Gopal Chunder Manna and ors. Vs. GosaIn Das Kalay - Court Judgment

Banerjee, J.

1. This appeal arises out of an application for execution of a decree for possession of certain immoveable property and for damages. The first Court, on the 21st May 1886, gave the plaintiff a decree for possession and for damages against all the defendants. Against that decree all the defendants, except No. 1, preferred an appeal, and the Appellate Court, on the 2nd July 1887, reversed so much of the decree as made the appealing defendants liable for damages, but it affirmed the decree in every other respect. And a second appeal from the decree of the Appellate Court was dismissed by the High Court on the 9th of July 1888.

2. The first application for execution was made in the Court of the first Munsif of Howrah on the 7th of July 1891; it was returned by the first Munsif on the 21st of August following for want of jurisdiction; and it was presented on the same day to the proper Court. The application asked for issue of notice on the judgment-debtor for delivery of possession and for attachment and sale of certain immoveable properties for realization of the costs and damages decreed. Notice under Section 248 of the Code was issued on the judgment-debtors on the 8th September 1891, and on their objection that the particulars required by Section 235 were incorrectly stated, the application was, by an order of the Court, dated the llth January 1892, allowed to be amended. This last-mentioned order was reversed by the Appellate Court, and the Munsif was directed to deal with the application for execution as originally made; and the execution case was dismissed by the Munsif, on the 13th July 1892, for want of prosecution. A second application for execution made on the 15th August 1893 was rejected on the 4th April 1894 for incorrectness in the statement of necessary particulars, and then the present application was made on the 19th of June 1894. The judgment-debtors urge that it was barred by limitation; the first Court gave effect to this objection, but the Lower Appellate Court has reversed the decision of the first Court, and ordered execution to proceed; and hence this appeal by the judgment-debtors.

3. Two contentions have been raised in this appeal:

First--That execution is barred against all the defendants, as the application of the 7th of July 1891 was not one according to law ; and as there was no other application within three years even from the date of the decree of the High Court; and

Second---That even if the application of the 7th of July 1891 be held to be one according to law, still execution is barred against defendant No. 1, as time runs in his case, not from the date of the decree of the High Court, but from the date of the decree of the first Court, that is, the 21st of May 1886, there having been no appeal by or against him from that decree.

4. In support of the first contention, it is argued by the learned Vakil for the appellants that many of the particulars required by Section 235 of the Code were incorrectly stated in the application of the 7th of July 1891, and that it cannot therefore be regarded as an application made according to law within the meaning of Article 179, Clause 4 of Schedule II of the Limitation Act; and the cases of Asgar Ali v. Troilokya Nath Ghose (1890) I.L.R. 17 Cal. 631 and Gopal Sah v. Janki Koer (1895) I.L.R. 23 Cal. 217 are relied upon. It was conceded, however, and very properly conceded, that the decree-holder was entitled under Section 14 of the Limitation Act to exclude from computation the time from the 7th July to the 21st August 1891.

5. That being so, and the decree-holder being admittedly entitled to reckon time as against at least some of the judgment-debtors from the date of the final decree in appeal, that is, the 9th of July 1888, execution is not barred against them, if the application of the 7th July 1891 is one within the meaning of Clause 4 of Article 179, that is, if it is an application according to law within the meaning of that Clause.

6. Now the question whether an application for execution or for taking some step in aid of execution is one according to law within the meaning of Article 179, Clause (4), has to be determined with reference to the circumstances of each case; and while on the one hand an application must be in substantial compliance with the law in order that it may be regarded as one coming within the meaning of Clause 4, on the other hand, it is not every informality that would vitiate an application and take it out of that Clause. Were it otherwise, bond fide applications for execution would fail to save limitation owing to trivial defects of form,---a result which I do not think the Legislature could have intended. The view I take is amply supported by the authority of decided cases of which I need only refer to Bal Kishen v. Bedmati (1892) I.L.R. 20 Cal. 388 and Rama v. Varada (1892) I.L.R. 16 Mad. 142.

