Anandilal & Anr. v. Ram Narain & Ors.

Judgment

The Judgment of the Court was delivered by ·. . SJJN, L The shmt point involved in this appeal by certificate fr?m the judgment and order of a Full Bench of the Madhya Pradesh H/gh Court dated October 17, !969 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 Iimita•ion Act, 1 190$ so as to erititle the decree-holder fo claim exclusion of the period duri~g ·whi.ch there .. was stay of sale but the property was to .co.nt ·nue under a.ttachment,. for the purpose of computation of the p(jtiod of limitation provided by s .. 48 of the Code of' Civil Procedure, 1908. Since the question involved is a substantial · Question of law, the High Court _has granted a certitica~e of fitness Under Art. 133 (!) CC'1 of the Constitution. Facts are ·somewhat comp!ic'ated but it is necessary to diseri- . tangle them ·to bring out the poirit in controvers~. .

One Ghasiram, 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· Jµdge, Ujjain against one Bheraji, the predecessor-in-title of 1espon• dents Nos. 2 and 3 Chunnilal and An~ndilal, 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 Court stayed execution of the decree under Order XLI, r. 5 of the Code on condition that the appelfants-defendants furnished ·security . for the due satisfaction of. the decree. Ratanlal, father of the two appellants Anandifal ancl Jarikilal; 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 .oJL February 14, !94l. While the revision was pending before the Judicial·.

Committee, the decreeholder Ghasiram put the decree in execution against the judgmentdebtors as also against the surpty on February 23, 1939 for attachment and sale of their immoveable properties. It appears that some ANANDILAL v. RAM NARAIN (Sen, J.) houses and certain zamindari. lands of the surety Ratanlal were attached in execution .,,f the decree. He. raised· objections to the attachment of his property but the same were rejected on ·December 9, 1939. Against the order dismissing his ·objections, ·the surety Ratanlal filed an appeal before the Gwalior High Court which· was dismissed on July 22, 1940. He then filed a Mi8cellaneous Appeal before the Judicial Committee of th~ Gwalior State. It is common ground.that in thai appeal the Judicial Committee passed an interim order dated Augu~t 16, 1940 directing that until further order; the nroperties attached in execution sh~ll conti!rne to rema;n under attachment but further proceedings for the sale thereof shall remain stayed.

On November 24, 1944 the Judicial Committee dismissed the said appeal and consequently the interim stay stood· dissolved. Thereafter, the present respondent No. 1 Ram Narain appears to have purchased the decree from the heirs of the original decree· holder 11nd the execution proceedings were resumed. The execution application filed by him was however dismissed for default on June lt, l 945 . .It was restored on December 14, 1946 but was again dismissed for default on January 21, 1954 as· the counsel for the dscree·holder stated that he had no instruction. : Thereafter, a fresh 'application for execution was filed by the decreehold<rr on February 18, 1954. This application was opposed by the surety Ratanlal inter ali'!. on the ground that it wa; barred by limitation having been filed beyond the period of 12 years prescribed by s. 48 ofthe Code. The question is whether respondent No. 1 Ram Narain, the assignee'holder, was entitled.to exclusion.of the period from August 16, 1940 to November 241 1944 under. s.

15 (l) of the Limitation Act for computation of the period of 12 years· prescribed und·er s. 48 of.the Code. The District Judge, Ujjain rejected the· objection raised by the appellants holding that although the stay of execution was partial in as much as only sale of t]\e attached pro.perties had been staye'd by the Judicial Committee, the decree·holder was ·entitled to the benefit of s. 15 (!). 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 learned Single Judge held that an order of partial stay like the one in question 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 (I) of the Limitation Act . r 81() SUPRE!JE COURT REPORTS (1984] 3 s.c·R. I\ . was not attracted. He understood the decision of Grille, C.J. and J .. Sen, J. in Sitaram & .Ors. v. Chunilalsdi}) as laying. down that s.

