Wanchoo, C.J.
1. This is an appeal by Messrs. Ramjiwan Ramnath against the order of the Civil Judge, Merta, dismissing the application filed by the appellant against ROOP Chand and others for execution of a decree obtained by them against the respondents from the Calcutta High Court, on the ground that execution was barred by limitation, and there had been no revivor as contemplated by Article 183 Limitation Act.
2. The facts are that the appellant obtained a decree against Chhogmal and his sons Roop Chand and others, who are respondents in the present appeal, from the Calcutta High Court on 3-2-1938. The appellant got this decree transferred to Aligarh in 1949, and applied for execution by arrest of Chhogmal, judgment-debtor, in December 1949. The proceedings in the Aligarh Court are said to have come to an end sometimes in 1950. Thereafter the appellant got the decree transferred to the Court at Merta and applied for execution.
3. The execution of the decree was objected to by the judgment-debtors respondents, and, among other picas, they raised the plea that the execution was barred by time. The case of the appellant decree-holder, however, was that by virtue of the execution which took place in the Aligarh Court in 1949-50 there was revivor within the meaning of Article 183, Limitation Act. The lower Court has, however, held that there was no revivor under Article 183, and has dismissed the application for execution in consequence as barred by time. The present appeal is against that order,
4. Before we consider the question whether the decree in this case was revived by the proceedings which took place in the Aligarh Court in 1949, we should like to deal with an application by the appellant for admission of certain copies of order sheets of the Aligarh Court.
5. The contention on behalf of the appellant in this connection is that a request had been made to the lower Court to adjourn the hearing for taking evidence in the shape of certified copies of proceedings before the Ahgarh Court; but the learned Judge did not give time for that purpose. An affidavit 'of counsel appearing on behalf of the appellant was also filed in support, and it was stated therein that the counsel and requested the Court for time on the question of limitation limitation on the ground that copies of proceedings, before the Court of Aligarh had not been received, but the Court refused to grant time. Therefore, the appellant prayed that, we should admit these certified copies.
6. We have gone through the order-sheets of the Court below from September, 1952,, to October, 1953. There were many hearings between this period, and the order-sheets show that the case was postponed from date to date for purposes of arguments. On none of these hearings, there was ever a request by the appellant for time to produce documents. Nor was there any request that issues should be framed before arguments were heard.
To say now that the Court below did not frame issues is of no avail to the appellant, for, in the first place, issues arc not necessarily framed] when objections in execution proceedings the decided, and, in the second place, the parties would not have allowed the ease to be postponed from date to date for almost a year for argument if anybody thought that issues were necessary. It is true that an affidavit has been filed by the learned counsel appearing in the lower Court that he made an oral request for adjournment on the ground of production of copies of the proceedings in the Aligarh Court.
There is no mention of any such request in the order-sheet of 24-10-1953. We must say that if a counsel feels that any oral request of his., which is material is being refused, it is his duty to put in an application in writing containing has request, and get an order from the Court on it. It is, in our opinion, not proper that this Court should be asked to disbelieve the record of proceedings contained in the order-sheet on the affidavit of learned counsel,' when it is open to learned counsel to make an application, and get an order in writing.
In any case, so far as the present matter is concerned, we feel that we cannot rely on the affidavit filed by the learned counsel who appeared in the Court below. According to him, he wanted time because he did not receive the copies which he wanted to produce. Copies have been produced in this Court, but those copies were not applied for in 1953. It seems to us therefore that counsel could hardly have asked for time to produce copied which had not been applied for till then.
We would not be prepared therefore to admit the copies which the appellant wants us to admit on the ground that lie was not allowed' an opportunity to produce them in the Court below. But we do think that these copies, which have been produced, will be useful to us in disposing of this appeal and we, therefore, admit them under Order 41, Rule 27(1) (b), C.P.C.
