‘
ANANDILAL & ANR.
RAM NARAIN & ORS. May 10, 1984 [A.P. SEN AND V. BALKRISHNA ERADI, JJ]
Limitation Act 1908 s: 15 (1) and Code of Civil Procedure 1908 5. 48.
’ Execution of decree Partial stay of—~Decree holder whether entitled to elim - . exclusion of period in computation of limitation. ; L ;
- Words and Phrases : Execution” —Meaning of—S. 15 -(1) Limitation Act 1908. .* - _ 7 : ;
The predecessor-it title of respondent No. 1 obtained -a decree against.
the predecessor-in-title- of respondent Nos. 2 and 3. .The decree was affirmed by the State High-Court on April 5, 1938. During the pendency of the appeal, the High Court stayed execution of the decree under Order XLI,
“r. 5 of the Code of Civil Procedure ‘on .condition that the appellents- defendants furnished security for the'due satisfaction of ‘the decree. _Agaiost the decree passed by the High Court the defendants preferred an appeal before the’ Judicial Committeé of the State. --In.the. appeal, the Judicial
. Committee, passed an interim order d2ted August 16, 1940 directing that until further orders ‘the properties attached in execution shall continue to remain under attachment but further proceedings ‘for theesale thereof shall remain stayed. On ‘ ‘Navomber 24, -1944 thé Judicial Committee dismissed the ‘Said appeal ani the interim stay. stood dissolved. ; Respondent No. 1° who had Purchased the decree from the heirs of the original decree-holder resumed the execution of tho decree. The execu-
“tion application filed by him was dismissed for default on June 11, 1945, restored On December 14, 1946 but again dismissed for default on January 21, 1954. Thereafter, a fresh application for execution was filed on February 18, 1954. This application was opposed by the surety- -appeljants. on the ground that it was barred by limitation having been filed beyond the
; Period of 12 years prescribed by s. 48 of the Code of Civil Procedure.
The District. Judge rejected the objection by the appellants ‘holding that although the stay of execution was partial as only sale of, the attached.
properties ‘had been stayed by ine Judicial Committee, the decree-holder
- was entitled to the benefit of s: 15 (1) of the Limitation Act, ad
~~
$03, Chanbasappa v. Holibasappa, ILR (1924) 48 Bom. 485, and Kirtyanand Singh v v. Prithi Chand Lal, AIR 1929 Pat. 597, reversed, :
. . .* ANANDILAL vy. RAM NARAIN
"The appellants preferred an appeal before the. High Court which was the one granted by the Judicial Committee only postponed the sale of the attached properties and did not -havé the effect of making the decree
807 :.
“allowed by a Single Judge, who held that an order of partial stay like inexecutable and therefore s. 15 wo of the Limitation Act was not attracted. .
Respondent No. 1 preferred a Letters Patent ‘Appeal and a Full Bench
_ of the High Court held that the word | “execution” ins. 15 (1) must be construed i in a broad sense, that it did not exclude a partial Stay of execu- | tion ‘aed’ therefore the decree-holder was entitled to the” exclusion of the period . from August | 16, 1940 to November 24, 1944 under s. 15 (1) of the Limitation Act for computation of the period of 12 years prescribed | under s..48 of the Code of Civil Pr ocedure. ,
Dismissing the Appeal to this Court,
HELD.: 1. The word “execution” in s:.15: (1) embraces all the appropriate means by which a decree is enforced. It includes all processes
, and proceedings in-aid of, or supplemental to execution. [8148] . a se
2. There is no rational basis for adopting a natrow and’ restricted construction on a beneficient provision like s. 15 (1). There is no reason why s..15 (1) should be given a restricted meaning as allowing the benefit to a decree- holder where there is a complete or absolute stay of execution, and not a ‘partial stay i. e. a stay ~which makes the decree altogether inexee _ s cutable. [814C].
