AMULYA RATAN SADHUKHAN Vs. PREO NATH DUTT

JUDGEMENT

(1.) This is an appeal on behalf of the judgment-debtor against an order made in the course of proceedings in execution of a decree for money. The District Judge, in reversal of the decision of the Court of first instance, has held that the respondent is entitled to proceed with the execution of his decree.

(2.) The facts, so far as it is necessary to state them for the disposal of the question of law raised before us, lie in a narrow compass. One Uma Charan Sadhnkhan, the predecessor-in- interest of the appellant, held a mortgage-decree against the respondent Priya Nath Dutt. Proceedings were taken in execution of this mortgage-decree and the mortgaged properties were sold. Attempts were then made by the mortgagor to have the execution sale set aside. In the course of these proceedings, the objections of the mortgagor were overruled and an order was made in favour of Uma Charan for cists to the extent of about Rs. 59. This order war, made on the 3 December 1896. It was subsequently discovered that the mortgagee decree-holder had been overpaid from the sale proceeds and on the 2 January, 1904, an order was made in favour of Priya Nath, the mortgagor, for restitution of about Rs. 49. The position, therefore, was that Priya Nath held a decree for Rs. 49 against Uma Charan and Uma Charan held a decree against Priya Nath for Rs. 59. On the 8 January 1904, Uma Charan applied for execution of his decree for costs and obtained an order for attachment of the decree for restitution which had been made in favour of Priya Nath, The attachment was effected on the 23 March 1904, but it does not appear that any order was made, as might and ought to have been made, under Section 243 of the Code of 1882. If any such order had been made, the result would have been that the amount due to Priya Nath would have been set off against the amount due to Uma Charan. Apparently, however, the parties proceeded under Section 273 of the Code with the result that the decree of Priya Nath was attached. The Court, thereupon, directed Uma Charan to take further proceedings in execution of his decree. As no such steps were taken, the application of Uma Charan for execution was dismissed for non-prosecution on the 29 March 1904. On the 17 September 1908, Priya Nath applied for execution of the decree made in his favour for the sum of Rs. 49. Two objections were urged on behalf of the representatives of Uma Charan, who had in the meanwhile died; first, that the effect of the attachment made on the 21 March 1904 was the satisfaction of the decree held by Priya Nath; in other words, that although there had not been any express order of set-off, the intention and effect of the proceedings was a set off, with the result that the right of Priya Nath under his decree was extinguished; secondly, that in any view, the application for execution presented by Priya Nath on the 17 September 1908 was barred by limitation, inasmuch as it was made more than three years after the date of the last order for execution, that is, the 2 January, 1904. The Court of first instance held that the first of these contentions was substantially correct and directed that the decree sought to be executed by Priya Nath should be formally set-off against the decree held by Uma Oharan. In this view, the application for execution was dismissed. Upon appeal the District Judge has reversed this order. He has hold that as there was no express order for setting-off the decree for the smaller sum against the decree for the larger sum and as any application for execution of the decree for the larger sum would now be successfully met by the objection of limitation, no order of set-off could be made in the present proceedings. He has further held that the application for execution by Priya Nath, though made more than three years after the date of the last order for execution, was not barred by limitation, because during the period when the attachment effected by Uma Charan continued in force, it was impossible for Priya Nath to apply for execution of his decree. In this view the District Judge has directed execution to proceed.

(3.) The representatives of Uma Charau, against whom this order has been made, have now appealed to this Court, and on their behalf, it has been argued that even if it be assumed that any possible application for execution of their decree against Priya Nath would now be successfully met by the plea of limitation, a similar objection applies to the application for execution by Priya, Nath himself. It has boon contended that the only statutory provision, under which the bar of limitation might he sought to be removed, is Section 15 of the Limitation Act of 1877, which, however, is not applicable to applications for execution of decrees. In support of this position reliance has been placed upon the cases of Lntf-ul-Huq v. Snmbhudiu Puttnck 8 C. 248 : 10 C.L.R. 143; Kalyanbhai Dipchand V/s. Ghanashamlal 5 B. 29; Narayana V/s. Pappi Brahmani 10 M. 22 and Rajarathnam V/s. Shivahayawmal 11 M. 103. Keference has also been made to the cases of Dhukiram Srimani V/s. Jogendra Chandra Sen 5 C.W.N. 347; Wazid-un-nissa Khatoon V/s. Jagendra Chandra Sen 5 C.W.N. ceexxxn Sarup Ganjan. Singh V/s. Robert Watson and Co. 6 C.W.N. 735 and Thakur Prasad V/s. Abdul Husan 23 A. 13. It may be conceded at once that Section 15 of the Limitation Act of 1877 does not by itself apply to an application for execution of a decree. That section provides for exclusion of time in the computation of the period of limitation prescribed for any suit when the commencement of such suit has been stayed by an injunction or order. Section 3 of the Limitation Act defines the term suit, and exclude from its scope an appeal or an application. It cannot be seriously disputed, therefore, that the view indicated in the cases of Lutful Huq v. Shambhudin Pattuck 8 C. 248 : 10 C.L.R. 143; Rajarathnam V/s. Shivalayammal 11 M. 103 and Kalyanbhai Dipehand V/s. Ghanshalal Jodunathji 5 B. 29, namely, that Section 15 is inapplicable to applications for execution of decrees is well-founded. The other class of cases, upon which reliance was placed by the learned Vakil for the appellant, is of no real assistance to his contention, because no question really arose there about the effect and operation of Section 15 of the Limitation Act. In these cases an application for execution of a decree had been presented in the first instance and execution had been subsequently stayed by an injunction or order. Upon the dissolution of the injunction or withdrawal of the order, followed by an application for execution of the decree, the question was raised, whether or not the application could be treated as a revival of the previous application, the operation of which had been suspended by reason of injunction or other prohibitory order. The Courts held that in these circumstances, that is, when there had been a previous application for execution followed by an injunction or prohibitory order, the subsequent application for execution could rightly be treated as one in revival of the previous application. This view is in fact supported by the decision of the Judicial Committee in the case of Qamar-ud-din Ahmad V/s. .Taivahir Lal 27 A. 384 : 1 C.L.J. 381 : 15 W.L.J. 268 : 9 C.W.N. 601 : 2 A.L.J. 397 : 7 Bom. L.R 433, though the learned Judges of the Madras High Court in the case of Namyon Nanhi V/s. Pappi Brahmani 10 M. 22, appear to have overlooked this well recognized doctrine. In so far, therefore, as Section 15 of the Limitation Act is conceded, it is clear that it is of no assistance to the decree-holder.