AMULYA RATAN BANERJEE Vs. BANKU BEHARI CHATTERJEE

JUDGEMENT

(1.) This appeal arises out of a proceeding in execution of a decree passed in the Original Side of this Court. It is necessary to give a short history of the litigation. The decree was passed on the 25 July, 1904. In 1905, it was transmitted to the Hughli Court for execution which ended on the 16 November 1905, according to the Court below, but on the 20 January 1906 according to the certificate issued by this Court and printed at page 34 of Part II of the paper- book. On the 19 November, 1917, the respondent decree-holder again applied for execution and notice was served upon the appellants on the 19 December 1917, and the execution case was struck off on the 21 December 1917, with a remark "dismissed for want of prosecution." The application for the present execution was presented on the 17 February 1921, and it was prayed that certain properties belonging to the appellants father might be attached in execution of the decree. The appellants who are the present judgment-debtors raised various objections to the execution of the decree. The learned Subordinate Judge in the Court below overruled all those objections and held that the decree was capable of execution and ordered attachment of some of the properties mentioned in the application for execution and released some other properties holding that they were not in the occupation of the judgment-debtors. The judgment-debtors have appealed and two points have been taken by them. They urge, in the first place, that the execution is barred by limitation under Art. 183 of the first schedule to the Limitation Act of 1908; and, in the second place, it is contended that the decision of the Court below that the properties which it has ordered to be attached as belonging to the appellants father is wrong. There is also a cross objection by the respondent with reference to the properties released by the lower Court.

(2.) We have heard both the parties on the first question raised in the appeal, namely, that of limitation and we think that this plea ought to succeed. We do not think it necessary to enter into the second point raised before us. The learned Subordinate Judge has, according to both the parties, misconceived the facts of this case so far as they relate to the objection on the ground of limitation. Ho has further fallen into error in confusing the provisions of Articles 182 and 183 of the Limitation Act; or, in other words, treated the expression "step in aid of execution" as used in Art. 182 as co-extensive in meaning with the term revivor under Art. 183. He found that the execution case of 1905 was finally dismissed on the 16th November 1905. The second execution case of 1917 was started on the 19 November 1917, and so the execution of 1917 was clearly barred by limitation. But as the decree-holder applied to the High Court for transmission of the decree to the Court at Howrah in October 1917, which act of the decree-holder the learned Judge considers to be a step-in-aid of execution, he holds that the execution in 1917 was not barred by limitation. He has not considered whether the present execution was affected by limitation. Both sides have been unable to support the reasoning of the learned Subordinate Judge. The appellants do not challenge the execution in 1917 because it appears from the documents filed in the case that the previous execution was finally disposed of on the 20 January 1906. But their main contention is that the execution taken in 1917 did not operate as a revivor within the meaning of Art. 183, Limitation Act and that the execution taken in 1921 (the present execution) was beyond 12 years from the date of the last effective execution and therefore barred. That article provides a period of 12 years within which execution should be taken of a decree or order of any Court established by Royal Charter in the exercise of its Ordinary Original Civil Jurisdiction; and the time is to be reckoned from the date when a present right to enforce the judgment, decree or order accrues to some person capable of releasing the right. There is no dispute that the right to execute the decree accrued immediately it was passed, namely, in July 1904. The first execution was disposed of finally in January 1906 and the present execution was started in 1921. It is plain that the present execution is barred by limitation unless the respondent succeeds in proving that some act done by him in the meantime by operation of law constituted revivor within the meaning of that article. The respondent's case is that the proceeding taken in connection with the execution in 1917 did operate as revivor. It is therefore necessary to examine closely the whole proceedings. On the 19 November 1917, the decree-holder filed an application for execution in the Court of the Subordinate Judge at Hughly in which he prayed that the present appellants might be substituted in place of Hiralal, the original judgment-debtor who had died before that date and also for further execution. On that application notices were issued upon the present appellants under Order 21, Rule 22, Clauses (a) and (b), Civil Procedure Code as the application for execution was made more than one year after the date of the decree and because it was prayed that the appellants might be substituted in place of the deceased judgment-debtor. The notices were served on the appellants on the 19 December, 1917. There is no evidence that any further step was taken in the matter till the 21 December, 1917, on which date an order was passed which is entered in the certificate of execution as " dismissed for want of prosecution on the 21 December, 1917." The actual order that was passed has been placed before us by the respondent. It is in the following words: " 21 December, 1917. Notice has been duly served and proved by an affidavit. No further steps taken to-day. Execution case is dismissed for want of further prosecution." We have therefore two circumstances to take into consideration in determining whether the execution proceedings of 1917 amounted to a revivor. The first is the application to this Court made in October, 1917, for transmission of the decree to the Hooghly Court; and the second is with reference. to the notice on the appellants under Order 21, Rule 22, Civil Procedure Code. The learned vakil for the appellants has argued that none of these circumstances would amount to revivor within the meaning of Art. 183 of the Limitation Act, and he has relied on the Full Bench decision of this Court in the case of Chutterput Singh V/s. Sait Sumari Mull (1916) 43 Cal. 903. "We think that this contention ought to prevail. The learned Counsel appearing for the respondent has not questioned the proposition of law that an application for transmission of a decree does not operate as revivor within the meaning of Art. 183, though it may be a step-in-aid of execution under Article 182, but he has maintained that service of notice under Order 21, Rule 22, Civil Procedure Code operates as revivor of the decree under Art. 183. He has further contended that the order passed by the Court on the 21 December 1917 dismissing the execution case for want of prosecution virtually implies that the decree was capable of execution and therefore it was an order by the Court determining that the decree is enforceable. This latter argument may be summarily dismissed. The definition or explanation of revivor is to be found in certain observations made in the case of Kamini Debi V/s. Aghore Nath Mukherji (1909) 11 C.L.J. 91 and adopted by the learned Chief Justice in his judgment in the Full Bench case. The dictum is to the following effect: " The essence of the matter is that to constitute a revivor of the decree,] there must be expressly or by implication a determination that the decree is still capable of execution and the decree-holder is entitled to enforce it." It must therefore be taken as settled that in order to operate as revivor there must be a determination either in express terms or by implication that the decree is still capable of execution. We are unable to go the length of holding with the learned Counsel that an order dismissing a proceeding can imply that the decree is capable of execution. In the present case the appellants did not appear after the service of the notice under Order 21, Rule 22. But supposing that they had appeared and objected to the execution on the ground that the decree was barred by limitation, it would not be consonant with common sense to interpret the order dismissing for want of prosecution as holding that the objection of the judgment-debtor that the execution was barred by limitation was impliedly overruled and the decree was held capable of execution. To give such an interpretation to these words is to hold that an order dismissing a case or a proceeding may in some cases be tantamount to decreeing it.

