Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Appeal from Original Order No. 2 of 1961, decided on 18th July 1968.
, Ss. I1 & 47 and O. XXI, r. 10 read with Limitation Act (IX of 1908), Art. 181(S) Execution proceedings ‑--Limitation ‑---Res judicata--‑ Previous execution application dismissed for default‑No adjudication as to limitation made by execution Court‑Question of limitation can be raised on subsequent execution application being filed -----Res judicata‑Principle applicable only if there was express or implied determination of question in previous proceeding.
A notice under Order XXI, rule 22 has served on the judg ment‑debtor who appeared and prayed for time for filing objection to the execution. When the case was taken up on the adjourned date to enable the Judgment‑debtor to file the objection he did not appear. The Court did not give any direction to the decrees bolder to take further steps. In the absence of any such direction it cannot be said that the executing Court impliedly determined the question of limitation.
A decree‑holder is entitled to ask for execution within three years from date of the decree or where an application for execu tion is filed the limitation would run from the date of the final order passed thereon. But the application contemplated in clause (5) of Art. 182, Limitation Act is an application giving rise to mortgage Execution Case instituted previously which was filed admittedly beyond three years It is, therefore, of paramount importance to examine and hold if in that petition the question of limitation was impliedly adjudicated upon.
There must be some order which may be construed to hold that there was an implied adjudication of the decree being execut able. There was no order in the execution case showing that there was an implied decision relating to executability of the decree.
Mungul Pershad Dichit and another v. Grija Kant Lahirl Chowdhury 8 I A 123; Murlidhar Suku v. Nursingh Das 17 C W N 113; Lalit Mohan Roy and others v. Sarat Chandra Saha A I R 1933 Cal. 855; Promoth Nath Daw v. Habu Mia and another A I R 1945 Cal. 335 ; Aswani Kumar Das Gupta and others v. Karamat All Khan A I R 1948 Cal. 165 and Krishna Mohan Samanta and another v. Khanda Moyee Dasi A I R 1954 Cal. 295 distinguished.
Sheikh Bundan v. Ramchandra Bhujgaya I L R 11 Bom. 537 ref.
Rafatulla Farazl v. Kundarmal Agarwala and another 38 C W N 1144 and Lunatic Karali Prosad Roy v. Probodh Chandra Mftra and others 54 C W N 901,) rel.
M. A. Rouf for Appellant.
Kamaluddin Hossain for Respondents.
The Question raised in this appeal is interesting to consider but difficult to determine. The appellant Khabiruddin Ahmed was adjudged a debtor in a suit instituted by the respondent, the Noakhali Union Bark Limited for a sum of Rs. 40,440. In the Mortgage Suit No. 61 of 1948, the decree was passed on the 3rd March 1952. The first Mortgage Execution Case, No. being 66 of 1955 was dismissed. Thereafter, O. C. Execution Case 33 of 1956 was started. The learned Subordinate Judge by his order dated 19‑3‑57 directed it to be struck off as time‑barred. An appeal was preferred to this Court against that order. A Division Bench of this Court by an order made on 24‑3‑60 remanded the matter to the learned Subordinate Judge for disposal in accordance with law after giving opportunity to the parties to adduce further evidence in support of their respective cases. The learned Judge by his order dated 13‑8‑60 dismissed the application under section 47 of the Code of Civil Procedure filed by the judgment‑debtor holding that the execution case challenegd by that application was not barred by law of limitation.
Aggrieved by the order dated 13‑8‑60, the present appeal has been preferred.
Mr. M. A. Rouf, learned Advocate for the judgment‑debtor A appellant, submits that he finds his case undefendable morally but the law permits his client to claim that the execution case is time‑barred.
Mr. Kamaluddin Hossain learned Advocate for the respondent raises the pleas of res judicata and contends that the judgment‑debtor, is precluded from urging the question of limitation at this stage.
The question raised involves consideration as to what happened in the first execution case, namely, mortgage Execution Case No. 66 of 1955 instituted by the decree‑holder. The proceedings was instituted on 16‑9‑55 and it came to a termination on 10‑12‑55. Since reference to the orders to this Execution case will be necessary, I find it convenient to read its entire order sheet here :‑
"1. 16‑9‑55 Register, Requisites put in. Issue notice
under Order XXI, rule 22, C. P. C.
fixing 19‑11‑55 for return and order.
