Firm Dhannalal Maganlal Vs. Surajmal and ors. - Court Judgment

L.N. Chhangani, J.

1. This is a decree-holder's first appeal under Section 96 read with Section 47 of the Code of Civil Procedure against the judgment and decree of the Civil Judge, Sambhar dated the 12th of August, 1955 dismissing the decree-holder's fourth execution application as barred by limitation.

2. In order to appreciate and adjudicate upon the controversy raised in this appeal, it will be necessary to state the following facts:

3. The decree-holder Firm Dhaunalal Muganlal of Madanganj obtained a decree for Rs. 7321/-against Surajmal, Lalchand and Moolchand from the court of the District Judge, Kishangarh on 29th April, 1946, which was confirmed in appeal by the High Court. The decree-holder put in the first execution application on 1st March, 1948. It may be mentioned here that the judgment-debtors belonged to town Shali outside the jurisdiction of Kishangarh courts. It appears that the judgment-debtor Moolchand was reported bo have gone to Dadi within the jurisdiction of the Kishangarh State and the decree-holder took an opportunity of executing his decree for the first time.

It was stated in the application that the judgment-debtor Moolchand was reported to have gone to Dadi to his father-in-law's house and that a warrant for his arrest might be issued. Along with the application for execution, an application was also presented requesting the court to dispense with the issue of notice and to issue a warrant immediately under Order 21 Rule 22, Sub-rule (2) C. P. C. as it was apprehended that the judgment-debtor would, on receipt of notice, evade execution.

The court accepted the application, dispensed with the notice under Order 21 Rule 22 C. P. C. and directed the issue of a warrant. However, no reasons for dispensing with the notice were recorded by the execution court. Attempts were made to arrest the judgment-debtor, but he was not available at Dadi. The application consequently was consigned to record on 5-4-1948. The decree-holder put in the second application before the Civil Judge on 1-9-1950 and sought execution by attachment and sale of the movable and immovable property of the judgment-debtor.

This application was also dismissed and consigned to record on 17-4-1951 on the decree-holder's advocate reporting no instructions. The third application was filed on 27-4-1951 and had to be dismissed as the decree-holder prayed for the attachment of the movable and immovable property of the judgment-debtor situated at Shali outside the court's jurisdiction. The fourth execution application was presented in the court of the Civil Judge, Sambhar on 3-10-1951. The judgment-debtors appeared before the execution court and filed objections to the execution of the decree on 19-11-1951.

Their main contentions were that the application was not in accordance with law and the judgment-debtors were not given any notice under Order 21 Rule 22 C. P. C. With regard to the previous applications, it was generally stated that the judgment-debtors never received any notice in connection with the execution of the decree before the institution, of the present application and that they do not, therefore, constitute steps-in-aid and extend any limitation. The execution court accepted the judg-ment-debtors' objections and dismissed the decree-holder's application as barred by time.

4. Analysing the order of the Civil Judge, I find that he started dealing with the execution application No. 1 and gave two reasons for holding that it could not give fresh start of limitation. In the first instance, it was pointed out that the judgment-debtors being residents outside the jurisdiction of the execution court, the application for execution could not be in accordance with law. The case of Dr. A. M. Ahmad v. British Medical Stores, AIR 1940 Pesh 27 was relied upon in support of this reason. The second reason given by the execution court was that the execution court having recorded no reasons for dispensing with the notice under Order 21 Rule 22(2) C. P. C. and issuing warrant immediately, acted without jurisdiction, with the result that the entire proceedings stand vitiated and are of no avail and, therefore, cannot extend limitation. Then, summing up the conclusion with regard to this application, he observed that the first two execution applications were void and did not constitute steps-in-aid of execution and cannot save limitation and consequently, the application for execution was held barred by time.

5. I have heard Mr. D. P. Gupta on behalf of the decree-holder. The judgment-debtors in spite of service remained absent and the appeal was, therefore, heard ex parte.