(3.) The next question relates to the effect of service of notice under Order 21, Rule 22. This point was, no doubt, not directly under consideration in the Full Bench case of Chuttetput Singh V/s. Sait Sumari Mull (1916) 43 Cal. 903, but it was observed in the course of the judgments delivered by the learned Judges, and we think rightly held, that it would not constitute revivor. In that case an application for transmission of the decree was made before the Registrar of this Court under a certain rule framed in the Original Side of the Court. By virtue of that rule the Registrar issued notices on the judgment-debtors under Order 21, Rule 22. It was held in that case that the Registrar had no jurisdiction to issue the notices under that order. It was also held that even if the notices were rightly issued by him, the mere service of notice under Order 21, Rule 22 was not sufficient to revive the decree. We have, however, a direct authority on this point in the case of Manohar Das V/s. Futteh Chand [1903] 30 Cal. 979. That case is sought to be distinguished on the ground that no notice was served in that case. That circumstance in our opinion, makes no difference As has been pointed out by Mr. Justice Mookerjee in the Full Bench case the provisions of Order 21, Rule 22 clearly indicate that the mere issue or service of notice under that rule cannot be sufficient to declare a decree capable of execution so as to constitute revivor under Art. 183, Limitation Act. The object of that notice is to invite the person on whom it is served to show cause on a date to be fixed why the decree should not be executed against him. The absence of any objection on his part or his non-appearance would not amount to a determination that the decree is enforceable. A further act has to be done by the Court and it must be at the request of the decree-holder and that is mentioned in Rule 23 of that order. It runs as follows: " "Where the person to whom notice is issued under the last preceding rule does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed." This further order is necessary for the purpose of determining that the decree may be executed or is capable of execution. Admittedly no such order was passed in this case. We are accordingly of opinion that the mere issue and service of notice under Order 21, Rule 22 do not amount to a revivor of the decree.