NARAYAN CHANDRA DUTTA Vs. NATH BANK LTD

JUDGEMENT

(1.) This is an appeal under the Letters Patent from the decision of a Single Judge of this Court dated the 1st July, 1958, arising in execution of a decree passed in a Money Suit The judgment-debtor. Narayan Chandra Dutta is the appellant and the Nath Bank Ltd., the decree-holder, is respondent. The respondent, on the 30th July, 1902, obtained against the appellant a decree for Rs. 22,517-0-9 pies with costs, besides interest, at 6 per cent per annum. A sum of Rs. 5.931-0-0 had been attached before judgment, and the decree provided that this amount would be adjusted towards satisfaction of the decree money and the balance of the amount was made payable by annual instalments of Rs 2,000, each instalment falling due in December each year, commencing from 1943. It was further directed that, in the event of default of payment of any one instalment, "the entire unpaid decretal amount shall become payable". The first application for execution was made on the 4th September 1942 (Execution case No. 5 of 1942) and was dismissed on part satisfaction on the 25th September 1943 after realisation of the attached amount of Rs. 5,931-6-0 The first instalment fell due in December, 1943, and there was default in the payment of this instalment The judgment-debtor made thereafter payments of Rs. 2,000 on the 23rd September, 1944, and the 22nd December, 1944 each which, it appears, were credited by the decree-holder to the instalments due in December. 1943, and December, 1944. The third instalment, which was due in December, 1945, was also not paid. Because of this default the decree-holder had the option to levy execution in respect of the entire decretal amount then remaining unpaid. This time the decree-holder elected to enforce the default clause in the decree and recover the whole debt in one lump sum and, accordingly on the 6th September, 1946, the decree-holder put the decree in execution for the entire amount remaining unpaid. It was numbered as execution Case No. 5 of 1946. In this execution proceeding there was on the 16th January, 1947, a fresh Adjustment of the decree to the effect that the annual instalment would he reduced to Rs. 1,000 and would be payable in June each year till the outstanding amount was liquidated, that the next instalment of Rs. 1,000 was to fall due in June, 1947 and that in default of payment of two successive instalments, the entire amount then remaining due would at once be payable and would be recoverable by execution. The decree-holder further admitted that he had received Rs. 2,000 from the judgment-debtor on account of the 1945 December instalment The second execution was, therefore, dismissed on part satisfaction in pursuance of this adjustment on the 16th January. 1947.

(2.) On the 8th September, 1949, the decree-holder filed a petition before the executing Court, alleging payments of Rs. 2,000 each on the 23rd September, 1944, the 22nd December. 1944, the 28th June, 1948 and the 26th June, 1949. The first two instalments paid on the 23rd September, 1944, and the 22nd December, 1944, had, as stated above, been credited towards the instalments of 1943, and 1944.

(3.) The third and the last execution, which has given rise to this appeal, was levied on the 15th May, 1952, being Execution Case No. 13 of 1952, and by this execution the decree-holder purported to realise the entire decretal amount remaining unpaid. Notice of this execution under Order 21, Rule 22 was first issued on the 31st May, 1952, and when, despite repeated attempts, the service of notice could not be effected, the decree-holder file d on the 4th August, 1952, an application supported by an affidavit for service of notice on the judgment-debtor under Rule 20 of order 5 of the Code of Civil Procedure. The substituted service of notice was. made before the 11th September. 1952, and on that date the decree-holder was directed to take further steps on the 16th September, 1952. On the latter date the decree-holder filed process fee of Rs. 3 and process for attachment of immovable property, and the Court directed, issue of writ of attachment, fixing the 23rd October, 1952, for return. It was duly effected. On the date fixed, that is, the 23rd October, 1952, the decree-holder was absent and the judgment-debtor appeared through a pleader and filed objection to the execution of the decree on the ground of limitation. This objection of the judgment debor was set down for hearing on the 20th November, 1952. After several adjournments this objection was taken up for hearing on the 23rd February, 1958. The decree-holder was present on that date, but the judgment-debtor was absent. Thereupon, the executing Court passed an order rejecting the application of the judgment-debtor and directing the decree-holder to file requisites for fixing the valuation of the attached property. On the 13th June, 1953, the judgment-debtor filed another application raising a similar defence, namely, that the application for execution was barred by limitation as it was filed more than 3 years after the disposal of the previous execution case. This was numbered as miscellaneous Case No. 13 of 1953. The reply of the decree-holder was that there was fresh adjustment of the decree in the second execution, and the judgment-debtor made the last payment of Rs. 2,000 on the 26th June. 1949, and that, therefore, the execution was well within time. It was further urged that the present application was barred by the principles of constructive res judicata.