7. The decree in this case was passed in 1938, and ordinarily no fresh application for0 execution would lie in July, 1951, when application was made in this case before the Court below in view of the provisions of Section 48, C.P.C. The appellant however, relied on Article 183, Limitation Act which provides for revivor in cases of decrees passed by any Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction. Thus a decree of the Calcutta High Court could be executed under the proviso in the third column of Article 183 within 12 years from the date of revivor, the relevant words being:--
'Provided that when the judgment, decree of order has been revived....the twelve years shall be computed from the date of such revivor... .or the latest of such revivers...'
8. 'Revivor' has riot been defined anywhere in the Limitation Act, but the leading case on the point is Jogendra Chandra Roy v. Shyam Das, 33 Cal. 543 (A) which has been followed by all the High Courts, It was pointed out in that case that the term 'revivor' was nowhere defined, but as it appeared in the Limitation Act of 1859 when there was a procedure for revivor of judgment prevalent on the original side of the Calcutta High Court it would be only proper to construe the word 'revivor' in the Limitation Act in that manner.
The procedure was that execution could not issue upon judgments more than a year old without issuing a writ of scire facias against the defendant. The learned Judges then considered the history of the writ of scire facias, and summed up the position thus at p. 552:
'The substance of the matter, so far as we are concerned, may therefore be thus stated: a scirc facias is a judicial writ founded on some matter of record and having for its object the prevention of undue surprise by interposing itself as a warning between judgment' and execution wherever a new party is to be charged or benefited by such execution, whenever such execution is contingent, after judgment, on the existence of certain circumstances to be first proved by the party charging; and lastly, whenever execution has been delayed beyond the specified 'period (a year and a day under the common law) after the judgment was signed, that delay not arising from the party charged.')
The learned Judges then went on to point out that it was not difficult to identify this writ substantially with the procedure embodied in Section 248, Civil P.C. (now equivalent to Order 2.1, Rule 16 and R- 22), though there are some differences in detail. Essentially, however, these two rules provide for issue of notice to the judgment-debtor when there is an assignment of the decree (Order 21, Rule 16), or when execution is sought more man a year after the passing of the decree, or against the legal representatives of the original judgment-debtor (Order 21, Rule 22).
The difference is that under Order 21 Rule 16, no notice has to be issued where the decree is transferred by operation of law, and further under Order 21, Rule 22 no notice is to be issued where execution is taken out within one year of the last execution. It appears, however, that in the case of scire facias notice; had to be issued even when the decree was transferred by operation of law, or when execution was being taken out more than a year after the passing of the decree, though it may not be more than a year after the last execution. The conclusion, to which learned Judges arrived in Jogendra Chandra Roy's case (A) is stated at p. 552 in these words:--
'It seems to us to be fairly obvious, therefore, that when the Legislature used the term 'revivor of judgment' in the Limitation Acts of 1871 and . 1877, they had in view the procedure embodied in Ss. 216 of the Code of 1859 and 248 of the Code of 1.877.'
It is obvious, therefore, that the procedure provided by Rules 16 and 22 of Order 21 is essential before it can be said that a judgment is revived within the meaning of Article 183, Limitation Act.
9. The matter was again considered by the Calcutta High Court in Kamini Debi v. Aghore Nath, 4 Ind. Cas. 402 (Cal.) (B). In that case, what happened was that there was an application for execution in 1894, on which apparently notice was issued under the provision corresponding to Order 21, Rule 22. There was an objection by the judgment-debtor on the ground that' the execution was parred by limitation. This matter was considered by the Execution Court, and the objection was ' overruled.
Thereafter, the decree-holder intimated to the Court that he did not wish to proceed with the execution at that stage. Therefore, by the same order the execution Court struck off tile application tor execution on the decree-holder's statement. The argument in that case was that as no execution was actually taken out, there could be no revivor. This argument was repelled by the learned judges in the following terms at p. 403;
'The essence of the matter is that to constitute a revivor of the decree, there must be, expressly or by implication, a determination that the decree is still capable of execution, and the decree-holder is entitled to enforce it. An order for execution operates as a revivor, because it necessarily implies such a determination. In the case before us, the objection of the judgment-debtor was overruled and it was decided that the decree was not barred by limitation. The effect of this order was to entitle the decree-holder to proceed with the execution and there was consequently a revivor of the decree.'
