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Amarendra Lal Khan v. Mahindranath Roy And Ors.
Structured Summary of the Judicial Opinion (S.R. Das Gupta, J.)
Factual and Procedural Background
On 17 April 1935 the appellant obtained a rent-decree for Rs. 5,727-15-0. The judgment-debtors applied to the Debt Settlement Board but their petition was dismissed for non-prosecution. On 1 November 1941 the appellant filed a petition for execution of the decree seeking attachment and sale of the judgment-debtors' movables.
The judgment-debtors filed three objections under section 47 of the Code of Civil Procedure. Their principal contention relied on section 168A of the Bengal Tenancy Act: that only the tenure could be sold in execution of a rent decree and, since the tenure had already been sold and purchased by the decree-holder, no other property (movable or immovable) was liable to be sold in execution.
The trial court upheld the objection and stayed execution. The District Judge (lower appellate court) reversed that decision. Three appeals followed to the High Court. Meanwhile, the trial court stayed execution from 17 November 1942 to 17 July 1949. The High Court on 18 July 1949 remitted the matter to the trial court for rehearing.
On 27 July 1949 the decree-holder applied to amend the original execution petition substituting immovables in place of movables; the trial court allowed the amendment. The judgment-debtors challenged the amendment by objections under section 47 (filed 22 September 1951), asserting (a) the amendment order of 27 July 1949 was obtained without notice to them, (b) the amendment was not competent except under Order 21 rules 11–14 CPC, and (c) the amended application constituted a fresh application presented after 12 years from the decree and thus was barred by section 43 of the Code of Civil Procedure (and section 48 was relied on by the lower court in dismissing the 27 July 1949 application). The trial judge dismissed the appellant's amended application for execution dated 27 July 1949 on limitation grounds. The appellant appealed to the High Court against that dismissal.
Legal Issues Presented
- Whether section 15 of the Indian Limitation Act applies to section 48 of the Code of Civil Procedure — i.e., whether the period during which execution of the decree was stayed must be excluded in computing the 12-year period under section 48/section 43 for fresh applications to execute a decree.
- Whether the 27 July 1949 amended application for execution (substituting immovables for movables) was a fresh application barred by the 12-year limitation period.
- Whether the stay previously ordered by the trial court operated only in respect of execution by sale of movables (leaving open execution by sale of immovables) or whether the stay covered execution by sale generally so as to attract exclusion under section 15 of the Limitation Act.
Arguments of the Parties
Appellant's Arguments (as summarized by the Court)
- The 27 July 1949 application (even if treated as a fresh application) was saved by section 15 of the Indian Limitation Act because the period during which execution was stayed (17 November 1942 to 17 July 1949, and a later stay 8 September 1949 to 9 January 1951 is described in the narrative) should be excluded when computing limitation.
- Once the stay period is excluded, the amended application dated 27 July 1949 was within time and therefore not barred by limitation.
Respondents' / Judgment-Debtors' Arguments (Mr. Jana)
- Section 15 of the Indian Limitation Act does not govern section 48 of the Code of Civil Procedure: the words “the period of limitation prescribed” in sections following section 3 of the Limitation Act refer only to periods prescribed by the First Schedule of the Limitation Act (relying on the language of section 3).
- Alternatively, if section 15 were applicable generally, it should not apply where only certain modes of execution were stayed: here the original execution application sought sale of movables only, so the stay operated only against sale of movables and not against execution by sale of immovables; therefore exclusion under section 15 would not protect a later application seeking sale of immovables.