7. The two cases cited by the learned Vakil for the appellants are clearly distinguishable from the present. In Asgar Ali v. Troilokya Nath Ghose (1890) I.L.R. 17 Cal. 631 while the decree-holder, as I gather from the judgment of Prinsep, J., asked for the sale of the immoveable property of the judgment-debtor 'as per list,' no list was attached to the application, so that the application did not comply with Section 237 of the Code, and no execution could be taken out thereon owing to this material defect. So also in Gopal Sah v. Janki Koer (1895) I.L.R. 23 Cal. 217 the application, which was considered to be one not according to law, was found to be materially defective in not complying with Sections 235 to 238. Mr. Justice Prinsep in his judgment in this last mentioned case observes : 'One of the errors committed by the decree-holder was in misstating the amount of his decree in a lesser sum than he was given, and the Subordinate Judge has consequently limited the execution to that smaller sum. If that had been the only defect the decree would have been capable of being executed for the smaller sum. But in other respects, which it is unnecessary to mention, the application failed to comply with the requirements of Sections 235, 236, 237 and 238 applicable to the case.' These observations go to some extent to support the view I take, that it is only material defects that can vitiate an application. In the present case, the defects in the application of the 7th of July 1891, as the Lower Appellate Court has shown, were not of a material character. The application asked for delivery of possession of the property covered by the decree, and the decree could well have been executed so far as this part of the prayer was concerned. It is admitted again that the application contained a list of the immoveable property sought to be attached and sold for the realization of the money decreed, so that there was no want of compliance with the provisions of Section 237 of the Code here. Moreover, though the amendment allowed by the first Court was set aside on appeal, the Appellate Court did not treat the application as one not made according to law, but remanded the case to the first Court to deal with the application as originally made--a course which it could not have taken if the application had been considered as not made according to law. Lastly, granting that the application of the 7th of July 1891 was informal and defective as an application for execution of decree, it was at any rate, as pointed out by the learned Vakil for the respondent, an application 'o take some step in aid of execution, that is to say, to issue a notice under Section 248 of the Code which was here necessary, the decree having been passed more than one year before. A notice was issued according to the prayer made in this application, and the application and the notice were sufficient to keep the decree alive. See Behari Lal v. Salik Ram (1878) I.L.R. 1 All. 675 and Dhonkal v. Phakkar (1893) I.L.R. 15 All. 84.

8. The first contention of the appellants must therefore fail.

9. In support of the second contention that time runs as regards defendant No. 1 from the date of the decree of the first Court, the cases of Hur Proshad v. Enayet IIossein (1878) 2 C.L.R. 471 and Raghu Nath v. Abdul Hye (1886) I.L.R. 14 Cal. 26 are relied upon. These cases are in conflict with that of Gunga Moyce v. Shib Sunker (1878) 3 C.L.R. 430 which I am inclined to follow, as the decision in this last mentioned case appears to be more in conformity with the language of the law, than that in the two cases cited for the appellants. Moreover, Explanation I to Article 179 of Schedule II of the Limitation Act makes a distinction between a joint decree against several defendants and a decree in which separate reliefs are granted against different defendants, with reference to Clause 4 while no such distinction is made with reference to Clause 2; and this to my mind is a clear indication that the Legislature intended that time should run from the date of the final decree of the Appellate Court where there has been an appeal irrespective of the question whether the appeal related to the whole decree or not.

10. In this conflict of decisions in this Court, a reference to a Full Bench becomes necessary, and as this is an appeal from an Appellate order having the force of a decree, the whole case must be referred to a Full Bench.

Maclean, C.J.