3. Stay of any process of execution is stay of execution within the ameaning of s. 15°(1). Where an injunction or order has ‘Prevented the devee-holder from executing the decree, then irrespective of the particular
’ stage of execution, or the’ particular property against which, or the parti- | cular judgment- -debtor against ‘whom, execution was Stayed, the effect of such injunction or order is to prolong the life of the decree. itself. by the. period during which the injunction or order remained i in force, ‘[si4D. EB]
Kundo Mal & Ors. y. Firm Daulat Ram Vidya Prakash, AIR 1940 Lah. 75, Virchand Kapur Chand vy. Marualappa & Anr., AIR 1944 Bom,
Bai Ujam v. Bai. Ruxmani, AIR 1914 Bom. 211 and Govindnash
Chaudhuri v. Basiruddin Mondal, AIR 1921 Col. 606, and ‘Sitaram and -
Others v. - Chuntilalsa ILR 1944 Nag. 250 approved.
* Kiet yanand Singh v. Prithi ‘Chand Lal, AIR ‘1933 PC 52 explained,
808 -
_ Question of law, the High Court has granted a certitica
SUPREME COURT REPORTS ~~ '—[1984} 3. s.c.R.
Civ, APPELLATE JURISDICTION : Civil ‘Appeal No. 109 of 1971.
¥
~ Appeal: by: Certificate from the Judgment and Decree. dated
17th October, 1969 of the Madhya Pradesh -High Court, in Letters Patent Appeal No. 160f 1962 0°: Lo
- V.A. Bobde and A.G.Ratnaparkhi for the appellants. S.S: Khanduja for the. respondents. oe ‘The Judgment of the Court was delivered by
SEN, J. The short point involved in this appeal by certificate.
from the judgment and order of a Full Bench of the Madhya Pradesh -
High Court dated October 17,1969 is whether a partial stay of execution of the decree like the one in question staying sale of the - . attached property is within sub-s (1) of s. 15 of the Limitation Act, 1908 so as to entitle the decree-holder to claim exclusion of the period during ‘which there was stay of sale but the property was to continue under attachment,. for the purpose of computation of the petiod of limitation provided by s. 48 of the Code of”
Civil Procedure, 1908. Since the question involved is a substantial — te of |. fitness Under Art. 133 (1) (Gf of the Constitution. _ |
' tangle them to bring out the point in controversy. One Ghasiram, dents Nos. 2°and 3 Chunnilal and Anandilal, now the Judgment- -debtors. The decree was affirmed in appeal by the Gwalior High Court ‘on April. 5, 1938. During the pendency of the appeal, the High
. for the due’ satisfaction of the decree. Ratanlal, father of the two the predecessor-in-title of the present respondent No. 1 Ram Narain | obtained a decree for Rs. 5,548.18 p. from the Court _of the District >
Judge, Ujjain against one Bheraji, the predecessor-in-title of 1espon-
Court stayed execution of the decree usider Order XLI, r. 5 of the Code on condition. ‘that the appellants-defendants furnished -security appellants Anandilal and Jankilal; executed a surety dated August 3,
1927. Against the decree passed by the High Court, the defendants
' preferred a revision before the Judicial Committee of the Gwalior
State which came to be dismissed on February 14, 1941. While the revision’ was pending: before the Judicial: Committee, the decree- holder Ghasiram put the decree in execution against the judgment.
~ debtors as also against the surety on February 23, 1939 for attachment and sale of their immoveable properties. It appears that some
- Facts are somewhat complicated but it is necessary to disen- .
t pee.
ANANDILAL y. RAM NARAIN (Sen, J.)
Tea shousés and certain zamindari. lands of the surety Ratanlal were attached in execution of the decree. He. raised ‘objections to the attachment of his property but the same were rejected on - December
“809
9, 1939. Against the order dismissing his objectioms, ‘the: surety
Ratanlal filed an appeal before the Gwalior High Court which was dismissed on July 22, 1940. He then filed a Miscellaneous Appeal before the Judicial Committee of th? Gwalior State.
