the basis of the decision of the Privy Council in Raghubar Singh v. Jai Indra Bahadur Singh, 55 Ind Cas 550 = (AIR 1919 PC 55) that the remedy of the decree-holder was to file an application in the suit itself.

(3.) ON a cursory reading of the Judgment of the District Judge in Miscellaneous Appeal No. 32 of 1963, I felt some doubt about its correctness. Be that as it may, that matter is final now. It is not open to respondent No. 1 now to take recourse to the provision of Section 145 of the Code of Civil Procedure for realisation of his decretal dues against the appellant. In view of the observation of the District Judge based on the decision of the Privy Council in Raghubar Singh's case, 55 Ind Cas 550 = (AIR 1919 PC 55, the application in the suit was rightly filed. But such an application could not be filed beyond three years of the decree. The bond was executed earlier but the liability undertaken (sic) [under?] the bond came into existence on the passing of the decree on the 31st January, 1960. There was no special provision in the Limitation Act, 1908 nor does there seem to be any in the new Limitation Act, 1963, providing for the period of limitation for the filing of such an application. The reason seems to be this. The Privy Council observed in Raghubar Singh's case, 55 Ind Cas 550 = (AIR 1919 PC 55) that since the security bond which has the effect of a mortgage bond creating charge on the property given in security is executed in favour of the court which is not a juridical person, it is doubtful whether the bond can be enforced by institution of a suit. Yet the person for whose benefit the bond has been taken cannot be without remedy. The Privy Council opined that the remedy is to make an application in the suit in which the bond was taken. In that view of the matter it seems to me that for the purpose of filing an application in the suit there being no specific article in the Limitation Act, Article 181 of the Limitation Act, 1908 would apply, which corresponds to Article 137 of the Limitation Act, 1963. The period of limitation, is three years either under the old Act or under the new Act. The remedy, therefore, to file an application of the kind in question was barred on the 31st January, 1963. The learned District Judge in his judgment under appeal has taken an erroneous view in thinking that the starting point of limitation would be the 30th September, 1963 when while allowing Miscellaneous Case No. 32 of 1963 his predecessor in office had made observation in regard to the remedy of filing an application in the suit. The observation of the learned District Judge was not giving any right to the decree-holder; the right existed in view of the law laid down by the Privy Council in Raghubar Singh's case, 55 Ind Cas 550 = (AIR 1919 PC 55). There are some observations in the decision of the Privy Council in Raghunandan Pd. Singh v. Kirtyanand Singh Bahadur, AIR 1932 PC 131 at p. 133 Col. 2 to lend support to the view I have taken above. The learned District Judge seems to be of the view that the case would be covered by Article 182 of the Limitation Act, 1908, the corresponding Article of the new Limitation Act being 136, and since this new Article provides a period of twelve years for the execution of a decree taking the application in the suit as an application in execution, the learned District Judge holds that it was filed within twelve years of the date of the decree and therefore it was not barred by limitation. The said view is not sustainable and for two reasons. Firstly, filing of an application in suit for the sale of the property cannot be taken to be an application in execution of the decree. Even assuming lit was possible to take this view the second reason for not accepting the view of the learned District Judge is that under the old Limitation Act the period of three years provided in Article 182 expired on the 31st January, 1963 before coming into force of the new Limitation Act on the 1st of January, 1964. That being so, under Section 31 of the new Limitation Act the remedy which was barred on the date of its coming into force could not be revived by the larger period provided in that Act.