MADHUSUDHAN KOWAR Vs. GIRINDRA NARAYAN SINGHA

JUDGEMENT

(1.) The only substantial question argued in this appeal is one of limitation. The decree sought to be executed in the present proceeding was passed on the 13 June 1912. It was executed in 1915, and on the 12 June 1918 another application for execution was put in by the decree-holder. The judgment-debtor filed objections to the execution on the ground that he had satisfied the decree in full out of Court and that the decree was incapable of execution. These objections were heard and dismissed on the 21 February 1919 on which date the execution Court dismissed the execution also and passed the following order: Miscellaneous Case No. 200 of 1918 is rejected. This case " is dismissed." The judgment-debtor, however, appealed against this order dismissing his objections and the case was remanded by the appellate Court for rehearing. The miscellaneous case, started on the objection of the judgment-debtor, was reheard and again dismissed on the 20 May 1920. He again appealed against the second order of dismissal, and this appeal also was dismissed on the 4 April 1921. The present application for execution was filed on the 19 June 1922. It is, therefore, contended that since it was filed more than three years after the date on which the previous application was dismissed, namely, the 21 February 1919, the present application for execution was barred by limitation. Both the Courts below have held that the application filed on the 19 June 1922 was in continuation of the previous application dismissed on the 21st February 1919.

(2.) In order to appreciate the position of the parties and the various proceedings, it is necessary to understand the full import of the order passed on the 21 February 1919. The learned District Judge in the Court of appeal below has found that it is clear that the order of dismissal of the former proceeding of the 21 February 1919 was passed not for any default of the decree-holder but for the convenience of the Court, as the execution case was old. The effect of this finding is that the execution case was struck off or dismissed not for any fault of the decree-holder but to clear the file of the Court and to suit its convenience. That different interpretations can be put upon an order dismissing an execution case according to different circumstances was noticed so long ago as 1873 by the Judicial Committee of the Privy Council in the case of Puddamonee Dossee V/s. Roy Muthooranath Chowdhry [1873] 20 W.R. 133. In our judgment the order dismissing the execution case on the 21 February 1919 must be taken to mean that the defendant's objections having been dismissed, the decree was held to be capable of execution, and the Court, in order to keep its record in proper form, dismissed the case.

(3.) Reliance has, however, been placed in this connexion on the case of Kristo Coomar Nag v. Mahabat Khan [1880] 5 Cal. 595. That case apparently supports the appellant's contention. But the question on which the attention of the Court was centred on that occasion was whether the appearance of the decree-holder, as respondent in an appeal preferred by the judgment debtor against an order holding that the decree was liable to be executed, was a step-in-aid of execution. There has been a number of decisions subsequent to the Kristo Cooma's case [1880] 5 Cal. 595 and the law at the present moment has to be determined on a consideration of those decisions. There are two points which really have to be considered in deciding the question of limitation. The first is with regard to the interpretation to be put upon the order passed on the 21 February .1919; and secondly, how far the question of limitation is affected by the judgment-debtor appealing from the order passed against him on the 21st February 1919 and the final dismissal of the appeal. With regard to the first point the learned Judge of the Court below has held that the order of dismissal passed on the 21 February 1919 was not at the instance of the decree-holder but for the convenience of the Court. With regard to the second point we are inclined to hold on the authorities that the right to execute the decree was suspended by the subsequent conduct of the judgment-debtor. In support of this view reference may be made to the case of Qamar-ud-din Ahmad V/s. Jawahir Lal [1905] 27 All. 334, in which their Lordships of the Judicial Committee relied partly on the principle of suspension of the right to execute a decree; on account of proceedings pending in connection with it. The facts of that case are not exactly similar to the present, but the principle laid down therein may be applicable to the present case. There, a decree was sent to the civil Court by the Collector, before whom a sale of property was sought, for determination of the question as to whether the property was ancestral and liable to be sold in execution of the decree. The civil Court found chat the property was ancestral and ordered that the case should be struck off the file and the papers transferred to the Court of the Collector for the completion of the sale, proceedings on the decree-holder depositing the necessary costs for transmission of the order. The decree-holder not having deposited the necessary amount on the 23 December 1889, an order was passed by the civil Court that the papers should not be sent to the Collector for taking the sale proceedings. Meanwhile the judgment-debtor carried on the appeal up to the Privy Council against the decision passed against him as to the property being ancestral. These proceedings were finally disposed of on the 12 December 185. On the 23 November 1897 an application was made for revival of the execution case instituted in 1888. On these facts their Lordships held that the execution was not barred. On the ground that the order passed on the 23 December 1889 was not a final order, and also on the ground that if the appeal to the High Court against those proceedings and the judgment of that Court and the appeal to Her Majesty in Council rendered necessary by that judgment, had not intervened co interrupt the cause of execution, there Was nothing in the terms of the order to preclude the decree holder from coming again to the Court; and the application for execution made in 1897 was in substance as well as in form an application to revive and convey through a pending execution suspended by no act or default of the decree-holder and not an application to initiate a new one. This principle was reiterated by the Judicial Committee in Rameshwar Singh Bahadur V/s. Hameshwar Sing A.I.R. 1921 P.C. 31. The case of Ajodhya Nath Pahary V/s. Srinath Chandra Pahary [1922] 26 C.W.N. 338, is illustrative of the application of this principle. In that case though an application was made within three years from the last order of dismissal, the question whether the subsequent application was a continuation or revival of the previous application was considered. It was held that the order of dismissal in that case which was similar to the present case, should be treated as equivalent to an order for striking off the case or removing it from the file for the convenience of the Court; and the following passage was quoted with approval from the judgment in the case of Madnab Mont Dasi V/s. Pamela Lambert [1910] 37 Cal. 796. "An application for execution, of a decree may be treated as one in continuation or revival of a previous application, similar in scope and character, the consideration of which has been interrupted by the intervention of objections and claims subsequently proved to be groundless or has been suspended by reason of an injunction or like obstruction." The principle thus laid down is not a new one and was adopted in the case of Raghunath Sahay Singh V/s. Lalji Singh [1896] 26 Cal. 39. That case is a much stronger case than the present one. There a property was sold in execution of a decree whereupon the decree-holder made an application on the 12 November 1891 asking the Court to set aside the sale as the property was purchased in the benami of the judgment debtor The first Court found that the purchase was not benami and confirmed the sale. The appellate Court came to a contrary conclusion which was upheld by the High Court on the 4th August 1893. On the application for execution made on the 3 December 1894, objections were raised on the ground of limitation. There it was held that the last application must be held to be a continuation of the Application of the 12 November 1891 for re-sale of the property and that the time occupied in the proceedings relating to the nature of the sale though started by the decree-holder should be left out of consideration. Applying the principle laid down in these cases to the facts of the present case we must hold that the present application is not barred by limitation, firstly, on the ground that the order dismissing the execution case passed on the 21 February 1919 was not a final order in the sense that it barred the right of the decree-holder to continue the execution without presenting a fresh application for execution; and also on the ground, that the time occupied in the proceedings started by the judgment-debtor-appellant against that portion of the order of the 21st February 1919 dismissing his objection which terminated either on the 20 May 1920 when his objections were finally dismissed, or on the 4 April 1921 when the appeal from the order of dismissal was also dismissed, should either be deducted in computing the period of limitation or a fresh start of time should be reckoned from any of these dates.