It is common ground ‘that i in that avpeal the Judicial Co: mmittee _ passed an. interim order dated August 16, 1940.directing that until further orders: the properties attached in execution shall contifue toremain under attachment but further’ proceedings for the sale thereof shall remain stayed. On November 24, 1944 thie- Judicial
Committee dismissed the said appeal and consequently the intcrim © stay stood: dissolved. Thereafter, the present respondent No. 1
Ram Narain appzars to have purchased the decree from the heirs .
resumed, The execution application filed by him was however dismissed for default on June 11, 1945. It was restored on December
14, 1946 but was again dismissed for default on January 21, 1954 as- the counsel for the decree-holder stated: that he had no instruction. _ : Thereafter, a fresh application for exéctition was filed by the decree- — holder on February 18, 1954. This application was opposed by the - surety Ratanlal inter alia on the ground that it was barred by limitation having been filed Beyond the period of 12 years preseribed by
_ s, 48 of ‘the Code.
‘The’. question is whether respondent No. i Ram Narain, the
7 assignee-holder, was entitled to . exclusion.of ths period from August
16, 1940 to November 24, 1944 under, s. 15 (1) of the Limitation
'- Act for computation of the period of 12 years prescribed under s. 48 of-the Code.. The District Judge, Ujjain rejected the objection raised by the appellants holding that although the stay of cxecution was pariial in as much as only sale of the attached propérties’ had
- been stayed by the Judicial Committee, the decree-holder was entitled to the benefit of’s.15(1). The appellants preferred an appeal. before-the High Court which was allowed by the learned Single Judge by his order dated February 9, 1962. The Jearned
Single Judge held that an order of partial stay like the one in ques- tion granted by the: Judicial Committee which only postponed the sale of the attached properties did not have the effect of making the decree inexecutable.and therefore s. 15 (1) of the Limitation Act .
-of the original . decree- holder and the execution proceedings were ~
SUPREME COURT REPORTS 7. 'ft984) 3 s.cr.
was not attracted. He understood the decision of Grille, C.J. and - J..Sen, J. in. Sitaram &.Ors. v. Chunilalsat)) as laying. down that oe s. 15 (1) was applicable only when there is absolute stay of excution,
- Aéorieved by the. decision of the leamed . Single judge, réspon-
. stay was within s. 15°(1) of the Limitation Act was: of considerable importance. After dealing with all the authorities on. the subject, .
the Full Bench answered . the question in. the affirmative. It was of
- the view that the Limitation Act like any other enactment must Teceive a -construction . which the language i in its plain meaning is capable * of bearing and ‘that there was ‘no justification for placing a
“’ narrow and restricted construction. on the -word, “‘execution”
+. occurring in the phrase “execution of the decree” in's. 15 (1) of the’ Limitation ‘Act as implying’an absolute bar to the execution of the . decree. According to the Full Bench, such a construction was not ~ _ warranted as it would involve reading into the section words such as . _ “totally; wholly, asa whole, or.by.all possible means” which are.
~ not exclude \a partial stay of execution. After referring to several.
decisions of different High Coutts, the Full Bench particularly: placed: reliance on the decision of the Culcutta High Court in Sreenath Roy. —
-by any of the ‘ “Processes of execution”. It accordingly held that ~ not there. According to its plain language, it held, that s. 15(1) did y. Radhanath Mookerjeg® holding that the words “executioa of the decree” mean enforcement of. the decree by. what is known as
_ the word “execution” in s: 15 (1) must be. construed in a broad sense
- taking in all or any of the various processes of execution and ob-| ' served that the decision in Sitaram’s case, supra, does not take a contrary view. The Full Bench therefore held that the decreeholder ‘was entitled to the exclusion of the*period from August 16,
1940 to November 24, 1944 under s. 15 (1) of the Limitation Act: ~
' in reckoning . the: period of 12 years prescribed by s.: 48 of. the Code.
_
We c concur with the view expressed by the Full Bench.
It is well settled that s. 48 of the Code “was controlled by execution of decrees and orders. It has since been. repealed by s. 28 of the Limitation Act, 1963 which enacts that “in the Code of Civil
(1) ILR (1944) Nag. 250 (2) ILR (1983) 9 Cal. 773.
