SUBAI SHIA MAJLISE AUQAF Vs. SAVITRI DEVI

JUDGEMENT

(1.) This appeal is directed against an order of the Additional District Judge of Patna reversing an order of the Subordinate Judge after holding that Execution Case No. 62 of 1960 was barred by limitation and thus allowing an application under Section 47 of the Code of Civil Procedure filed by the respondent. The appellant obtained a decree on the 16th November, 1955 with costs against the respondent from the court of the Subordinate Judge at Patna. The respondent preferred a first appeal to the High Court against the decree on the 19th March, 1956. For failure on the part of the appellant in the first appeal to pay the printing cost that appeal was dismissed for default on the 21st March, 1957. Thereafter the present appellant-decree holder filed an application for execution which was registered as Execution Case No. 16 of 1960, on the 21st March 1960, for realisation of the cost allowed by the decree. Notice under Order 21, Rule 22 of the Civil Procedure Code was issued on the respondent on the 25th April, 1960. The notice was returned un-served and on the 26th May, 1960 the decree-holder was directed to file the requisites for fresh service of notice by the 3rd June, 1960, on which date time was again granted to file the requisites by the 14th June, 1960. On this date too the decree-holder did not take any step and the execution case was dismissed for default. The second application for execution, which was numbered as Execution Case No. 62 of 1960, was filed on 14-9-60. After service of notice the respondent judgment debtor filed the aforesaid application under Section 47 of the Code of Civil Procedure asserting that the execution application was barred by time. In this connection, the respondent also raised a question that the three years' period of limitation should be counted from the date of the decree of the trial court and not from the date of the dismissal of the first appeal for default in the High Court. Both the courts below rejected this contention and held that the period of three years' should be counted from the date of dismissal of the first appeal in the High Court, i.e. from the 21st March, 1957. The learned Subordinate Judge further held that the first execution was a step in aid of execution, and, therefore, the second execution was also within time. The learned Additional District Judge, however, was of the view that failure on the part of the decree holder to comply with the order of the executing court requiring him to file requisites for notice under Order 21, Rule 22 of the Code must be construed to mean that there was no application to the court for taking any step in aid of the execution, and, therefore, Execution Case No. 16 of 1960 would not be of any avail to extend the period of limitation. Hence, the decree-holder preferred this appeal which came up before a learned single Judge of this Court who by his order dated the 18th October, 1963, referred the appeal to a larger Bench on account of a conflict in two Bench decisions of this Court, namely, Raghu Prasad Singh v. Jadunandan Prasad Singh A.I.R. 1921 Pat. 6 and Hirdey Narayan Singh v. Rao Maheshwari Prasad Singh A.I.R. 1932 Pat. 251 in respect of the question whether an order dismissing an appeal for non-payment of printing cost was a final order within Clause (2) of Article 182 of the Indian Limitation Act, 1908.

(2.) Mr. S.P. Srivastava who appeared for the respondent challenged the finding of both the courts below on the question whether the order dismissing the first appeal in the High Court for default was a final order within the meaning of Clause (2) of Article 182 of the Indian Limitation Act. Article 182 lays down that a decree of a civil court has to be executed within a period of three years from the date of the decree or as provided under Clause (2) that is, where there has been an appeal, the date of the final decree or order of the appellate court, or the withdrawal of the appeal, or as provided in Clause (5), namely, where the application next hereinafter mentioned has been made, the date of the final order passed on an application made in accordance with law to the proper court for execution or to take some step in aid of execution of the decree or order. According to Clause (2) of the Article, the period of three years would be counted from the 21st March, 1957, if the order of the High Court dismissing the first appeal for default is deemed to be the final decree or order. Mr. Srivastava relied on the Bench decision of this Court in the case reported in A.I.R. 1932 Patna 251, corresponding to I.L.R. 11 Patna 479, in support of his argument that the order of the High Court dismissing the first appeal for default on 21st March, 1957, was not a final order, and, therefore, the period of three years for the first execution ought to be counted from the 16th March, 1955, the date of the decree of the trial court". A view contrary to that was taken in the case reported in A.I.R. 1932 Patna, 251, was taken in the case reported in A.J.R. 1921 Patna 6. Both these decisions as well as some other decisions including a few decisions of the Privy Council were considered by a Bench of this Court in the case of Sashi Bhusan Rai v. Bhuneshwar Rai A.I.R 1955 Pat.

(3.) Mr. Sarwar Ali, who appeared for the appellant, challenged the finding of the lower appellate court that nothing in Execution Case No. 16 of 1960 amounted to any step in aid of execution, and, therefore, Clause (5) of Article 182 would not save the limitation. It will be noticed that Clause (5) of this Article contains two alternatives, (i) the date of the final order passed on an application made in accordance with law to the proper court for execution, and (ii) the final order passed on. an application made in accordance with law to the proper court to take some step in aid of execution. In view of our finding in the preceding paragraph, the limitation is saved by the first alternative. It will be recalled that the first application for execution was filed in time and Mr. Srivastava did not dispute the fact that that application was in accordance with law and had been made to the proper court. If, therefore, the first application was filed within three years of the date of the final order passed in the first appeal of the High Court, no question of taking some step in aid of execution of the decree arises in the instant case because the second application for execution was filed within three years of the dismissal of the first application. Even assuming that the question of some step in aid of execution would arise, we think that the view taken by the learned Subordinate Judge is correct, though for different reasons. Both the courts below have referred to a Bench decision of this Court in the case of Fateh Bahadur Singh v. Parmeshwar Prasad Sahu A.I.R. 1928 Pat. 145. In that case the final decree was passed on the 31st August, 1919 and the first execution was started on the 1st August, 1921. The decree holder was directed by the executing court on the 5th January, 1922, to file written processes and indentifier's affidavit as to service of notice under Order 21, Rule 22 of the Civil Procedure Code by the 12th January. The affidavit was filed, but the written processes were not filed on this date and the execution case was dismissed for default. Then a second execution case was filed on the 2nd January, 1925. The decree holder relied on the filing of the identifier's affidavit as step in aid of execution within three years prior to the 2nd January, 1925. It was held that the mere filing of the affidavit did not, in the circumstances of the case, amount to an application to the court to take a step in aid of execution, and, therefore, the second application for execution was time barred. The learned Subordinate Judge distinguished this decision on facts, holding that the filing of the requisites for notice in the first execution case was a step in aid of execution. On the other hand, the learned Additional District Judge took the view that the failure on the part of the decree holder to file the necessary requisites, as directed by the court in the first execution case on the 26th May, 1960, and subsequent dates did not amount to any application to the court to take some step in aid of execution. It appears that Clause (5) of Article 182 of the Limitation Act of 1908 was amended by Act 9 of 1927 which came into force on the 1st January, 1928. Before this amendment Clause (5) ran thus: