AMARDEI DEVI Vs. RAMNATH MODI

JUDGEMENT

(1.) THIS appeal has been filed bv the Judgment-debtors-respondents of Miscellaneous Appeal No. 2 of 1963, which appeal has been allowed by a learned single Judge of this Court on the 2nd January 1964. The miscellaneous appeal had been filed by the decree-holders-appellants, who are the principal respondents in this Letters Patent Appeal.

(2.) TWO questions had been agitated in the miscellaneous appeal, which were, whether the execution levied by the decree-holders was barred by limitation or not, and whether an assignee of some property could execute a decree for recovery of possession of the property, when the decree itself had not been assigned in the assignee's favour. Both these points were decided by the learned single Judge in favour of the decree-holders. In view of the fact that both the points for consideration are settled by the decisions of the Supreme Court of India, it is not necessary to give the facts in great detail except to state the following for the judgment of this court. The Central Spinning Company, respondent No. 10, had instituted Title Suit No. 27 of 1940 for recovery of certain properties and for mesne profits. The suit was decreed on 20th November 1941 and a decree for possession was passed, except in respect of plots Nos, 1523 and 1542. Mesne profits were to be determined in a future proceeding. This decree was executed in Execution Case No. 24 of 1942 and possession was delivered to the decree-holders over Items Nos. 2 and 3 of the mortgaged property, but possession could not be delivered over Item No. 1 of the mortgaged property. Then, the decree-holder instituted Title Suit No. 39 of 1943 for a declaration that he had a right of way over Item No. 1 of the property through plot No. 1523. On account of this suit, the execution proceeding was stayed at the instance of the decree-holder. Title Suit No. 39 of 1943 was decreed and the stay order in Execution Case No. 24 of 1942 was vacated. In the meantime, the Company had executed a sale deed in favour of the executing decree-holder and the sons of the original judgment-debtors instituted Title Suit No. 41 of 1945, challenging the sale deed executed by the executing court and praying for a permanent injunction restraining the original decree-holder and the executing decree-holder from taking possession of plots Nos. 1537 to 1542. The prayer for temporary injunction made by the plaintiff of this title suit was dismissed on 27th September 1948 and the temporary injunction stood automatically dissolved. But, the plaintiff of the suit preferred a first appeal to this Court and this Court stayed the delivery of possession during the pendency of the appeal. The appeal was ultimately dismissed by this Court on 17th September 1956 and the stay order stood automatically vacated. The executing court, however, passed a formal order vacating the stay and required the decree-holder to take steps in the execution case. After some adjournments, the execution case was dismissed for default and the executing decree-holder filed two applications, one for revival of Execution Case No. 24 of 1942 and the other for fresh execution. The former application was rejected, but the second application was numbered as Execution Case No. 89 of 1959. Thereafter, on the death of the original executing decree-holder his heirs were substituted and the heirs of the original judgment-debtors filed an application in the last execution case contending that, as the original decree-holder had not assigned the decree in favour of the original executing decree holder or his heirs, the original decree in favour of the Company was not executable. They also asserted that, in view of Section 48 of the Code of Civil Procedure the decree could not be executed any further, as more than 12 years had elapsed since the date of the decree. The trial court had upheld both these objections, which conclusions were reversed by this Court in the miscellaneous appeal. A large number of decisions were referred to at the time of the hearing of the appeal before the learned single Judge on all the points and it is now clear that both the points are concluded by the decisions of their Lordships of the Supreme Court of India. On the question as to whether Section 15 of the old Limitation Act had controlled old Section 48 of the Code of Civil Procedure (now repealed) or not, the latest decision of the Supreme Court of India is in the case of Prem Lata Agarwal v. Lakshman Prasad Gupta, reported in AIR 1970 SC 1525. Their Lordships have approved a decision of the Madras High Court (Full Bench), in the case of Kandaswami Pillai v. Kananappa Chetty, reported in AIR 1952 Mad 186 (FB) and have held that the expression 'prescribed' in Section 15 (1) of the old Limitation Act not only applied to limitation prescribed in the first Schedule to the Limitation Act but also to limitation prescribed in general statute like Section 48 of Civil Procedure Code, before it was deleted. As a matter of fact, the decision of the Madras High Court (Full Bench) was relied upon by the learned single Judge on this point, amongst a large number of other decisions. On the other point, mentioned above, there are two decisions of the Supreme Court of India, which are also conclusive on the point and they are the cases of Jugalkishore Saraf v. Rao Cotton Co. Ltd.. reported in AIR 1955 SC 376 and Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi, reported in AIR 1958 SC 394. Reference has been made to Section 146 of the Code of Civil Procedure and to Order 21, Rule 16, holding that there was nothing in Order 21, Rule 16, which expressly or by necessary implication precluded a person, who claimed to be entitled to the benefit of a decree under the decree-holder but did not answer the description of being the transferee of the decree by assignment in writing or by operation of law, from making an application for execution which the person from whom he claimed could have made. In other words, it must be held that the executing decree-holder, in the instant case, and, thereafter, his heirs, can proceed to execute the decree obtained by the Company and no law stands in their way. Therefore, it is now clear that both the points, which arise in this appeal, are concluded by authorities of the highest Court and, therefore, this appeal must fail and is dismissed. In the circumstances of the case, however, there will be no order for costs.