KISHORI LAL RANA Vs. BHARAT NIDHI LTD

JUDGEMENT

(1.) This appeal has been filed by one Kishorilal Rana, who will hereafter be described as Rana. The appeal arises out of an order passed by the learned Subordinate Judge on the 29th of June, 1961, in Miscellaneous case No. 14 of 1961. An application had been filed by Rana in Execution Case No. 41 of 1959, under the provisions of Section 151 of the Code of Civil Procedure, which was numbered as Miscellaneous case No. 14 of 1961. That application has been dismissed by the learned judge, the result of which is that Execution Case No. 41 of 1959 will proceed.

(2.) The facts given below represent the substance of certain connected cases, in which the appellant, Rana, and the respondent, namely, Bharat Nidhi Limited, were concerned. Bharat Nidhi Limited will hereafter be referred to as the Bank. On the 28th of May, 1946, the Bank had obtained a money decree against Rana, in Money Suit No. 1 of 1946, in the Court of the Subordinate Judge of Hazaribagh, On the 25th of January, 1952, the Bank started Execution case No. 2 of 1952, to execute the decree passed in that money suit. On the 12th of August, 1955, 'Rana had obtained a money decree against the State of Bihar, in Money Suit No. 12 of 1950, in the Court of the first Additional Subordinate Judge of Hazaribagh. The decree was for about a sum of Rs. 41000/-. In the same year, in Execution Case No. 2 of 1952, an amount of Rs. 9368/14/3 was attached by the Subordinate Judge, under Order 21, Rule 53 of the Code of Civil Procedure, out of the decree passed in Money Suit No. 12 of 1950. Ultimately, on the 28th of August, 1958, Execution Case No. 2 of 1952 was dismissed by the Court, keeping the attachment made earlier alive. It appears that by the order dated the 28th of August, the Bank, was permitted to execute the decree passed in Money Suit No. 12 of 1950, for the realisation of its dues. In the meantime, on the 25th of November, 1955, the State of Bihar had filed an appeal in this Court against the decree passed in Money Suit No. 12 of 1950. This appeal was numbered as F. A. No. 516 of 1955. A cross-objection had been filed in that appeal by Rana. Thereafter, on the 29th of August, 1959, the Bank filed Execution Case No. 41 of 1959, under the provisions of Order 21, Rule 53 of the Code of Civil Procedure. The application was for executing the attached decree for the realisation of Rs. 9368/14/3. It may be mentioned here that Execution case No. 41 of 1959 had to be started in the Court of the Subordinate Judge, Hazaribagh, as the Court of the first Additional Subordinate Judge, Hazaribagh, was then no longer in existence. To this application for execution, the appellant objected on the ground that the Bank's execution was barred by limitation, as the execution case was hit by the provisions of Section 48 of the Code of Civil Procedure. This point has been decided by the learned Subordinate Judge against the appellant.

(3.) Learned counsel for the appellant has contended that as the Bank had instituted Execution Case No. 41 of 1959 on the 29th of August, 1959, in effect, to execute its own decree dated the 28th of May, 1946, passed in Money Suit No. 1 of 1946, the execution case was not maintainable in view of Section 48 of the Code of Civil Procedure. That is to say, it is urged that the application filed on the 29th of August was a fresh application, really to execute the decree passed in Money Suit No. 1 of 1946, and as the application for execution was filed beyond twelve years of the 28th of May, 1946, the application was barred by limitation. According to the learned counsel for the appellant, a decree-holder can execute his decree in various ways under Section 51 of the Code of Civil Procedure. Reliance is placed on Section 51, Clause (e), which says, that the Court may, on the application of the decree-holder, order execution of the decree "in such other manner as the nature of the relief granted may require." It is argued that under the provisions of this clause, in an appropriate case, a decree-holder takes steps under Order 21, Rule 53 of the Code of Civil Procedure. Thus, according to learned counsel for the appellant, the Bank was really executing the decree passed in its favour on the 28th of May, 1956, by proceeding under Order 21, Rule 53. The Bank was, therefore, executing its own decree although it was by the attachment of the decree passed on the 12th of August, 1955 in Money Suit No. 12 of 1950. But, it is urged, that nonetheless the execution was of the Bank's decree of the year 1946. According to learned counsel, therefore, the application filed on the 29th of August, 1959, was beyond twelve years from the decree passed in Money Suit No. 1 of 1946, and, therefore, Execution Case No. 41 of 1959 is barred by limitation, provided by Section 48 of the Code of Civil Procedure. For the reasons given below. I am of the opinion that the contention raised by learned counsel for the appellant must be rejected. In this case, the Bank is really proceeding under the provisions of Order 21, Rule 53, Sub-rules (2) and (3) which read thus: "(2) Where a Court makes an order under Clause (a) of Sub-rule (1), or receives an application under sub-head (ii) of Clause (b) of the said sub-rule, it shall, on the application of the creditor who has attached the decree or his judgment debtor, proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed.