AKSHOY KUMAR ROY CHOUDHRY Vs. ABDUL KADER KHAN

JUDGEMENT

(1.) This is an appeal by the decree-holder against; an order of the learned District Judge of Khulna dismissing an application for execution preferred by him and reversing the order of the Munsiff of Bagerhat. The facts o? the case are rather complicated and they have been stated elaborately in the judgment of the learned Judge. There were various proceedings between the decree-holder and the judgment-debtor which 1 do not think is necessary to relate for. the purpose of this appeal, as in my judgment this appeal may be disposed of on one of the grounds dealt with by the learned District Judge. The facts relevant for understanding that point will only be stated by me. A consent decree was obtained by the appellant as against the respondent on 8 March 1915. The decretal amount was payable in 12 instalments and there was the usual provision that in default of payment of one instalment the whole amount would be due. The judgment-debtor made payments till 1920, the last payment being on 7 May 1920. It is not necessary to relate for the purposes of this judgment the intermediate proceedings which took place between the parties as regards the decree being made final as the original decree was a decree on a mortgage. On 9 December 1921 an application for execution was made by the appellant. The properties belonging to the judgment-debtor were sold on 23 February 1922 and a third person became the auction-purchaser at the sale. The judgment-debtor applied for setting aside the sale and it was set. aside on 5 July 1923. The auction-purchaser preferred an appeal against that order which was confirmed by the appellate Court on 29 March 1924. The present application out of which this appeal arises was made for execution by the appellant on 15h December 1926. The learned Judge has held that this application was barred on these facts. It is only necessary to state that the learned District Judge held that the application was unsustainable on other points; but it is not necessary for me to state them now as, in my view, the case can be disposed of on this short point.

(2.) On behalf of the appellant Mr. Roy Chowdhury has argued that the learned Judge was in error in holding that the application was barred by limitation and in support of his contention he relies mainly upon two cases which are relevant to the point, the first of them being the case of Sheikh Kamaruddin Ahmad V/s. Jawahir Lal [1905] 27 All. 334. I do not think that upon the facts of that case the principle laid down there can be said to apply to the present case. What happened in that case was this: The decree-holder applied for execution of his decree and notwithstanding the objections by the judgment-debtor, an order was made on 18th December 1888, that the execution should proceed. Certain orders were made as regards the execution which, according, to the procedure in the North-Western Provinces, could be carried on only by the Collector. While those execution proceedings were pending and at an early stage of their progress, on 15 February 1889 an appeal was brought, in the High Court against the original, order of 18 December 1888 under which the execution proceeded. The High Court on 7 January 1890 allowed that appeal on grounds which is unnecessary to relate. On a further appeal to Her late Majesty in Council that decision of the High Court was reversed, the judgment of the Board being delivered on 24 November 1894, and embodied in an order in Council of 12 December 1894. Then an application was made by the decree- holder to proceed with the execution of his decree on 23 November 1897, and the application asked by its terms that the execution case instituted in August 1888 which was sent to the Collector's Court on 23 December 1888 may be revived. The objection of the judgment-debtor was that the application was barred by limitation. The High Court held that it was not a fresh application but one praying the Court to revive the suspended order and permit it to be pushed through to completion. The judgment-debtor appealed to the Privy Council and their Lordships hold that the application was not barred. Their Lordships observed as follows: 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 to interrupt the course of the execution, there was nothing in the terms of the order to preclude the decree-holder from coming again to the Court, satisfying the conditions indicated in the order, and obtaining the transmission of the case to the Collector's Court.

(3.) What their Lordships said referred to the fact that on appeal by the judgment-debtor the High Court held that the decree could not be executed. When that order stood, the decree- holder could take no steps in execution and it was only by an appeal to the Privy Council which reversed the decision of the High Court that the decree-holder was able to proceed with the execution and, therefore, under these circumstances, their Lordships observed that these orders had intervened to interrupt the course of the execution. In the present case, there is nothing to interrupt the course of the execution after the sale was set aside on 5 July 1923. It is argued by the learned advocate that because the auction-purchaser appealed against the order of 5 July, the whole thing was let loose and the execution proceedings were continuing and, therefore, the decree-holder was prevented from making the application. I do not think that that argument is sound. Rule 5, Order 41, Civil P.C., provides that an appeal shall not operate as a stay of proceedings and an appeal by a third party cannot, in my opinion, prevent the decree-holder from making a fresh application for execution, of his decree. The learned advocate next referred to the case of Jira Bibi V/s. Majiruddin A.I.R. 1921 Cal. 594. There, a sale was held on the application of the decree-holder on 3 May 1909 when the decree-holder himself became the purchaser. The usual application by the judgment-debtor for setting aside the sale was made and the sale was set aside on 14 February 1911. The learned Judges said that the position then was that no proceedings in execution could be taken so-long as the sale was in operation from 3 May 1909 to 14 February 1911. There cannot be any question that when, the sale was in operation in execution of the decree of the decree-holder, he cannot prefer a fresh application for execution of his decree.