KARTIC CHANDRA MONDAL Vs. NILMANI MONDAL

JUDGEMENT

(1.) The facts upon which this appeal arises have only to be stated to show that the principles which have been held by the Courts in India to relieve decree-holders of their duty to bring the application for execution within three years of the last application do not apply to this case. After numerous applications for execution of a decree which was passed in December 1901, the 4th application was made on the 21st July 1908 in Execution Case No. 1443 of that year. On the 16th September 1908 the present respondent, the judgment-debtor, applied before the Court stating that the decree had been satisfied by payment which should be certified. On this a miscellaneous case was started. It appears that on the same day substitutions were made of an heir of one decree-holder and of one judgment-debtor and notices were issued under Section 248, Code of Civil Procedure, fixing the 4th of November for hearing of the execution case. The miscellaneous case came up again on the 31st October and it was ordered that the execution case should come up too on that date. But in the mean while on the 4th. November the decree-holder took no step after service of notices under Section 248, and the execution proceeding was, therefore, struck off on the 5th November. Meanwhile the miscellaneous case as to certifying the payment was continued and the Munsif allowed the judgment-debtor s application on the 17th July 1909. So far, therefore, the principles laid down in the cases which we had to consider would apply for the benefit of the decree-holder. But on appeal the finding of the Munsif was reversed by the learned District Judge on the 6th August 1909 and it was declared that the decree-holder had not been paid anything and that it was open to him to execute the whole decree. He took no step to renew the application for execution. Sometime afterwards the judgment-debtor appealed to the High Court. This appeal was rejected on the 11th January 1912. The present application for execution was not made till the 12th September 1913, that is, nearly two years after the High Court s decision.

(2.) It is contended that the decree-holder is entitled to the whole period during which he was bona fide litigating or resisting the judgment-debtor s application to have the satisfaction certified. Reference is first made to Section 14 of the Limitation Act. It is, however, frankly conceded that that section can have no application, inasmuch as there was no proceeding in another Court which proved fruitless for want of jurisdiction or some similar cause. We are then referred to what is said to" be a general principle that a decree-holder is not bound to proceed with execution during the pendency of an appeal and that the limitation under Article 182 should apply and the present proceedings should be considered to be in continuation of the previous application. As regards the first branch of this contention, the authorities which have been laid before us do not seem to go further than to deal with the particular facts of the cases then before them and to hold that when a decree-holder is obstructed by violence or fraud and litigation is necessary to get rid of such obstruction the execution is suspended during such litigation. It is nowhere laid down that mere pendency of an appeal from a decision which has removed all obstacles from the decree-holder s way can give him a right to defer execution for an indefinite period; and were we to hold so the parties could spend three years in the High Court and six years in the Privy Council and the decree-holder would be able to revive his execution after a lapse of more than 12 years. The case which goes nearest to the general proposition put before us is a decision in Sheikh Mahomed v. William Alfred Thomas 11 Ind. Cas. 972, which is not reported. But the general proposition therein laid down is limited by the consideration of the facts of that case and the learned Judges who decided that case added a rider to the general proposition that a decree-holder can have his rights suspended, more especially when the amount for which execution has been taken is, contingent on the decision in appeal. Here there was no contingency at all. The District Judge had given the decree-holder a right to execute the decree in full and at that time there was no knowing wether the judgment-debtor would appeal or would not appeal. The mere fact of appealing could not possibly take away the decree-holder s right. Not could it relieve him of the ordinary duty of a decree-holder. There was absolutely no reason in our opinion why he should sleep on his right pending the appeal to the High Court, which in the end made no change whatever in the District Judge s order. The responsibility for getting the execution stayed for that period was with the judgment-debtor and had the decree-holder taken out execution it would have been open to the judgment-debtor to apply to this Court for a stay. This Court might have refused to stay. But for the decree-holder to say that he was in no way bound to take out execution of the decree after the order of the District Judge appears to us to be wholly untenable. The observation of Mr. Justice Banerjee and Mr. Justice Geidt in the case of Ashrafuddin Ahmed v. Bepin Behari Mullick 30 C. 407 at p. 413 and the principle laid down by Mr. Justice Mookerjee in the case of Madhab Moni Dasi v. Pamela Lambert 6 Ind. Cas. 537; 37 C. 796; 12 C.L.J. 328; 15 C.W.N. 337 make it quite clear that where there is no intervention of fraud or force which prevented the consideration of the previous application, there is no suspension of execution.

(3.) Now with regard to the contention that the present application may be regarded as the continuation of the previous application, we need only point out that the previous application was finally disposed of on the 5th November 1908. So that that branch of the contention has no substance in it.