- Reference was made to section 29 of the Limitation Act to argue that provisions like section 15 might not apply where a special or local law prescribes the limitation period (submission being that section 48 CPC might be a special/local law vis-à-vis the Limitation Act).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Minor Subbarayan, by guardian Visalakshi Achi v. Minor Natarajan, by guardian Gouri Achi (I.L.R. 45 Mad. 785) | Madras High Court originally took the view that section 15 of the Limitation Act does not govern section 48 CPC. | The Court records this earlier Madras decision as part of the historical conflict of authority but treats it as overruled by a later Full Bench decision of the Madras High Court. |
| Kandaswami Pillai v. Knnappa Chetty alias Arunachala Chetty [I.L.R. 1952 Mad. 421; A.I.R. 1952 Mad. 186] (Full Bench) | Held that section 15 of the Indian Limitation Act is applicable to section 48 CPC; period of stay must be excluded when computing limitation under section 48. | The Court agrees with and adopts the Full Bench view as correct authority for holding that section 15 governs section 48 CPC. |
| Koer Durga Pal Singh v. Th. Pancham Singh (A.I.R. 1939 All. 403) (Full Bench) | Allahabad Full Bench held likewise that section 15 applies to section 48 CPC. | The Court cites this Full Bench as supporting its conclusion and accepts its reasoning as part of the persuasive authority favoring applicability of section 15. |
| Decisions of the Bombay High Court (referred to collectively) | Bombay High Court has consistently taken the view that section 15 applies to section 48 CPC. | The Court notes consistency in Bombay authorities and treats them as supporting the conclusion that section 15 governs section 48. |
| Makhan Lal Saha … v. Firm Madan Mohan Ashutosh Saha … (50 C.W.N. 12) | The observations suggesting a view on the point were obiter and given without substantial reasoning. | The Court finds little assistance from this decision because the relevant observations were obiter dicta and inadequately reasoned. |
| Promode Kumar Roy v. Hirendra Nath Mukherjee (A.I.R. 1952 Cal. 232) | Held that section 48 CPC lays down a period of limitation and that special provisions (example given: section 52 of the Bengal Agricultural Debtors Act) can govern section 48; implication that section 48 should be subject to saving clauses in the Limitation Act. | The Court treats this decision as not directly deciding applicability of section 15 to section 48 but as indicating that a statutory limitation period is susceptible to Limitation Act savings; used as supportive but not controlling authority. |
Court's Reasoning and Analysis
The Court framed the principal question narrowly: whether section 15 of the Indian Limitation Act governs section 48 of the Code of Civil Procedure so that periods during which execution of a decree is stayed are to be excluded in computing the 12-year limitation under section 48/section 43.
The Court surveyed conflicting High Court decisions. It noted:
- An earlier Madras decision rejected applicability of section 15, but a later Full Bench of the Madras High Court (Kandaswami Pillai) overruled that view and held section 15 applicable to section 48.
- The Allahabad Full Bench and the Bombay High Court similarly took the view that section 15 governs section 48.
- Other authorities (e.g., Makhan Lal Saha) offered only obiter remarks and were of limited assistance. Promode Kumar Roy indicated that section 48 lays down a limitation period and hence should be subject to Limitation Act savings, but it was not a direct authority on the specific s.15 question.
The Court rejected the respondents' textual argument that the phrase “the period of limitation prescribed” in other sections of the Limitation Act must be read as referring only to periods prescribed by the First Schedule (as used in section 3). The Court explained that construing every subsequent reference to limitation in the Limitation Act as limited to the First Schedule would produce absurd consequences — for example, it would prevent other generally applicable saving provisions of the Limitation Act (such as section 4) from applying to limitation periods set by other laws (like section 48 CPC).
The Court also considered the submission based on section 29 of the Limitation Act (that if a special or local law prescribes a different period the Limitation Act's provisions apply only insofar as not expressly excluded). The Court found that even if section 48 CPC is treated as a special law, there is nothing in section 48 expressly excluding operation of section 15 of the Limitation Act. Therefore section 29 does not prevent application of section 15 to section 48.
The Court concluded that where statutory language is simply “the period of limitation prescribed” it can refer to a period prescribed either in the Limitation Act or in any other law. Consequently, the Court held that section 15 of the Limitation Act governs section 48 CPC and a period of judicial stay must be excluded in computing the 12-year limitation.
The Court then addressed whether the stay that was ordered covered only execution by sale of movables (so that subsequent execution by sale of immovables would not have been stayed). The Court examined the context: the original execution application invoked section 168A of the Bengal Tenancy Act which prohibits execution by sale of any property other than the tenure. The judgment-debtors’ objection contended that since the tenure had been sold, no other property (movables or immovables) could be sold in execution. The trial judge's order used the broad term “execution is stayed.”
Having regard to the petition of objection, the statutory provision (section 168A), and the language of the stay, the Court held that the stay was a stay of execution by sale (i.e., sale in execution generally) and therefore included the mode of execution later sought (sale of immovables). The Court accepted that personal execution was not stayed but concluded that the current application was for execution by sale of immovables and was covered by the stay. Thus the stay period was properly excluded under section 15.
Holding and Implications
Core Holding: The appeal is allowed; the order of the learned trial Judge is set aside and the appellant's application for execution is not barred by limitation because section 15 of the Indian Limitation Act governs section 48 of the Code of Civil Procedure and the period of stay is excluded when computing limitation.
Consequences explicitly stated in the opinion:
- The trial judge's order dismissing the 27 July 1949 application for execution on limitation grounds is set aside.