10. Thus notice and a judicial determination, expressly or by necessary implication, are the minimum requirements which must be fulfilled before a judgment can be said to be revived within the meaning of Article 183, Limitation Act. We are also of opinion that this procedure must be strictly, followed if the intention is to revive the judgment or decree, for the result of the revivor is that a decree, which would otherwise be barred by limitation and could not be executed generally after a period of 12 years in view of Section 48, Civil P.C., becomes capable of execution for ever if it is revived within 12 years. That is why various Courts have held various proceedings which have been taken after the decree as not sufficient for reviving, the decree.
11. In Chutterput Singh v. Sumari Mal, AIR 1916 Cal. 488 (FB) (C) the requirements for constituting a revivor were restated, and an application for transmission' of a certified copy of a decree taken with an order thereon that the application should be granted was held not to constitute a revivor of the decree, even though the application was written upon a form which was applicable to an application for actual execution of a decree, and even though notice had been issued to the judgment-debtor 0:1 the application for transmission of the decree.
It was remarked that the procedure under S. 248 (now corresponding to Order 21, Rule 22) had no application to an application for transmission of the copy of the decree, and therefore a notice issued in proceedings for transmission of the copy of the decree taken with the final order for transmission did not operate as a revivor.
12. In Banku Behari v. Narain Das, AIR 1927 PC 73 (D), A was held that an application for transmission of a decree from the High Court to the District Court was not by itself a revival of the decree, inasmuch as it was a mere ministerial act of an officer of the Court, and not the judicial act of a Judge.
13. In Palanippa Chettiar v. Valliammal Achi, AIR 1929 Mad. 252 (2) (E), it has been held that an order transferring a decree for execution to another Court does not give a new starting point of limitation qua order of transmission.
14. In Harnarain v. Dayabhai Hira Chand, AIR 1940 Pat. 596 (F), it has been held that a mere issue of notice under Order 21, Rule 22 does not amount to revivor, and that there must be expressly or by implication a determination that the decree is still capable of execution, and the decree-holder is entitled to enforce it. It has also been held that the proceeding for obtaining leave under Order 21, Rule 50 is not an application for execution, nor does the leave granted amount to any order for execution, and does not therefore amount to revivor.
15. In Murugesan Chetty v. E, Kanniappa Mudaliar AIR 1952 Mad. 124(G) it is held that an order bringing on record legal representatives of decree-holder, and allowing them to execute the decree is an order of revivor within the meaning of Article 183. But in the case of a decree against two persons an order of revivor made on an application for execution against only one of them does not operate as a revivor against the other.
16. On a consideration, therefore, of these authorities, it seems to us that a revivor takes place only if the procedure provided by Rule 16 and Rule 22 of Order 21 is followed, namely that a notice is issued, and a determination made either expressly or by necessary implication that the decree is subsisting, and the decree-holder has a right to enforce it.
Naturally this determination has to be made within 12 years of the passing of the decree or of the last revivor as the case may be. If it is made more than 12 years after, there can be no revivor even though tlie procedure prescribed by Rules 16 and 22 has been followed, and a determination made. Reference in this connection may be made to Hasan Vali v. Isap Bapuji, AIR 1939 Bom. 51 (H). We are further of opinion that there should be strict compliance with this procedure for reasons already mentioned,
17. Let us now see what actually happened in this case as evidenced by the copies of order sheets of proceedings in the Aligarh Court On 7-12-1949, the District Judge, Aligarh, received a copy of the decree from the Calcutta High Court, and he passed an order to the effect that an execution application be awaited. On 15-12-1949, the execution application was filed by the decree-holder. Thereupon., the District Judge ordered that the execution application be transferred to the Civil Judge, Aligarh, for execution.