(Sd.) A. M. Hossain,
S. J.
2. 19‑11‑55 Notice served J. Dr. files a petition
praying for time to file objection. To
10‑12‑55 for the same.
(Sd.) A. M. Hossain.
3. do 12‑55 No step taken. D. H's. pleader declines
to proceed. Ordered that the case be
dismissed for default.
(Sd.) A. M. Hossain.
S. J.
4. do Petition filed by the J. Dr. be kept with
the record.
(Sd.) A. M. Hossain,
S. J."
It is to be remembered that on the 3rd March 1952 the decree was passed. The first Execution Case having been instituted on 16‑9‑55 it was clearly beyond three years and as such the barred by law of limitation unless respondent is able to show some thing to save it.
While challenging the present order made on 13th August 1960, Mr. Rouf's contention is that since the earlier execution case w4s time‑barred the present Execution case although filed within three years from, the date of the disposal of the first Execution case should also be held to be time‑barred.
Mr. Kamaluddin Hossain in support of his contention, that the plea of res judicata applies, places his reliance on the case of Mungul Pershad Dichit and another v. Grija Kant Lahiri Chowdhury (8 I A 123). In that case it was held that in an execution proceeding if order of attachment is made it would be held that the question of limitation was impliedly decided and such a question would not be allowed to be raised subsequently. In that case their Lordships of the Privy Council observed :‑
"Here art order for attachment was made by the Subordinate Judge on the 8th of October 1874, after notice served on the judgment‑debtor on the 23rd September 1874, to show cause why the decree should not be executed against him. The order was made by a Court having competent jurisdiction to try and determine whether the decree was barred by limitation. N o appeal was preferred against it ; it was acted upon and the property sought to be sold under it was attached, and remained under attachment until the application for the same now under consideration was made."
From the recital of the facts it appears that the notice was served on the judgment‑debtor on the 23rd September 187 an order for attachment was made by the Subordinate Judge on the 8th October 1874. On these facts their Lordships observed :‑
"But as already observed, the Subordinate Judge had jurisdiction upon the petition of the 8th October 1874, to determine whether the decree was barred on the 8th of October 1874, and he made an order that an attachment should issue. He, whether right or wrong, must be considered to have determined that it was not barred."
It was further observed :‑
"Here the judgment‑debtor, so far from appealing against the order for the attachment, acknowledged its validity, and presented the petition for the 25th of January 1874, by which he prayed that the sale under the attachment might be stayed for three months .
It will therefore be seen that in the case of Mungul Pershad there was an order of attachment. This order would by implication show that the question of limitation was considered and determined. 'There is no such positive order in the Execution Case No. 66 of 1955, the order sheet of which has already been quoted in ex tenso. In this case judgment‑debtor never submitted to the jurisdiction by applying for the sale as was done in the case of Mungut Pershad. Their Lordships in that case held that the plea of res judicata would apply and observed :‑
"A Judge in a suit upon a cause of action is bound to dismiss the suit, or to decree for the defendant, if it appears that the cause of action is barred by limitation. But if instead of dismissing the suit he decrees for the plaintiff, his decree is valid, unless reversed upon appeal; and the defendant cannot, upon an application to execute the decree, set up as an answer that the cause of action was barred by limitation."
For the reasons already indicated the case of Mungul Pershad Dichit and another is distinguishable from the facts of the case before us.
