CHANDA DEVI Vs. NATTHU SINGH

JUDGEMENT

(1.) The two connected appeals arise out of two suits Nos. 542 of 1930 and 544 of 1930. Both the suits were filed on the basis of two mortgage deeds. Mt. Chanda Devi was the plaintiff in the former suit and Mt. Sona Devi in the latter. The defendants in both the suits were common. The suits were decreed on 8th December 1930. The decree in suit No. 542 was made final on 13 September 1931 and in suit No. 544 on 24 October 1931. In the latter suit an application for execution was made on 3l March, 1932. On 19 April 1932, the Court ordered that a copy of the final decree may be produced. For reasons which will be noticed later, no further steps were taken by the decree-holder and the application for execution was accordingly dismissed. In the other suit no application for execution of the decree was made.

(2.) Two of the defendants instituted suit No. 90 of 1931 on 15 September 1931, praying that both the decrees may be declared null and void on the allegation that they were impleaded in both the suits as minors although they had in fact attained majority before the institution of those suits. The suit was decreed on 30 April 1932 and the Court declared that the decrees obtained in suits Nos. 542 and 544 were null and void. The plaintiffs appealed to the High Court. In appeal the decree of the trial Court was modified on 14 May 1936, and it was held that the decrees in both suits were null and void only with respect to a portion of the mortgaged properties and as against only the plaintiffs in suit No. 90 of 1931. In other words, the decrees were operative against the other defendants who were not plaintiffs in that suit. The decree-holder in suit No. 542, then applied for the execution of the decree on 9 October 1937 and the plaintiff in the other suit on 2nd October 1937. It is manifest that unless the period between 30 April 1932, that is, the date of the decree of the trial Court in Suit No. 90 of 1981, and 14 May 1936, the date of the High Court decree, is excluded, the applications would be time- barred. The judgment-debtors unsuccessfully raised the question of limitation in the executing Court, but in appeal their objection found favour with the learned District Judge who allowed the appeal and held that the applications for the execution of both the decrees were barred by time. The decree-holders have now come to this Court in appeal.

(3.) Learned Counsel for the appellants has relied upon Section 15, Limitation Act, in support of his contention that the period during which the appeal in the High Court against the decree in Suit No. 90 of 1931, was pending, should be excluded. Section 15 of the Act, provides: In computing the period of limitation prescribed for any application for the execution of a decree, the execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, shall be excluded. In our judgment, the Court below was right in holding that this section in terms does not apply. There was no injunction or order staying the execution of decrees in suits Nos. 542 and 544 of 1930. This section, however, assumes the existence of a decree which is capable of execution. The decrees in the suits in question were declared null and void by suit No. 90 of 1931 which rendered the two decrees entirely inoperative. It is argued that it was the duty of the decree-holders to make an application in the execution Court even though such application should have been abortive. It is manifest that if any applications were made they would have been rejected straightaway on the ground that the decree-holders had no executable decrees in their favour. The execution Court would not have passed an order staying the execution of the applications. It is inconceivable that the Legislature ever intended that in these circumstances the decree-holders would be forced to make the applications only to have them dismissed. The Law of Limitation would apply only if an operative decree were in existence. When no such decree exists the Limitation Act can have no application to it. Art. 182, Limitation Act, prescribes the time from which the period for the execution of a decree begins to run. Column 3 of that article provides: (1) The date of the decree or order, or (2)(where there has been an appeal) the date of the final decree or order of the appellate Court, or the withdrawal of the appeal.... The decree-holder is entitled to have full three years for the execution of his decree. If by the order of a competent Court the decree has been rendered a nullity, the period during which that order is in force must be excluded otherwise the period of limitation allowed to the decree-holder would be reduced to less than three years. In our opinion, there is no justification for such a reduction of time for the execution of a decree either in law or equity. In Sameshwar Singh V/s. Homeshwar Singh ( 21) 8 A.I.R. 1921 P.C. 31, their Lordships of the Privy Council observed: They are of opinion that, in order to make the provisions of the Limitation Act apply, the decree sought to be enforced must have been in such a form as to render it capable in the circumstances of being enforced. A decree so limited in its scope as that of 27 July 1906, under consideration cannot, in their opinion, be regarded as being thus capable of execution.... They are of opinion that when the Limitation Act of 1908 prescribes three years from the date of a decree or order as the period within which it must be enforced, the language, read with its context, refers only, as they have already indicated, to an order or decree made in such a form as to render it capable in the circumstanoes of being enforced. This interpretation appears to them not only a reasonable one in itself, but to be in accordance with the previously expressed opinion of this board in Shaik Kamaruddin Ahmad V/s. Jawahur Lal ( 05) 27 All. 334.