6. Dealing with the first execution application, I have to observe that both the grounds relied upon by the execution court for its conclusion are not correct in law. In the execution application, it was clearly mentioned by the decree-holder that one of the judgment-debtors had been reported to have gone to Dadi within the jurisdiction of the execution court and a prayer was made for his arrest and detention in civil jail in connection with the satisfaction of the decree. I cannot understand why this application cannot be treated in accordance with law. If a non- resident judgment-debtor visits a place within the jurisdiction of the execution court, the execution court is quite competent to entertain the application for execution seeking his arrest, and there is and can be no legal bar against such an application which is and must be held to be in accordance with law. In the case of AIR 1940 Pesh 27 which was relied upon by the execution court, the facts were altogether different. In that case, at the time of the execution petition, the judgment-debtor was at Kabul and prayer was made for his arrest at Kabul. It was rightly held that the execution court was not competent to entertain a prayer for the arrest of a person outside India and the application for execution was rightly held as not in accordance with law. The principle of Dr. A. M. Ahmad's case, AIR 1940 Pesh 27 is wholly inapplicable to the present case and the trial court's conclusion based upon a misapplication of law, cannot be accepted as correct. I may also observe that the judgment-debtors cannot derive any help or benefit from the fact that the allegation of the decree-holders that the judgment-debtor had gone to Dadi within the jurisdiction of the execution court, was ultimately found incorrect. On the allegations in the petition, it was quite valid and the court was quite competent to order the issue of warrant and the fact that the allegations were found to be untrue later, cannot invalidate the application. An application has to be judged on the allegations on which it is made and not on what is actually found as a fact later, either on inquiry or otherwise. An acceptance of a contrary view may in some cases involve complicated and prolonged inquiries into the allegations made in previous applications in subsequent petitions which could not have been intended and contemplated by the legislature.

7. Regarding the second ground given by the execution court, J may at once state that the deci-sions on this point are not unanimous; some cases holding that omission to record reasons for dispensing with the issue of a notice under Order 21 Rule 22 C. P. C. is a mere irregularity not vitiating the entire subsequent proceedings and some holding that omission to record reasons is a fundamental defect vitiating the entire proceedings. The cases of U. Nyo v. U Po Thit, AIR 1935 Rang 42 and Mansaram v. Kamarali, AIR 1954 Nag 78, adopted the latter view, and have been relied upon by the lower court. The cases, Bechan Mahton v. Emperor, AIR 1936 Pat 37; Ladli Prashad v. Chaman Lal, AIR 1939 Lah 473 and Rajani Kanta Sana v. Emperor, AIR 1931 Cal 443 have taken a contrary view and held that omission to record reasons is a mere irregularity. (8) The controversy, however, in most of the cases was raised in connection with the validity of sales of properties or of orders passed in subsequent proceedings. In the Nagpur case, AIR 1954 Nag 78 of course, the principle that omission to record reasons is a defect of fundamental nature was extended in connection with the question of limitation also and an application for execution was not considered sufficient to give a fresh start of limitation as the non-recording of reasons was assumed to have affected the validity of not only the proceedings, but also of the application itself. However, the authorities discussed in the case did not relate to the question of limitation. Had it been necessary to decide the controversy over the non-recording of reasons even in connection with the validity of sales or orders in execution proceedings, I would have had no hesitation in accepting the liberal view that omission to record reasons is a mere irregularity and should not vitiate entire proceedings irrespective of the consideration of prejudice to the parties.

The majority of the High Courts have taken such a view. Some High Courts have introduced amendments to the rule providing that a failure to record reasons is only an irregularity not affecting jurisdiction. This view is preferable on general principles, as after all we must consider the matter On which a court acts and not merely the manner in which it acts. If really the materials on record justified the dispensing of a notice, a mere omission to record reasons should not vitiate the subsequent proceedings apart from any prejudice to the parties.