On 16th of December an objection was filed by Chhogmal, judgment-debtor, and it was ordered that the application be also sent to the Civil Judge along with the execution appli cation. The matter was put up before the Civil Judge, Aligarh, on the same day, and the order-sheet shows that the decree-holder applied for issue of warrant of arrest without issue of notice.
The application of Chhogmal judgment-debtor was also put up, and it was ordered that the matter be put up on 23-12-1949, in the presence of counsel for parties for further orders. The order-sheet of 23-12-1949, says that the application for execution as well as the objection of the judgment debtor was put up, but the judgment-debtor was absent, and consequently the objection was dismissed. It was also ordered that warrant for arrest be issued. No notice was issued to the judgment-debtor.
Thereafter, proceedings continued, and the order-sheet of 11-3-1950,, shows that Chhogmal was brought under arrest to the court on that date. As, however, expenses for maintenance of Chhogmal in jail had not been deposited, he was ordered fro be released. Thereafter, on the same day, another application was put up on behalf of the decree-holder for issue of warrant against Chhogmal and his son Roop Chand (one of the respondents before us).
It was ordered that warrants be issued on deposit of nccessiry expenses. The proceedings then dragged on till 3-11-1950, when trie execution was struck off for default of the decree-holder. The warrants ordered to be issued on 11-3-1950, were never served on Chhogmal and Roopchand, though they were issued a number of times.
18. The contention on behalf of the appellant is that in view of these proceedings the decree was revived as against Chhogmal. It is admitted that as the present respondents were never served, there could be no revivor of the decree against them. We have, therefore, to see whether on these facts it can be said that the decree was revived even against Chhogmal,
19. The first point, that is clear from the copies of the order-sheets that have been produced, is that no notice under Order 21, Rule 22 was ever issued by the court in this case. Further it is clear that no notice under Order 21, Rule 37 was ever issued, though warrants for arrest were issued. It has beep urged that the absence of notice so far as Chhogmal is concerned is of no importance in this case because Chhogmal did appear at one stage of the proceedings and made an objection to the issue of a warrant of arrest against him.
Reliance in this connection has been placed on a number of cases to show that non-issue of a notice under p. 21, Rule 22 is not fatal to the execution proceedings which were carried on. These cases are:--
(i) Grish Chunder v. Bhanoo Motee 11 Suth WR 329 (1).
(ii) Fakhrul Islam v. Bhubaneshwari Kuer AIR 1929 Pat 79 (p.
(iii) Chandra Nath v. Nabadwip Chandra AIR 1931 Cal 476 (K).
(iv) (M Anil Kmnar v. Ahammed Ali AIR 1940 Cal. 23 (L).
(v) Shiyali Vengu Chetti v. Valjce Kanjce and Co., Madras, AIR 1936 Mad 99 (M).
20. It may be accepted as well settled that when; notice under Order 21, Rule 22 has not been issued, and proceedings have gone on in the presence of the judgment-debtors and their objections have been decided, the mere non-issue of the notice does not invalidate the subsequent proceedings 'in execution. The law, if we may say so with respect, has been laid clown in the following observations of Rankin C. J. in -- 'Chandra Nath Bagchi's case (K)' at page 478:
'I do not in any way seek to throw doubt upon the proposition that where such a notice has not issued and the party who is entitled to notice docs not in substance get notice and is not given or docs not take an opportunity to object to the execution of the decree, the sale which follows will lie without jurisdiction in the sense that, even if the sale is to a stranger, the sale will not be binding or valid. The parties in the present case have been litigating actively with each other upon the question whether this execution should proceed and how it should proceed...........
It appears to me to be merely piling unreason upon technicality to hold upon the circumstances of this case that it is open to the judgment-debtors on these grounds to object to the jurisdiction of the Court because they have' not got a formal notice to do something, namely to dispute the execution of the decree when in point of fact they were busy disputing about it in all the Courts for the best part of the last two years.'