. dent No. | preferred a Letters Patent Appeal which: was referred by . a Division Bench to a Full Bench as the question whether a partial
* g.15 (1) of the Limitation Act. $s. 48 of the Code enacted a rule of | [imitation and prescribed a period of 12 years foran application for
A’
vs ANANDILAL y, RAM NARAIN (Sen, J.) ”
Procedure, 1908, (Act V of 1908), s. 48 shall be omitted’. [n its placs a new provision Art. 136 has been introduced and that prescribes “for the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court a period of 12 years, etc.” Thus, the substance of 5.48 continues to be the law and for that reason, and also for,the reason that with regard to pending applications,’ the law as laid down in the decisions interpreting s. 48 might have to be referred to, it is necessary to give reasons.
There has been a sharp divergence of judicial authority on the
Act. The preponderance of judicial opinion appears to be in favour of the view that s. 15 (1) contemplates an absolute stay. There jis a. long line of decisions starting from Kundo Mal & Ors. v. Firm
- Daulat Ram Vidya Prakash@) where Din Muhammad, J. laid down _that if execution is not completely and absolutely stayed, s. 15 (1) _ Of the Limitation Act does not come into play, down to Virchand . Kapur Chand vy. Marualappa & Any?) where Sen, J. reaffirmed ‘ .thats. 15 (1) contemplates an absolute stay which reneders the decree-holder incapable of taking out any proceeding for execution of the decree, which are all based on the dictum of Mecleod, C. J..
in Chanbasappa v. Holibasappa’8) to the effect that s. 15 (1) only applies to an absolute stay. The Patna High Court also took the same view in Kirtyanand Singh v. Prithi Chand Lal‘). The dicta
’ of Maclood, C. J. in Chanbbsappo’s case and of Din Mubammad, J.
in Kundo Mal’s case do not give any reasons for the view taken. Sen, J. in Virchand’s case and however gave reasons for taking the view that s. 15 (1) contemplates an absolute stay which renders the decree-holder incapable of taking’ out any proceeding for execution.
of the decree. The learned Judge observed that a partial stay c.g. a Stay of execution in one particular mode is not stay of execution within the meaning ofs. 15 (1) if it is open to the decrec-holder to execute his decree in any other manner. He referred to the contrary
. view taken by the Bombay. High Court in Bai Ujam v. Bai Ruxmani(*) _ by the Rangoon High Court in Nachiappa Reddy v. Maung: Pe(*y and
(1) ATR (1940) Lah. 75.
(2) ATR (1944) Bom, 303, _ (3) ILR (1924) 48 Bom.4 85. (4) AIR (1929) Pat. 597. 45) AIR (1914 Bom. 211.
(6) AIR (1918) UB: 4,
Sti question whether a partial stay was within s. 15 (1) of the Limitation |
812 - SUPREME courT REPORTS 7 [1984] 3 S.G.R
A. bythe Culentta High Court in Govindnath Chaudhuri v. Basiruddin Mondol) where it had’been held that stay of execution of a part of the decree or: against a particular property will nevertheless save limitation for execution of the decree as a whole, and remarked that in view of the decision - of. the Privy Council in Kirtyanand Singh v. Pritht Chand Lal, (7) these decisions were no longer good
_ law. We find it difficult to accept the reasoning.
. ‘The decision of the Privy Council in Kirtyanand Singh’s casedoes not lay down‘any. contrary proposition. There, the point appears to have arisen from'an order passed by the Court in the cc Raj Suit to the effect that “the decree-holder were to wait for some
' time for payment”. That order-was subsequently set aside having
_ been in operation for about seven months. ‘he decree-holders’ -contention was that they were entitled to the benefit of s: 15 (1) with
“respect to the aforesaid period of seven months. Lord ‘Tomlin, delivering the judgment of the Judicial Committee, construed the
-D aforesaid order as meaning not an order staying execution within Ce s. 15 5) of the Limitation Act, and observed :
Now the first thing to be observed is that at the time - when that order was made, there was in fact no application
E for execution pending at all. Tt was an order again made
‘ in the Raj Suit and not in the rent suits; it was an order
.Made on application by the decree-holders seeking leave to proceed against property in the hands of the receiver in the
Raj suit. Jt was an order which did no: stay at all, but
_, simply said that so far as that application in that suit.was
F |. concerned the appellants were to wait. That seems to their
Lordships not to to be in any sense within the meaning of the section a stay of the execution by injunction or order.”