The next case on which reliance has been placed by Mr. Hossain is the decision of a Division Bench of the Calcutta High Court consisting of Mookerjee and Teunon JJ., in the case Murlldhar Suku v. Nursingh Das (17 C V N 113). In that case a decree was made on the 7‑8‑1899 and three applications for execution were filled within the time allowed by law. The 4th application for execution was presented on the 5th October 1907. Thereafter another application for execution was presented on the 6th August 1908. The application presented on the 6th August 1908 which was being considered by the Court was admittedly within time allowed by law after the date of the previous application for execution. It was further argued that the 4th application for execution was made after the period of limitation inasmuch as the 3rd application was submitted on the 5th August 1904 and the 4th application was submitted on the 5th October 1907 three years after the 3rd application. Therefore it was urged that the 4th application was beyond time. When this question was sought to be raised in the proceeding started on the 5th application, it was contended on behalf of the decree -holder that there was in these facts and adjudication by the executing Court about limitation and consequently the judgment debtor cannot raise the question of Imitation. The learned Judges held that the question of limitation was no longer available to be raised in that case. The learned Judges noticed the facts of that case in the following terms :‑
Now, we find that on the 5th October 1907 an order was made by the Court for the issue of notice upon the judgment -debtor under section 248, C. P. C. On the 29th November following there was an order for the issue of fresh notice upon the application of the decree‑holder. On the 20th December 1907 it was reported that the notice had been served and that the service was proved. The judgment‑debtor appeared and prayed for time to enable him to put in his objection to the execution. Thereupon the case was adjourned to the 4th January 1908. On that date the judgment‑debtor did not enter any appearance. Thereupon the Court recorded the following order Decree‑holder is to take further steps on or before the 7th January 1908'.
The learned Judges reached the conclusion that the plea of limitation was barred by the principle of res judicata in that proceeding. It will appear, on closer examination of the facts in the case before us there was also a notice which was served on the judgment‑debtor who appeared and prayed for tithe for filing objection to the execution. Thus for both the cases proceeded on the same lines. When the case was taken up on the adjourned date to enable the judgment‑debtor to file the objection he did not appear as in the case before us. But thereafter the Court made the order : Decree‑holder is to take further steps on or before the 7th January 1908". In making this order a Court must be deemed to have made relevant consideration as observed by their Lordships of the Privy Council in Mungul Fershad's case and impliedly held that the Court found that the execution case was not barred by law of limitation. In the instant case there is no such direction on the decree‑holder to take further steps. In the absence of any such direction it cannot be said that the executing Court impliedly determined the question of limitation. The views expressed above will find support in the case of Murlidhar Sukul itself and it appears to us that had there been no such order directing the decree‑holder as notices above the decision reached by the learned Judges might have been different. Referring to the order directing the decree‑holder to take further steps, the learned Judges observed :‑
"This order necessarily implies an adjudication that the decree at the time was capable of execution."
We have searched in vain for such an order in the execution Case No. 66 of 1955.
It is true, as has been held in Murlidhar's case, it is not essential that there should be an order for attachment but what is necessary is the adjudication to the effect that the decree was capable of execution. No such determination can be spelt out in the orders made in the execution case before us and as such Murli Dhar's case is clearly distinguishable. In the case of Sheikh. Budzrn v. Ramchandra Bhujgaya (I L R 11 Bom. 537) in that case it was observed :‑‑
"A judgment implies the judicial determination of a point contested either directly or by implication."
It was further observed :‑
t was not executed, because the judgment‑creditor failed to pay the requisite fee. Such an order, prima facie only of an executive character, could not possibly have the effect of res judicata, unless the judgment‑debtor being called on to dispute, if he wished or if he could, a certain proposition of right and consequential demand of relief or action by the judgment‑creditor, had then either failed in his contention to the contrary, or, at any rate, allowed the judgment to go by default.
In this case the decree‑holder failed to take any step and decline to proceed. It would appear from the observation made in Sheikh Bunda's case that such an order could not be con structed as adjudication of the rights, of the parties involved in such a proceeding.
It is true section 3 imposes a duty on Court to decide the question of limitation in every suit instituted, appeal preferred or an application made before a Court irrespective of whether a question of limitation is raised. But that stage is reached only when the Court is called upon to adjudicate upon the rights of the parties in any manner.
In this case the period of limitation would be governed by article 182(5) of the First Schedule to the Limitation Act. It reads as follows
182. For the execution Three years ; or, I . . . . . .
of a decree or order where a certified 2 . . . . . .
of any Civil Court copy of the 3 . . . . . .
not provided for by decree or order 4. . .
Article 183 or by has been regis‑ 5. (Where the
section 48 of the Coda tered, six years. application next
of Civil Procedures , hereinafter mentioned
1908. has been made) the
date of the final
order passed on an
application made in
accordance with law
to the proper Court
for execution, or to
take some step in aid
of execution of the
decree or order ; or
6
7 .
