VALLABHDAS NARANDAS Vs. KANTILAL GPAREKH

JUDGEMENT

(1.) The parties have come before the Court on the hearing of a notice under Order 21, Rule 22. The facts leading to these proceedings are these: There were cotton dealings between the applicant and the respondent. Disputes between them were referred to arbitration and on 23- 3-1928, an award was made. That was filed on 19 April 1928. An application for execution was made and a notice under Order 21, Rule 37 was issued on 20 May 1928. When that notice came for hearing on 30 August 1928, a consent order was taken. The respondent agreed to pay the amount by monthly instalments of Rs. 200. It must be remembered that at the time of these proceedings the old Arbitration Act was in force. Under that an award could be executed as if it were a decree, without a decree being passed in terms of the award. On 22 July, 1933, a second application for execution was filed which also appears to have been for the arrest of the debtor. Notice under Order 21, Rule 22 was dispensed with, and on 25th July 1933, a warrant was ordered to issue. That remained unexecuted. The applicant filed the present application for execution on 29 June 1945. He has filled in the necessary particulars in the different columns as required by Order 21, Rule 11. In the last column headed "the mode in which assistance of the Court is required" it is written as follows: "By the issue of a, notice under Order 21, Rule 22, Civil P. C, against the respondent herein." In col. (f), where the applicant has to state the dates and nature of previous applications and the result thereof, he has set out the dates of the two previous applications and the fact that the warrant last issued was not executed. This application when lodged in the office was taken on file, and on 29 June 1945, the Prothonotary, under the powers vested in him by the High Court Rules, directed that notice under Order 21, Rule 22 should issue. That notice was issued on 28 July 1945, and has now come for hearing.

(2.) On behalf of the applicant, it is contended that the notice must be made absolute. He made his application for execution on 29 June 1945, which is within 12 years of the date of the last order, and therefore the application is in time. On behalf of the respondent, it is contended that the application for execution made on 29 June 1945 is not a proper application within the meaning of Order 21, Rule 11 and, therefore, the same must be rejected. If so, no notice can be issued under Order 21, Rule 22. It is contended on behalf of the respondent that the proceedings under Order 21, Rule 22 follow an application for execution, and it is not open to a decree-holder to write in the last column which provides for the mode of execution "By the issue of a notice under Order 21, Rule 22." It is argued that the issue of such a notice is not a mode in which assistance of the Court can be required. On behalf of the applicant, on the other hand, it is con-tended that when the judgment-debtor has no property and it is apprehended that under the amended law of arrest he will not be detained in prison, the only procedure by which the decree can be kept alive is by obtaining an order under Order 21, Rule 22. That will result in the revival of the decree, and under Article 183, Limitation Act the decree will not become time barred if an application for execution is made within 12 years after the date of revival. Two questions arise on this application: (1) whether an application for execution, in the last column of which is written "By the issue of a notice under Order 21, Rule 22, against the judgment-debtor," is a proper application for execution within the meaning of Order 21, Rule 11; and (2) whether the issue of a notice under Order 21, Rule 22, is a mode in which the Court renders assistance to the decree- holder.

(3.) My attention has been drawn to two judgments in this connection. One is my own judgment in 45 Bom. L.R. 400.1 In that case the specific question came to be discussed before me. On behalf of the creditors, it was contended that they did not know of any property which the debtor owned and which they could attach. They further stated that they had no materials on which they could press the Court to order the arrest and detention in prison of the judgment, debtor. Under the circumstances, they had no remedy except to apply to the Court to revive the decree in the hope that if the judgment-debtor acquired property thereafter the decree could be executed against him. On an enquiry made in the office of the Prothonotary it was reported to me that the statement in the last column, that a notice be issued under Order 21, Rule 22, was one of the normal statements. On the facts of that case, and on that report I held that there was nothing irregular in that application and the same should be considered a proper application for execution under Order 21, Rule 11. At that time my attention was not drawn to the judgment of the Appeal Court in 40 Bom. L.R. 676.2 In that case the applicant had obtained a decree in the Court of the First Class Subordinate Judge at Ahmedabad. The decree was against three defendants of whom the then respondent was one. When a notice under Order 21, Rule 22, was issued against the respondent, he contended that the decree was time-barred. The applicant relied on the fact that on 25 July 1934, he bad applied for execution of the decree to the Ahmedabad Court and an order was made on that date transferring the decree to the Bombay High Court for execution. It was argued that the application for the transfer of the decree to Bombay was a step-in-aid, and afforded a fresh starting point for the period of limitation. It must be noticed that the whole discussion there was in respect of Art. 182, Limitation Act. That portion of the discussion is not material in the present case. The application for execution contained in col. (j) the following: "By attachment under Order 21, Rule 54, Civil P.C. and issuing notice under Order 21, Rule 22, of the said Code." The notice came for hearing in Chambers before Engineer J., and he considered the words used in the last column in two parts: (1) by attachment under Order 21, Rule 54; and (2) by issuing notice under Order 21, Rule 22. It was observed that the first part was not in order as it did not give particulars of the property sought to be attached. As regards the second part, viz., issuing notice under Order 21, Rule 22 of the Code, the learned Judge was of the opinion that it was not one of the modes in which the assistance of the Court could be rendered within the meaning of Order 21, Rule 11. The matter went in appeal. Beaumont C.J., in dealing with the application, observed as follows (p. 681): All that appears in col. (J) the heading of which is mode in which assistance of the Court is required, are the words, By attachment under Order 21, Rule 54, Civil P. C, and issuing notice under Order 21, Rule 22 of the said Code. Without anything more to go upon it would have been impossible for the Court to execute the decree.