15 (I) was applicable only when there is absolute stay of excution .. Aggrieved by the decision of the learned Single judge, respon- • dent No. 1 preferred a Letters Patent Appeal which was referred by a Division Bench to a Full Bench as the question wh,et.her a partial stay was within s. 15 (I) of ,the Limitation Act was o! 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 Limiiation Act . like any other enactment must receive a -,construction which the language in its . pl;\ in meaning is capable· of bearing and that there was no justification for placing a narrow and restricted construction. on the word, ·"exec.ution" 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-~ AcGording to the Full Bench, such a construction was not · warranted as it would involve reading into the section words such as "totally; wholly, as a whole, or. by all possible means" which are . E. not·there. According to its plain language,.it held, thats. 15(1) did not exclude ·a partial stay of execution. After referring. to several decisions of differcnf High Courts, the Full 'Aench particularly. placed relianc~ on the deeisjon of the Culcutta High Court in Sreenath Roy v. Radhanath. Mookerjfj!(2) holding that. the words "executioa of the decree"· mean enforcement of. the decree by what is known as by any of the "processes of execution'.'. It accordingly held that the word "execiltion" in S; 15 (I) mu~t be cconstrued in a broad sense taking in all or any of the v;irious · processes of execution and ob- . served that the decision in Sitaram's case,' supra, does not fake 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, 19.44 under s. 15 ( l) of the Limitation A.ct·· ' in reckoning the·period of 12 years prescribed by s. 48 of the Code. We concur with the view expressed by the Full Bench. It ·is well settled that s. 48 ofthe C~de was controlled by 8, 15 (!) of the Limitation Act. S, 48 of the Code enacted a rule of limitation and prescribed a period of 12 years for an application fbr execution of decrees and orders.·· ·It has since been. repealed bys. 28 of the Limitation Act, 1963 which enact~ that "in the Code of Civil (1) IL!l. (1944) Nag. 2SO (Z) lLR (1983) 9 cal. 773. ANANDILAL v. RAM NARAIN (Sen, J.) . Proced.ure. 190.8, (Act V of 1908), s. 48 shall be omitted". In its phcj a new provision Art. 136 has been introduced and that prescribes "for the execution of any·decree (other than a decree .granting a m1ndatory injunction)' or order of any Ci vii Court a period of 12 years, etc."

Thus, the substanc' ofs.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 foterpreting s. 48 might have to be referred to, it is necessary to give reasons. There has been a sharp divergence of jµdicial authority on the ._question whether a partial stay was within s. 15 (l) cf the Limitation Act, ·The preponderance of judicial opinion appears to be in favour 'of the view that s. 15 ( l) contemplates an absolute stay. There .is aJong line of decisions starting from Kundo Mal & Ors. v. Firm Daul~! Ram Vidya PrakashC'l where Din Muhammad, J. laid down . that if execution ·is not compktely and abs.olutely s\ayed, s. 1·5 {I) of the Limitation Act does not come into play, down to Virchand Kapw Chand v. Maruq/appa & Anrl2l where Sen, J. reaffirmed · . thats.

15 (!) contemplates an absolute stay which reneders the decree-holder incapable of taking ont any proceeding for execution of the decree, w)lich are all b1sed on the dictum of. M2cleod, C. J .. in Chanbasappa v. Holiba.wppal3J to the effect that s. 15 (I) . only applies to an absolute stay. The Patm High Court also took the same view in Kirtyanand Singh v. Prithi Chand La/(4). The dicta of Maclood, C. J. in Chanbbsappo's case and of Din Muhammad, 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 e.g. a stay of ex,cution in one particular mode is not stay of execution 'within tho meaning -of s. 15 (I) if it is open to the decree.-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. JJai Ruxmani('l by the Rangoon High Court in Nachiappa Reddy v. M3tmg fe(6)'and (I) AIR (1940) Lah. 75. (2) AIR ( 194 0 Born. 303. (3) !LR (1924) 48 Bom.4 85. (4) AIR (1929) Pat. 597 • . (5) AIR (1914 Born. 2J.l. (6) AIR 0918) UB 4. SUPREME COURT REP.ORTS by the Culcutta High Court in Govindnath Chqudhur; v. Basiruddin Mondo1(1) where it had.'been held that st-;,y of execution Qf 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. Pl'i/hi ChandLaf,(2) 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 case does not lay do\vn any. contrary proposition.

