JOGENDRA CHANDRA ROY Vs. SHYAM DAS

JUDGEMENT

(1.) This is an appeal on behalf of the judgment-debtor against an order for execution of a decree obtained by the respondents decree-holders against him on the 16 December 1891 on the Original Side of this Court. The decree was originally in favour of Balkissen Das Shyam Das, and Mathura Das and was for a sum of Rs. 11 044 with interest. On the 2nd January 1892, execution proceedings were instituted, in the course of which a sum of Rs. 824 was realised. On the 30 January 1897, a second application for execution was made and the decree-holder applied for attachment of the interest of the judgment-debtor in a decree passed in another suit. Notice was served on the judgment-debtor and an order for attachment was made. The judgment-debtor under that decree, however, was an insolvent and obtained his final discharge; no further proceedings were therefore, taken by the respondents on their application for execution. Subsequently Balkissen Das, one of the decree- holders, died, and on the 1 January 1903, the remaining decree-holders, one of whom had by survivorship acquired the interest of the deceased decree-holder applied to the Original Side of this Court for transfer of the decree to the Court of the District Judge of Hooghly, within the jurisdiction of which Court, it was alleged, the judgment-debtor resided and possessed properties. Notice was issued under Section 248, Civil Procedure Code of 1882, upon the judgment-debtor on the 31 January 1903 and as no cause was shown on his behalf, an order was made on the 10 August 1906 for the issue of the necessary certificate. The decree was then transmitted to the Court of the Subordinate Judge, and on the 17th August 1906 the decree-holders presented in his Court the usual application for execution. Notice was issued upon the judgment-debtor who appeared on the 8 December 1906 and objected to the execution substantially on the ground that the decree under execution was barred by limitation and also alleged that the property sought to be attached belonged to a religious endowment and was not liable to be sold in execution. The Subordinate Judge overruled these objections and ordered execution to proceed. The judgment-debtor has now appealed to this Court and on his behalf the decision of the Subordinate Judge has been challenged on four grounds, namely, first, that as the judgment-debtor has been declared an insolvent and all his properties have been vested in the Official Assignee, execution cannot proceed; secondly, that the application for execution is barred by limitation under Art. 180 of the second schedule of the Limitation Act of 1877; thirdly, that as one of the decree-holders had died, the other decree-holders could not proceed with execution till they had made an application for substitution, which if made could be entertained only by the High Court, and fourthly, that as the decree-holders had in the second execution proceedings obtained an order for attachment of a decree in which the judgment-debtor was the decree-holder and as by reason of their default the interest of the judgment-debtor in that decree had been extinguished, the decree-holders should not be allowed to proceed with the present execution. We shall consider these objections in the order in which we have stated them.

(2.) In support of his first ground, the learned vakil for the appellant has invited our attention to an order made by this Court in its Insolvency jurisdiction on the 9 April 1878 by which the appellant Jogendra Chandra Roy was declared an insolvent and his assets were vested, in the Official Assignee. There are no materials, however, on the record to show what has happened since 1878. Nor is there anything to show that the appellant has obtained his final discharge. This particular ground was not urged in the Court below, and all we need observe, is that upon the materials on the present record, the appellant has not "satisfied us that he is entitled to protection from execution under the decree obtained by the respondents. The first objection taken on behalf of the appellant must consequently be overruled.

(3.) The second ground urged on behalf of the appellant is that the application for execution is barred by limitation under Art. 180 of the Limitation Act of 1877. That Art. provides that an application to enforce a judgment, decree or order of any Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction must be made within 12 years from the date when a present right to enforce the judgment, decree or order accrues to some person capable of releasing the right, provided that (we quote so much only of the section as has any application to the case before us) when the judgment, decree or order has been revived, the twelve years shall be computed from the date of such revivor. The learned vakil for the appellant argued that there is no provision under the present law for the revivor of a judgment, decree or order, and that in any event, there has not been in the present case such a revivor as is contemplated by the Limitation Act. He candidly conceded, however, that his contention was opposed to a series of decisions of this Court, namely, the cases of Ashutosh Dutt V/s. Doorga Churn Chatter jee (1880) I.L.R. 6 Calc. 504, Futteh Narain Chowdhry v. Chundrabati Chowdhrain (1892) I.L.R. 20 Calc. 551, Suja Hossein V/s. Monohur Das (1896) I.L.R. 24 Calc. 244. It was also not disputed by him on behalf of the appellant that the rule laid down in these cases had been accepted as good law by the Madras High Court in Ganapathi V/s. Balasundara (1884) I.L.R. 7 Mad. 540 and by the Allahabad High Court in Umrao Singh V/s. Lachmi Narain (1904) I.L.R. 26 All. 361 and in Beni Madho V/s. Shiva Narain (1907) 4 All. L. J 405. The learned vakil for the appellant, however, strenuously contended upon the authority of the observations of Mr. Justice Wilson in the case of Tincowrie Dawn V/s. Debendro Nath Mookerjee (1890) I.L.R. 17 Calc. 491 that those decisions were erroneous; and he also placed reliance, to some extent, upon the cases of Monahar Das V/s. Futteh Chand (1903) I.L.R. 30 Calc. 979 and Suja Hossein V/s. Manohur Das (1895) I.L.R. 22 Calc 921 which latter, however, was subsequently set aside on review, the judgment on rehearing Suja V/s. Monohur (1896) I.L.R. 24 Calc. 244 negativing the contention of the present appellant. In this state of the authorities, the learned vakil for the appellant invited us to consider the matter upon principle in view of a possible reference to a Pull Bench.