9. In the present case, there was an application by the decree-holder for dispensing with the notice of the court. It was not the judgment-debtor's case that on the grounds mentioned in the petition, there was no case for dispensing with the notice. In thesecircumstances, it cannot but be treated to be a mere irregularity. However, for the purposes of the present case, it is unnecessary to finally express any opinion as to which view should be accepted, as in my opinion, for the purposes of limitation, these cases can have no importance whatsoever. Whether or not the subsequent proceedings are vitiated, it cannot be accepted that the application for execution itself should be rendered as not in accordance with law on account of any irregularity in subsequent proceedings. Article 182(5) of the Limitation Act contemplates merely an application for execution in accordance with law and that will be sufficient to give a fresh start of limitation from a final order to be passed on that application.

The next question that arises for determination is whether the final order contemplated in Article 182(5) means an adjudication after notice under Order Order 21 Rule 22 C. P. C., so that even if the application for execution be in accordance with law, a fresh start of limitation cannot be claimed in cases where the applications become infructuous and are disposed of before notice. If the final order contemplates art adjudication on merits after issue of notice under Order 21 Rule 22 C. P. C., then certainly absence of notice will imply the absence of a final order and there can be no question of a fresh start of limitation. If on the other hand, the final order means any kind of order terminating the execution proceedings, then the absence of an order directing issue of notices under Order 21 Rule 22 or a non-issue of notices or want of service of notices become quite irrelevant for determination of the question of limitation.

The learned counsel for the appellant has referred to a number of cases where it has been held that the words 'final order' should not be interpreted to mean an order of adjudication in execution mat-ters. In the case of Chandika v. Kamla Prasad, AIR 1937 Oudh 233, it was held that 'the fact that the application is subsequently dismissed on account of the decree-holder's default cannot make the application ineffective for purpose of saving limitation if at is a proper application made in accordance with law'. The Full Bench of the Madras High Court in the case of Chidambara Nadar v. Rama Nadar, AIR 1937 Mad 385 observed that the 'order passed is final within the meaning of Article 182(5) for the termination of proceedings so far as the court passing it is concerned. The order need not be one on merits'. Apart from the authorities in the very nature of the execution cases, it does not appear to be reasonable to interpret the words 'final order' as an adjudication on merits after notice under Order 21 Rule 22 C. P. C.

The evasive tactics of judgment-debtors are well-known and their successful attempts should not be allowed to be exploited by them to evade their liability under decrees on a plea of a narrow interpretation of the words 'final order' and the consequent contention that as the previous applications did not end in an adjudication on merits because of their evasion, did not save limitation. It will be in consonance with justice to hold that a final order need not be an adjudication on merit, but should include an order dismissing a valid application for execution even in consequence of the default of the decree-holder. If this is the correct view, which I think it is, then as observed earlier, the absence of any notice under Order 21 Rule 22 C. P. C. is wholly immaterial.

10. The Civil Judge did not apply his mind to the above considerations and I find it difficult to agree with his conclusion that the first execution application did not give a fresh start of limitation.

11. As observed above, he did not discuss the subsequent applications as such and made a general observation with regard to them also while summing up his conclusion in respect of the first application. The second application was not shown or even alleged to be fundamentally defective as to be not in accordance with law and on the conclusion recorded earlier that the absence of notice will not affect the validity of the petition or the passing of a final order as also on the proper interpretation of the words 'final order' indicated above, I have no doubt that the second execution application was valid in law and was sufficient to save limitation.

12. On the findings on the validity of the first and second applications, the present application is within time and I do not consider it necessary to examine the third application as it raises a debatable question whether an application with a prayer for attachment and sale of property situate outside the jurisdiction of the court can be one in accordance with law. In this view of the matter, it is difficult to maintain the decision of the execution court,

13. I, therefore, accept the appeal, set aside the order of the Civil Judge, Sambhar dated 12-8-1955 and hold that the execution application is within time. The case is remanded to the execution court for proceeding with it in accordance with law.