There, the point appears to have arisen from an order passed by the Court in the Raj Suit to the effect that "the decre.e-holder were to wait· for some time for payment". That order .was subsequently set aside having been in operation for about . seven months.. 1 he decree-holders' .contention was that they were entitled to the benefit of s: 15 (!)with respect to the afore.said peri9d of seven months. Lord Tomlin, deliv,ering the judgment of the Judicial Committee, construed the 4 ~foresa;d order as meaning not an order staying execution within s. 15 0) of the Limitation Act, and observed: Now the first thing to be observed is that at lhe time when that order was made, there was in fact no application for execution pending ~tall. It was an order again made in the Raj Snit and not in the rent suits; it was a.n .order . made on application by the decr-ee-holders seeking leave to proceed against property in the h~nds of the receiver in the· Raj snit.

It was an order which did no: stay at al/, but simply said that so far as I.hat application in that suit. was con.cerned the appellants were to wait. That seems to their Lordships not to to be in any sen!Je within th.e meaning of the section a stay of the execution by injuncti011 or order." (Emphasis supplied) In Lala Baijnath Prosad & Ors. v. Nursinghdas Guji'ati(3) 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 (I) AIR (1921) Cal. 606. (2)· AIR (1933) PC 52. (3) A{R (1958) Cal. J, I • ' 'f ANANDILAL v. RAM NARAIN (Sen, J.) executing his decree, it is but reasonable that time should · not run against him so long as he remaills disabled arid the section says so.

But there seems to be no reason why the section should be construed as meaning that even when the .. injunction or order is limited to one or some of s~veral judgment-debtors or to one or some of their properties or to some particular mode. of execution and ~ve.n when the de,ree-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 Ju~tice observed tliat in such a case the execution of the !lecree is n()t stayed but only execution in c'ertain · waysand against certain persons or properties 1s prevented, and then added :

"B\lt assuming 'stayed' include 'stayed iu part', the utmost that ·Can be claimed under the terms of the section is that if a decree-holder is restrained for a time from proceeding against some particular judgment-debtor or some particular · property or in some particular way, aud'whcn the bar is . lifted, he applies for execution against the same judgment' debter or the same property or in the same way, he will be entitled to exclude the period during ivhich )le remained· Le. strained.'~ We feel that, there is no justification for placing a rigid con: struction 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 legisJa, lion 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('l) 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 w:ith procedural ·law. rt is also true that in co~struing· statutes of limitati'on considerations of hardship and anamoly are out of place. Nevertheless, it is, we think, permissible to adopt· a beneficent construction of a rule of limitation if alternative constructions arc possible. It is plain on the terms of s. 15(1) t)at the word "execution" appearing in the collocation of words "the executionof which has been stayed" must be consfru,d in a liberal and bro~d sense. As observed by the Calcutta High Court in Sree~ath Roy's case, Sl!pra, the w9rds "execution of the decree" mean the enforcement of the decr~e ·by what js known as "process of execution". SUPREME COURT REPQKTS [1984)

3 s.c.a Agreeing with the Full Bench, we aie inclined to the view that \he word "execution" ins. ·15(1) embraces all the appropriate means by which a decree is enforced. It includes all process an,d · proceeding in aid of, or supplemental to, execution. We find no rationai basis for adopting a·narrow and restricted coµstniction on a beneficent provision like the one contained in s. 15(1). There is no reason wby s 15 (!)should be given a restricted meaning as allowing the ben~fit to a decree-holder where there is a complete or 'absolute stay of execution and not a partial stay i e. a stay which make& the decree altogether inexecutable. Nor can we subscribe to the proposition that in cases of partial stay, the benefit ~nder s. 15(1) can be had only where &n execution application is directed against the same judgment-debtor or the ~ame property, as ~gainst 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 cir order has prevented the dec;n,e·holder from executing the decree, then irrespective o~ 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 lhe period during which the injunction or order. remained iu · 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 i~ for the decree-holder to choose ·which of them he will pursue .. For these reasons, the appeal must fail and is dismissed with costs. N.V.K. Appeal dismis.•ed.