Explanation I . . .
Explanation II. . .
It will therefore be seen, broadly speaking, that a decree‑holder is entitled to ask for execution within three years from date of the decree or where an application for execution is filed the limitation would run from the date of the final order passed thereon. But the application contemplated in clause (5) is an application giving rise to mortgage Execution Case No. 66 of 1955 which was filed admittedly beyond three years. It is, therefore, of paramount importance to examine and hold if in that petition the question of limitation was impliedly adjudicate upon. Our answer to this question must be, on the facts and the circumstances of the present case, in the negative. This view expressed by us finds support in the case of Rafatullah Farazi v. Kundarmal Agarwala and another (36 C W N 1144). In that case a Division Bench of the Calcutta High Court consisting of Jukerjee A. C. J. and S. K. Ghose, J. held that in a case in which a notice was served on the judgment‑debtor who did not appear but the decree‑holder appeared and allowed the Execution case to be dismissed, the judgment‑debtor would not be precluded from raising the question of limitation in subsequent execution proceeding. In that case the Court recorded an order that "Limitation had prima facie proved". This order was constructed to mean that the application was not barred by limitation. Thereafter a notice was issued to the judgment, debtor to show cause why execution should not be proceeded with against him and a date was fixed for the purpose. The notice issued was actually served on the judgment‑debtor who did not appear. The decree‑holders were also absent and had taken no steps and the Court dismissed the application for execution. The application for execution was admittedly of time by 13 days. When another execution case was started on the 9th January 1932, the judgment‑debtor contended that toe previous application had been filed beyond the period of limitation and as such the application dated 9th January 1932 was also out of time. The learned Judges took the view that the judgment‑debtor was entitled to raise this objection and they expressed themselves in the following terms:‑
The finding that a prima facie case had been made out showing that the application for execution was not time‑barred was a finding arrived at ex parte. It was after that finding that notice was served on the judgment‑debtor. But neither of the parties thereafter came to Court and got any decision on the question of limitation which arose. The ex parte order which had been recorded against the judgment‑debtor and which was to the effect that the application for execution was prima facie within time cannot in our opinion, be taken to operate as res judicata or by way of estoppel or on any principle analogous to it.
Mr. Rouf rightly relies on this decision and it appears to the facts of the case before us. In the case before us the execution case was dismissed. As no step was taken and the decree‑holder declined td proceed, there was, therefore, no occasion for determination of the question of limitation.
In the case of Lalit Mohan Roy and others v. Sarat Chandra Saha (A I R 1933 Ca1855), a Division Bench of that Court consisting of Mitter and M.C. Ghose, JJ., held that a judgment‑debtor was precluded from raising the plea of limitation at a subsequent stage in an execution proceeding if he did not avail of an opportunity to raise the plea of limitation and an order for attachment was made. This case is easily distinguishable for an order of attachment, was made which unnecessarily implies that the Court found that the decree was capable of execution. There is no such order in the Mortgage Execution Case No. 66 of 1955.
A similar question was raised in the case of Promoth Nath Daw v. Habu Mia and another (A I R 1945 Cal. 335). In that case a Division Bench consisting of Khundkar and Biswas, JJ., held that a judgment‑debtor having been served with a notice did not appear in the previous proceeding to raise an objection to execution was not entitled to raise the plea of limitation subsequently. Reliance was placed on this case by Mr. Kamaluddin Hossain but the order which was made the foundation of that decision will make the case clearly distinguishable. The order in question was made by the executing Court on the 13th September 1941, in the following terms :‑
"Notice received after service. Decree‑holder's petition dated 9th September 1941 praying for disposing of the case on part satisfaction on receipt of Rs. 50 is put up today. Ordered that the petition is considered and allowed and the case be dismissed on part satisfaction with costs."
