B K MITRA Vs. BHAJAN LAL CHAUDHURY

JUDGEMENT

(1.) The question involved in this appeal, which arises out of an execution proceeding, is one of limitation and it arises in this way. The decree under execution was passed by the Calcutta High Court on 11 July 1930 against one Shib Charan Trigunait. The present application for execution has been filed on 30 September 1942, in the Court of the Subordinate Judge of Dhanbad the decree having been transferred by the Calcutta High Court to the District Judge of Purulia for execution. The application having been made more than 12 years after the date of the decree, the execution would prima facie appear to be time barred but it has been contended on behalf of the appellant-decree-holders that there has been a revivor within 12 years as contemplated by Art. 183, Limitation Act. In support of this argument reference is made to an order made on 9 June 1931 by a learned Judge of the Calcutta High Court issuing a writ of arrest against the judgment-debtor. This order was preceded by a notice to the judgment-debtor under Order 21 Rule 37 (1) directing him to appear in person and show cause why he should not be committed to jail in execution of the decree passed against him. It is contended that the order of the learned Judge issuing the writ of arrest has the effect of a revivor. In my opinion, however, this argument cannot be accepted. It was pointed out in Jogendra Chandra Roy V/s. Shyam Das (09) 36 Cal. 543 that when the legislature used the term "revivor of judgment" in the Limitation Act of 1871 and 1877, they had in view the procedure embodied in Section 216, Civil P. C, of 1859 and Section 248 of the Code of 1877 and also the proceedings to revive then current in the Supreme Court, which were closely analogous to the (English) Common Law Procedure Act of 1852. The exposition of the expression "revivor" is so elaborate and complete in this decision that I do not think that I can usefully add to it and shall content myself with merely quoting the following observations of Mookher-jee J. with reference to the judicial writ known as scire facias which was counter-part of the expression revivor as used in the Limitation Act: The substance of the matter, so far as we are concerned, may therefore be thus stated : A scire facias is a judicial writ founded on some matter of record and having for its object the prevention of undue surprise by interposing itself as a warning between judgment and execution wherever a new party is to be charged opibenefited by sueh exeoution, whenever such execution is contingent, after judgment, on the existence of certain circumstances to be first proved by the party charging; and lastly, whenever execution has been delayed beyond the specified period (a year and a day under the common law) after the judgment was signed, that delay not arising from the party charged: Bighamon Judgment and Execution, p. 122, Freeman on Execution Vol. I, Section 81. If now we bear in mind the essential features of a writ of scire facias and of the result gained by a recourse to it, it is by no means difficult to identify it substantially with the procedure embodied in Section 248, Civil P. C, (Corresponding to Order 21 R 22 of the new Code). The object of this procedure as also of the procedure embodied in the corresponding Section 216 of the Code of 1859, was to give notice, so as to prevent undue surprise to a judgment-debtor when more than one year had elapsed between the date of the decree and the application for exeoution or when the decree was sought to be enforced against the legal representative of the party against whom the decree was originally made. It seems to us to be fairly obvious therefore that when the Legislature used the terms "revivor of judgment" in the Limitation Act of 1871 and 1877, they had in. view the procedure embodied in Section 216 of the Code of 1859 and Section 248 of the Code of 1877.

(2.) In my opinion therefore the order which is relied upon did not constitute a revivor. This view, however, does not conclude the present appeal. The decree which is under execution was an instalment decree and after stating that the total amount decreed is Rs. 3866-8-0 it provides as follows: (a) Defendant 1 will pay this day Rs. 1,000 towards the said sum of Rs. 3866-8-0 and the aforesaid sum of Rs. 250 for settled costs. (b) The balanoe sum of Rs. 2866-8-0 will be paid in instalments as follows, namely, Rs. 1000 plus Rs. 86 for interest thereon on 20 May 1930, Rs. 1000 plus Rs. 56 for interest thereon on 20 November 1930 and Rs. 866-8-0 plus Rs. 26 interest thereon on 20 May 1931. (c) In default of payment of any one instalment the plaintiff will be entitled to execute the decree for the balance of the said of sum of Rs. 3866-8-0 then remaining unpaid with interest thereon at6peroent. per annum.

(3.) Now, there can be no doubt that the sum of Rs. 1000 which was to have been paid on the date of the decree, namely, on 17 July 1930 cannot be recovered and the sum of Rs. 1000 which was to have been paid on 20 May 1930 cannot also be recovered, but the case is different in regard to instalments provided in the decree which were respectively of Rs. 1000 and Rs. 866 odd payable on 20th November 1930 and on 20 May 1931. The right to realise these amounts accrued to the decree-holders within 12 years of the date of the application and therefore they were entitled to execute this decree for these amounts under Article 183, Limitation Act., Mr. Ghosh who has argued this case with great ability, points out that there are two impediments in the way of the decree-holders in recovering these amounts. It is said that in the first place these amounts also became due on 11 July 1930 by reason of the last clause in the decree which provides that in default of payment of any one instalment the plaintiff will be entitled to execute the decree for the balance of the sum decreed. The peculiar feature of this decree is that although it purports to have been made on ll July, 1930, it provides that the first instalment was payable on 20 May 1930. The petition for execution states that no payment has been made by the judgment-debtor and therefore the whole of the sum of Rs. 8866-8-0 with interest was payable by him. Mr. Ghosh contends that that being so, the right to execute the entire decree accrued to the decree-holder on ll July, 1980 and therefore the decree is barred. This view might have been accepted at one time, but now it seems to be well settled that it is open to the decree-holder to waive the earlier instalments which fell due beyond the period of limitation. That being so, the decree can, in my opinion, be executed for the second and the third instalments.