JOKHIRAM SAGARMAL Vs. CHAMAN CHOUDHRY

JUDGEMENT

(1.) These two appeals arise out of two proceedings for execution of decrees started in the Court of the Munsif of Banka. The decree-holders are different in the two cases, but the judgment-debtors are common. The facts are similar and the question involved in both of them is exactly the same, namely, whether the application for execution in each case was barred by limitation. The decrees were passed in suits of below Rs. 1,000 in value by a Deputy Collector of Deoghar, an officer appointed by the local Government under Section 2 of Act 37 of 1855. The Courts of these officers are not regular civil Courts. They are governed by procedures of their own prescribed by the Local Government under their powers of control and direction. They are commonly known as "Santal Courts." "Under the Schedule to Regulation 3 of 1872 some provisions of the Civil Procedure Code relating to the transfer of decrees are applicable to suits tried by these officers. The whole of the Code however is applicable to suits of over Rs. 1,000 in value which are tried by Courts established under the Bengal, Agra and Assam Civil Courts Act (12 of 1887). The two decrees in question were transferred by the Court which passed them to the Munsif of Banka for execution. Objections were taken by the judgment-debtors that the executions were barred under the special rules of limitation applicable to these decrees and being barred in the Santal. Parganas could not on transfer be executed outside. The objection has prevailed before both the lower Courts, and the decree-holders have preferred these miscellaneous appeals. Now the rules relied upon by the judgment-debtors are Rules 35 and 36 of the Judicial Rules to be found at p. 103, etc. of the Santal Parganas Manual. They run thus: 35. Execution of a decree shall be taken out within a year; and if the decree is not satisfied, execution may again be taken out at any time so long as it remains in force; provided that, if there is a return of no effects to three successive orders of attachment, the decree shall become void unless the Court executing it is satisfied that the judgment- debtor is fraudulently concealing property within its jurisdiction. If more than a year has elapsed since the date of the last application for execution, no action shall be taken until the judgment-debtor has been served with a notice calling on him to show cause against it. 36. A decree shall ordinarily become void, except as regards pending proceedings, at the end of three years from the date of the decree, or where an appeal has been filed, from the date of the appellate decree.

(2.) Proviso (b) to this rule runs thus: Where a decree permits payments by instalments or after a period of grace, the limitation of three years will commence from the date of the first default or from the conclusion of the period of grace allowed under the decree.

(3.) In one case (M.A. 323 of 1934) the decree which was passed on 16th September 1929 was an instalment one. The first fourteen instalments were paid up, but only a portion of the fifteenth instalment, which was due on 14 January 1930, was paid and thus there was a default on that date and thereafter. The application for transfer of the decree from Deoghar to Banka was made on 17th January 1932, and order for transfer was passed on 20 December 1932. The application for execution was made on 15 November 1933. In the other case, M.A. 324 of 1934, also the decree was passed on 26 November 1929, and was payable in instalments. A default was made in the payment of the instalment due on 28 August 1931. Application for transfer was made on 11 February 1933, order for transfer was passed on 16 February 1933 and the application for execution was passed at Banka on 15 November 1933.