In the litre of reasoning adopted by the learned Judges in Promoth Nath's case will be found the following observation
"The question really is whether the order of the executing Court, dated 13th September 1941 in the present case was such an adjudication upon the merits of the application as to import a declaration that the decree was still alive and capable of execution. There can be little doubt, provided the judgment‑debtor had notice of the application for execution, that he would be bound by any declaration, even though it were merely implicit that the decree was still alive. It is not disputed in the present case, that notice under Order XXI, rule 22, Civil P. C., was served upon the judgment‑debtor. On behalf of the respondents, it is contended that the order of 13th September 1941 does not in any way show that the Court was holding the execution case to be competent, or that it was deciding that the decree was alive. We cannot see our way to entertain this contention. The judgment refers to the petition, dated 9th September 1941, for disposing of the case on part satisfaction, and the order shows that effect was given to that application inasmuch as the case was dismissed on part satisfaction. It is not conceivable that the Court would have made such an order unless it was in the first instance of the opinion that the application for execution was within time."
It will therefore be seen that in view of the application dated 9th September for disposing of the case on part satisfaction, the learned Judges felt that unless the executing Court was satisfied that it was in time the question of dismissing it would not arise. In the case before us there is no such application for recording part satisfaction of a decree and as such as already observed by us, this case is not applicable to the facts of the case before us,
Mr. Hossain also places reliance on the case of Aswani Kumar Das Gupta and others v. Keramat Ali Khan (A I R 1948 Cal. 165). In that case there were two execution cases. The first execution case was dismissed and thereafter second execution case was started. In the second execution case the judgment‑debtor raised the question of limitation on the ground that the first execution case was barred by limitation. The learned Single Judge who decided the case held that the judgment‑debtor was precluded from raising that plea of lir4itation in the second execution case for his failure to do so in the first one. This case is also distinguishable, for, in that case the Court directed the decree‑holder to file costs and necessary requisites. There is no such order in the case before us. I would now quote observation of G. N. Das, J., in that case :
In this view it must be taken that the Court in passing its order on 7th January 1943 was of opinion that the decree was executable and further process in execution might be taken in execution of the decree. The order necessarily implied an adjudication that the decree at the time was capable of execution."
Mr. Hossain failed to point out any observation relating to executability of the decree in the order sheet quoted in extenso earlier in this judgment. The view taken by us that there must be some order which may be construed to hold that there was an implied adjudication of the decree being executable finds supports in the case of Lunatic Karali Prosad Roy v. Probodh Chandra Mitra and others (54 C W N 900). In that case as Division Bench of that Court consisting of Harris, C. J., and Banerjee, J., held that the question of res judicata would not arise in a case in which the judgment‑debtor, failed to appear in response to the notice served on him. In that case the learned Judges seem to have taken the view that the executing Court is required to take notice of the question of limitation by reason of section 3 of the Act and when it fails to do so the question of the plea of res judicata does not arise. In this case the learned Judges held that a judgment‑debtor is not precluded from raising the point of limitation at the time of attachment or sale irrespective of whether he was served with a notice under Order XXI, rule 22 of the Code of Civil Procedure. It seems that the view taken by the learned Judges is that there should be express declaration of determination of the question of limitation. This view appears to be contrary to the principle laid down in the case referred to above and in the case before us it is not necessary for us to express any opinion about this case. It is sufficient for the case with which we are concerned to hold that there was, no order in the Execution Case No. 66 of 1955 showing that there was an implied decision relating to executability of the decree.
The next case relied on by Mr. Hossain is a decision of a Single Judge of the Calcutta High Court in the case of Krishna Mohan Samanta and another v. Khandu Moyee Dasi (A I R 1954 Cal. 295). In that case there was a positive order to proceed with the exception that itself shows that by reason of section 3 of the Limitation Act the Court impliedly adjudicated upon the question of limitation. That case is also therefore clearly distinguishable. In that case notice was served on the judgment‑debtor under Order XXI, rule 22 of the Code of Civil Procedure but the judgment‑debtor did not raised the question of limitation. The Court thereafter made a positive order directing the execution case to proceed. If such were the facts before us we would have also unhesitatingly reached the same conclusion.
For the reasons stated above, the appeal is allowed without any order as to costs and the judgment and order of dated 13th August 1960 are set aside. The application under section 47 is allowed and the application for execution of the decree is dismissed as barred by limitation.
I agree.
A. E./S. A. II. Appeal allowed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer