PULIN BEHARI DAS Vs. SYED REASAT ALI

JUDGEMENT

(1.) This appeal is directed against the order of the learned District Judge of Sylhet, dated 10 March 1939, under which he dismissed an appeal against the decision of the trial Court, in which the learned Munsif directed that certain proceedings taken in Execution Case No. 362 of 1938 should proceed.

(2.) The main points urged on behalf of the appellants in this case are (1) that the application for execution was barred by limitation and (2) that the Courts below should have suspended all proceedings in execution on account of the fact that the appellants had approached the Debt Conciliation Board at Sylhet for the settlement of their debts, including the debt covered by the decree which was the subject-matter of the above-mentioned execution proceedings. The admitted facts of the case are briefly as follows : On 7 February 1934, the decree- holders obtained a decree against the appellants for the sum of Rs. 666. Thereafter, on 8th February 1937, the decree-holders put this decree into execution in Execution Case No. 91 of 1937. On 27 February 1937, an order was recorded by the Court to the effect that the application for execution was time-barred, but on the same day the decree-holders filed a petition for the reconsideration of this order under Section 151, Civil P. C. On 1 March 1937, the execution case was revived and the application for execution was duly registered, but two days later, this execution case was dismissed for de-fault. On 7 February 1938, the judgment-debtors applied to the Debt Conciliation Board at Sylhet for the settlement of the debts due from them to all their creditors and their application apparently included the debt due to the respondents under the decree in Money Suit No. 1569 of 1933. On 11 April 1938 it appears that the judgment-debtors produced before the Board a certified copy of the order, dated 27 February 1937, under which the decree-holders application for execution had been rejected as being time-barred, but they did not disclose the fact that a few days later this application had been restored on the decree-holders petition under Section 151, Civil P. C. After perusal of the order of the learned Munsif, dated 27 February 1937, the Debt Conciliation Board held that the debt due on the decree in Money Suit No. 1569 of 1933 was not subsisting as it was time-barred. On 5 May 1938 the decree-holders applied to the Board for a review of this order under Section 19, Assam Debt Conciliation Act but their application was rejected. On 13 September 1938, the decree-holders again applied to the Court for the execution of this decree and it was in connexion with this application for execution that the judgment-debtors raised two objections: (1) to the effect that the application for execution was barred by limitation and (2) that the civil Court had no jurisdiction to deal with the matter in view of the orders which had been passed with reference thereto by the Debt Conciliation Board. 2. As regards the question of limitation the main argument of the learned advocate for the appellants in this case is that the previous application for execution, which was filed on 8 February 1937, cannot be regarded as an application in accordance with law within the meaning of Art. 182 (5), Limitation Act, and he relies on certain irregularities connected with the filing of the application for execution, to which reference has been made in the judgment of the learned District Judge. For instance, it would appear that the correct number of the suit had not been mentioned and the amount for which the decree was passed was incorrectly given. The defects in the form of the application, such as they were, were not material and might easily have been remedied if the Court had followed the provisions of O.21, Rule 17 (1) of the Code, which it failed to observe. Moreover, the Court wrongly assumed that the application was time-barred, and in my view the order rejecting it which was made on 27 February 1937 was obviously illegal.

(3.) I am in entire agreement with the learned Judge in the opinion which he records to the effect that the execution proceedings in connexion with this matter were inefficiently conducted by the Court and the ministerial officers concerned. It would appear that, in connexion with this matter, no large measure of blame can be attached to the decree-holder and, in any case, the record shows that, on 1 March 1937, the application for execution was duly registered under the provisions of Order 21, Rule 17 (4), Civil P. C. The judgment-debtors took no steps to have this order for registration set aside and, this being the case, it must be regarded as a legal and valid order. In this connexion, it has been argued that the executing Court had no jurisdiction to revive the execution case on 1 March 1937 under the provisions of Section 151, Civil P. C. Having regard to the special circumstances of the case, I am not prepared to say that in this particular case the executing Court acted illegally in making the order under Section 151 of the Code but, in any event, if the judgment-debtors felt themselves aggrieved by this order, they should have moved this Court in revision under Section 115, Civil P. C, for its modification. This they failed to do. In view of the circumstances set forth above, I am of opinion that the proceedings in Execution Case No. 91 of 1937 were taken in accordance with law. The latter case was dismissed on 3 March 1937 and, as the application in the present case was filed on 13 September 1938, it is clear that the present execution proceedings were taken in proper time.