(Emphasis supplied)
G : In Lala Baijnath Prosad & Ors. Vv. Nursinghdas Gujrati() the Calcutta High Court appears to have adopted a middle course. Chakravarti, C. J. delivering the judgment of the Court observed:
“If the decree-holder is prevented altogether from
~ (1) AIR (1921) Cal. 606. (2) AIR (1933) PC 52. - (3) AFR (1958) Cal. 1.
ANANDILAL vy. RAM NARAIN (Seri, J.)
executing his decree, it is but reasonable that time should
- not run against him so long as he remains disabled and the
- section saysso, But there seems to be no reason why the . section should be construed as meaning that even when fhe . injurction or order is limited to one or some of several
_ judgment-debtors or to one or some of their properties or to some particular mode of execution and even when the decree-holder is left free to proceed against the other judgement-debtors or other properties or in other way, he will be entitled to the benefit of the section.
The learned Chief Justice observed that in sucha case the execution of the decree i is not stayed but only execution in certain waysand against certain Persons or properties is prevented, and then added : .
“But assuming ‘stayed” include ‘stayed:in part’, the utmost _ that can be claimed under the terms of the section is that ifa decree-holder is restrained for a time from proceeding against some particular judgment-debtor or some particular a
‘property or in some particular way, and‘when the bar is | lifted, he applies for execution against the same judgmentdebter or the same property or in the same way, he will be entitled to exclude the period during which he remained i ie. strained.” 7
We feel that, there is no justification for placing a rigid construction on a beneficent provision like s. 15(1) of the Limitation Act.: It is not necessary for us to go into the history of the tegislation which has been dealt with at length in many of the decisions
-laying down that s. 48 of the Code is controlled by s. 15(1) of the Limitation Act. All that’ we need say is that both the enactments — _ have throughout been treated as supplementary to each other, and concern with procedural -law. Itis also true that in construing statutes of limitation considerations of hardship and anamoly are out of place. Nevertheless, it is, we think, permissible to adopt: "a bencficent construction of a rule of limitation if alternative constructions are possible. Itis plain on the terms of s. 15(1) that the — word “execution” appearing in the collocation of words “the execution of which has been stayed” must be construed in a liberal and broad sense. As Observed by the Calcutta High Court in Sreenath Roy’s case, supra, the words “execution of the decree”
mean the enforcement of the decree -by what js known as “process of execution”.
io}
“814
>
* means by which a decree is enforced. It includes all process and~
SUPREME COURT REPORTS - (1984) 3s.c0R f
Agreeing with the Full Bench, we are inclined to the view that the word ‘“‘execution”’ ins. 15(1) embraces all the appropriate proceeding in aid of, or supplemental to, execution. We find no rational basis for adopting a-narrow and restricted coustruction on a beneficent provision like the one contained in s. 15(1). There is no reason why s 15 (1) should be given a restricted meaning as allowing © the benefit toa decree-holder where there is 4 complete or absolute stay of execution and not a partial stay ie.a stay which makes the decree altogether inexecutable. Nor can we subscribe to the proposition that in cases of partial stay, the benefit under s. 15(1)
can be had only where an execution application is directed against the same judgment-debtor or the same property, as against whom an execution was previously. stayed. Stay of any process of execution is therefore- stay of execution within the meaning of the section. Where an injunction or order has prevented the decree-holder from
‘executing the decree, then irrespective of the particular stage of execution, or the particular property against which, or the particular judgment-debtor against whom, execution was stayed, the effect of such injunction or order is to prolong the life of the decree’ itself by the period during which the injunction or order remained in
‘force. The majority view to the contrary taken by some of the High
Courts overlooks the well settled principle that when the law prescribes more than one modes of execution, it is for the decree-holder to choose which of them he will pursue. .
For thesé reasons, the appeal must fail and is dismissed with costs.
NV.K 2 ee _ Appeal dismissed.
, eee