But none of these cases, except 'Shiyali Vengu Chetti's case (M)', are cases of, revivor. 'Shiyali Vengu Chetti's case (M)' was also not a case of revivor,, though the decree in, that case appears to have been passed by the Madras High Court., We are, therefore, of opinion that notice under Order 21 Rule 22 is not necessary where the judgment-debtor has been fighting out the execution tooth and nail in cases which have nothing to do with revivor
It is an altogether different thing to apply that principle in a case of revivor where there is a specific procedure which must be undergone if there is to be revivor. As we have already pointed out, it is possible to keep a decree alive by revivor for ever against the provisions of Section 48, Civil P. C. In such circumstances, we are of the viwe that notice under Order 21, Rule 22 is essential.
21. Learned counsel for the appellant drew our attention to two cases in this connection. In Chutterput Singh's case (C), it was said at page 490 that the order, which was made on 12-2-1900, for the execution of the decree by the arrest of the defendant, constituted a revivor within the meaning of that clause. But the circumstances,, in which that order was made, do not appear in the judgment.
It is enough to say that the procedure underOrder 21, Rule 37 relating to arrest comes into play afterthe notice under Order 21, Rule 22 has been issued inoases where notice has to be issued under thatrule. Therefore, it is possible that the order of 12-2-1900, for execution by arrest, which has been treatedas a revivor in this case, might have been passedafter issue of notice under Order 21, Rule 22 also, orthe corresponding provision of the previous CodeThat case, therefore, is no authority for holding thatan order 'for arrest will necessarily constitute a revivor without even going through the procedure pro-vided by Order 21, Rule 22.
22. Similarly in 'Hamarain's case (F)', the learned Judge doubted whether an order under Order 21, Rule 37 without issue of notice would amount to a reviver; but as that was not the point before him he assumed it for purposes of that case that it would amount to a revivor against the person who was arrested. But he went on to bold that it could not amount to a revivor against the other judgment-debtors who were not parties to that execution proceeding. It is enough to point out that an order for execution by arrest under Order 21, Rule 37 can also amount to revivor if it is passed after notice provided in Order 21, Rule 22.,
23. The direct case on the point relating to arrest is -- 'B.K. Mitra v. Bhajan Lal', AIR 1945 Pat 182 (N). In that case, it was held that an order for execution by arrest after a notice under Order 21, Rule 37 did not amount to revivor as the procedure provided by Order 21, Rule 22 bad not been gone through. The Courts cannot, in our: opinion, dispense with the notice under Order 21, Rule .22, or Order 21, Rule 16 where they have to consider whether the decree has been revived or not,
24. In the present case, as there was no notice whatsoever under Order 21, Rule 22, the decree cannot be said to have been revived merely because Chhogmal judgment-debtor was arrested in pursuance of a warrant issued under Order 21, Rule 37.
25. We are also of opinion that the petition made on behalf of Chhogmal on 16-12-1949, was not the sort of petition' contemplated under Order 21, Rule 22. Let us see what he has said in that petition. He first says that the decree against him was ex parte, and no summons or notice was ever served on him. That is an objection which no judgment-debtor can take in .execution proceedings.
Then he says that the objector was an old man; and the decree was- not legally executable against him. That is a meaningless objection because the age of the judgment-debtor has nothing to do with the executabifity of the decree against him. Then he says that the decree was bogus, and execurtion, was being taken out on account of enmity in order to wreck his business. This again is not an objection which can be taken in execution 'proceedings.
Then he says that he was intending to move the Calcutta court for restoration of the suit, and was collecting information regarding it This again is not an objection which can be raised in an execution court. Then he says something about his son Roopchand, namely that Roopchand was an agriculturist, and that the decree could not be executed, against him, by arrest.
We need not attach any importance to this objection because it is not even the appellant's easethat the decree was revived against Roopchand,.Lastly, it is, said that the issue of a warrant of, arrestwithout any opportunity being given to the judgment-debtor will seriously harm his reputation as abusiness man. .