11. I agree that this case should be referred to a Full Bench reserving my opinion upon the question raised.

12. Babu Prosonno Gopal Roy, for the Appellant.

13. Babu Nil Madhub Bose and Babu Shib Chunder Palit, for the Respondent.

14. Babu Prosonno Gopal Roy.---The application for execution is barred by limitation. It is a defective application, as it does not give the right number of the suit, the date, and the amount of the decree. That being so, the application is not one made in accordance with law. See Section 235 of the Code of Civil Procedure, and the cases of Gopal Sah v. Janki Koer (1895) I.L.R. 23 Cal. 217 (223) and Chowdhry Paroosh Ram Das v. Kali Puddo Banerjee (1889) I.L.R. 17 Cal. 53. If it is an application not made in accordance with law, the issue of a notice under Section 248 of the Code of Civil Procedure would not save limitation. Application in aid of execution must be made according to law, in furtherance of the execution proceedings under a decree. See Sujan Singh v. Hira Singh (1889) I L.R. 12 All. 399 (402) and Dalichand v. Bai Shivkor (1890) I.L.R. 15 Bom. 242. The execution as against defendant No. 1, at least, has been barred by limitation. Limitation as against him would run either from the date of the decree of the first Court, or of the Appellate Court, as there was no appeal by or against him. See the cases of Hur Proshaud Roy v. Enayet Hossein (1878) 2 C. L. R. 471; Harkant Sen v. Biraj Mohan Roy. (1895) I.L. R. 23 Cal. 876; Mashiat-un-nissa v. Rani (1889) I.L.R. 13 All 1; Muthu v. Chellappa (1889) I.L.R. 12 Mad. 479: Rughu Nath Singh v. Pareshram Mahata (1882) I.L.R. 9 Cal. 635; Mullick Ahmed Zumma v. Mahomed Syed (1880) I. L. R. 6 Cal. 194

15. Babu Nil Madhub Bose, for the Respondent, was not called upon.

16. The opinion of the Full Bench was delivered by Maclean, C.J. (Macpherson, Trevelyan, Banerjee, and Jenkins, JJ., concurring).

Maclean, C.J.

17. Although in the reference I have reserved my opinion on the point referred to the Full Bench, I had the advantage of hearing the arguments addressed to Mr. Justice Banerjee and myself in the Court below, and of discussing the matter with him, and I am in entire agreement with the opinion he has expressed upon the question of whether the application for execution of the 7th July 1891 was or was not one according to law. I concur both in the reasoning and in the conclusion expressed by Mr. Justice Banerjee; and as regards the point which has been referred to the Full Bench, namely, whether the time from which the period is to begin to run is, as regards the defendant No. 1, the date of the decree pronounced on the appeal or the date of the decree of the first Court, I am of opinion that it begins to run from the date of the decree on appeal. I only propose to add one or two brief remarks to what Mr. Justice Banerjee has said. With respect to the case decided in the Allahabad High Court, the case of Mashiat-un-nissa v. Rani (1889) I.L.R. 13 All. 1 the first comment I make is that in that case there was a marked difference of opinion amongst the Judges who heard and decided it, and, in the next place, the facts were clearly distinguishable from those of the present case, inasmuch as here the decree was a joint one, whilst in the Allahabad case the decrees were separate, or any way tantamount to separate decrees against each of the defendants. There is no doubt a dictum of C.J. Edge which supports the present appellant's view, but it was obiter and not necessary for the purposes of that particular decision. I allude to the passage as to the application of Clause 2, article 179 on page 13. For myself I prefer the reasoning and the conclusion of the two learned Judges who were in the minority in that case, and to read the language of sub-Section 2 of Article 179 of the second schedule to the Limitation Act according to the ordinary signification of the words used. That article says that, where there has been an appeal, the date of the final decree or order of the Appellate Court shall be taken to be the time from which the period is to begin to run. There is no such qualification in the article as is suggested by the majority of the Judges in the Allahabad case, and which must be read into the article in order to support their view, n(sic) is there anything to lead me to suppose that any such qualification or modification was intended by the Legislature. The language of the article is reasonably clear, and in my opinion the safer course is to construe it according to the ordinary meaning of the words used. Again, upon the question of convenience, the convenience seems to me to be all in favour of the view which I take. In my opinion, the answer to the question submitted to us should be, that the time runs, as against the defendant No. 1, from the date of the final order of the Appellate Court, which was that of the High Court, dated the 9th July 1888; and that being so, the application for execution of the 7th July 1891 was not out of time. The appeal fails and must be dismissed with costs, including the costs of this reference.

Article 179, Clause 2:

Description of application. Period of limitation. Time from which period begins

to run

For the execution of a decree Three years; or where * * *

or order of any Civil Court not a certified copy of 2 (where there has been an

provided for by No. 180 or by decree or order has appeal) the date of the final

the Code of Civil Procedure, been registered, six decree or order of the

Section 230. years. Appellate Court, or

Macpherson, J.

2. I agree with the Chief Justice on both points.

Trevelyan, J.

3. I also agree.

Banerjee, J.

4. I am of the same opinion.

Jenkins, J.

5. I am of the same opinion.