There is thus not a single objection in the application of 16-12-1949, which can be said to referto the executability of the decree, and which can'be properly raised in an execution court.. Finally, itwas prayed that the objection be allowed, and theproceedings be stayed. So all that Chhogmal waspraying for was stay of proceedings presumably withthe intention of moving the Calcutta High Court;under Order 9, Rule 13, and getting the ex parte decreeset aside.
If a notice bad been issued under Order 21, R, 22asking Chhogmal to show cause why execution shouldnot 'be levied against him, be, might have been' ableto raise proper objections to the executability of thedecree. The fact, therefore, that such an objection.was made by Chhogmal is, in our opinion, of noconsequence in the absence of a notice under Order 21,.Rule 22.
26. The next question is whether, even if it can be said that Chhogmal having made the application dated 16-12-1949, the formality of a notice under Order 21, Rule 22 can be dispensed with in his case (though we are of opinion that a notice in terms either of Order 21, Rule 16, or Order 21, Rule 22 is necessary if the decree is to be revived), it can be said that there was a judicial determination of the question of the executability of the decree.
We have already shown that, on 15-12-1949, the decree-holder applied for execution to the District judge. On 1.6th of December, Chhogmal made his objections also to the District Judge. On the same day the execution application as well as the objection was transferred to the Civil Judge for disposal, and an order was passed that this application should be put up on the 23rd of December for further orders.
There is nothing to show in the order-sheet of the 16th December, 1949, in the court of the Civil Judge Aligarh, that Chbogmal or his counsel' was present when tbe matter was ordered to be put up on 23-12-1945. There is nothing also in the, order-sheet of the 16th of December requiring the presence of Chhogmal personally on the 23-12-1949.
We do not know whether Chhogmal or hi? counsel even knew that the application of. Chhogmal would come up for decision on the 23rd of December. Yet the order of the 23rd December says that Chhogmal is not present in person to show that he was old and intirm, and there was no application on his behalf, and consequently the objection was dismissed.
In our view, this can hardly be called a judicial determination of the question that the decree is still capably of execution, and the decree-holder is entitled to enforce it. The court does not seem, to have addressed itself to that question at all, and Chhogmal's application was dismissed for default without it being certain that he had even notice of that date, namely the 23-12-1949.
In any case, the only matter considered, according, to the order-sheet of 23-12-1949, was whether the decree should be executed by issue of a warrant. This is a subsequent question and arises only alter the court has decided after issue of notice under Order 21, Rule 22 whether the decree is executable at all.
27. We are, therefore, of opinion that in this case it can neither be said that there was such notice as is necessary for purposes of revivor, nor that there was judicial determination, expressly or by implication, that the decree was capable of execution., and the decree-holder was entitled to enforce it.
The order of 23-12-1949, at any rate, does not show that the court ever addressed its mind to this question of executability. In this view of the matter, we are of opinion that the lower court was right in holding; that the proceedings in the court at Aligarh were' not sufficient to revive the decree even1 against Chhogmal. Therefore, as the present execution application was made. In 1951, more than 12 years after the decree, it is barred by limitation, and has been rightly dismissed.
28. Another argument was raised on behalf of the judgment-debtors respondents with regard to the validity of Article 183 itself after the coming into force of the Constitution in 1950. The argument is that Article 183 is a discriminatory piece of legislation, and is hit by Article 14 of the Constitution ' inasmuch as there is no sufficient reason why the decrees of the High Courts of Calcutta, Bombay and Madras on the original side should be treated differently from decrees of other Courts of other States which are all governed by Section 48, Civil P. C.
In the view, however, that we have taken in this case of what revivor is, and what is the minimum requirement for the revivor of a judgment, decree or order, we do not think it necessary to enter into this rather difficult question raised by the respondents. It may have to be decided in a proper case where the court may come to the conclusion that there was actually a revivor in the manner provided by law.
29. Learned counsel for the respondents, wanted to raise other points. We have, however, not permitted , him to do so because the judgment of the court below is based entirely on one point only namely revivor, and we would not be prepared to go into other points without the benefit of the lower court's view on those other points.
30. We, therefore, dismiss the appeal with costs ' to the respondents.