- The appellant's application for execution is held not to be barred by limitation.
- The appellant is entitled to the costs of the appeal; the hearing fee was assessed at three gold mohurs.
Broader legal implication as established by the Court's ruling: section 15 of the Indian Limitation Act applies to limitation periods prescribed by section 48 CPC so that periods during which execution is stayed are to be excluded in computing the 12‑year limitation for fresh execution applications. The Court expressly adopted the view of Full Benches (Madras and Allahabad) and aligned with decisions cited from Bombay; it rejected contrary textual arguments based on section 3 or section 29 of the Limitation Act.
The opinion does not purport to lay down further novel doctrinal rules beyond applying section 15 to section 48 and determining that the particular stay in this case covered execution by sale (including immovables) so as to attract the exclusion.
Prepared strictly from the text of the provided opinion. No information has been added beyond what is contained in that opinion.
S.R Das Gupta, J.:— This is an appeal by the decree-holder against an order passed by the Subordinate Judge, Midnapore, on an application under section 47 of the Code of Civil Procedure dismissing an application for execution for the balance of rent decree.
2. The matter arises in this way: On the 17th April, 1935, the appellant obtained a decree in a rent suit for the sum of Rs. 5727-15-0.
3. Thereafter the debtors went to the Debt Settlement Board, but ultimately their application was dismissed for non-prosecution by the Debt Settlement Board. Then on the 1st November, 1941, a petition for execution of the decree was filed by the appellant. In the application which was made the assistance of the court was sought by attachment and sale of the moveables belonging to the judgment-debtors. Three objections, were filed by the judgment-debtors under section 47 of the Code of Civil Procedure in the said execution case and as a result thereof three miscellaneous cases were started. The main ground of objection takes fey the judgment-debtors was based on section 168A of the Bengal Tenancy Act; in other words, it was contended that in view of the provisions of section 168A(1)(a) of the Bengal Tenancy Act no sale of the moveables sought to be attached can be effected in execution of the said decree. It would be necessary at this stage to refer to the contents of the said application for execution. In the said application it was stated that as the decree-holder had caused the tenure to be sold and had purchased it, the other properties of the judgment-debtors cannot be held liable for the payment of the balance of the decree. In substance what was contended was that in view of the provisions of section 168A of the Bengal Tenancy Act only the tenure could be sold in execution of the rent decree and the said tenure having already been sold the decree could not be executed by sale of any other property of the judgment-debtors. The said objection under section 47 of the Code of Civil Procedure was upheld by the trial court. Against that decision an appeal was taken to the court of the District Judge. The lower appellate court reversed the said decision. Thereupon three appeals were preferred to the High Court against the said decisions. I should have mentioned that the lower court on the 19th November, 1942, on being apprised of the fact that appeal have been preferred to the High Court passed the following orders: “The execution of the decree be stayed until further orders.” The stay remained in operation from the 17th November 1942, to the 17th July, 1949. By an order of the High Court dated the 18th July, 1949, the matter was sent back to the trial court for re-hearing. Thereafter on the 27th July, 1949, the decree-holder filed a petition for amendment of the original application for execution. In the said petition the amendment sought for was substitution of the immoveables in the place of the movables which were in the original petition. An order was made on the said application allowing the amendment. The judgment-debtors thereupon, it appears, applied for stay and we are told that the execution of the decree remained stayed from the 8th September, 1949, to the 9th January, 1951, and on the 9th January, 1951, the stay was vacated. On the 26th August, 1951, in execution of the said decree an attachment was effected on the immovable properties mentioned in the amended application for execution. Thereafter on the 22nd September, 1951, the present objections were filed under section 47 of the Code of Civil Procedure. In the said application under section 47 of the Code it was stated that the order complained of, that is to say, the order of amendment made on the 27th July, 1949, had been passed without giving an opportunity to the applicant judgment-debtors to put forward their objections. It was also contended that apart from the amendment of petition for execution under Order 21, rules 11, 12, 13 and 14 of the Code of Civil Procedure any other mode of amendment was not legal. In the circumstances the objectors prayed inter alia for an order for reconsidering or recalling the order on a declaration that the application of the decree-holder dated the 27th July, 1949, is barred by limitation and that it may be declared that such amendment of the petition for execution is illegal, ultra vires and the order dated the 27th July, 1949, may be vacated. In other words, in the said application the judgment-debtors sought to have the said order vacated on the ground that it was obtained without any notice to them and they also contended that the application for execution, which was started after the expiration of 12 years from the date of the decree, was barred by limitation. In support of the objection as to limitation reliance was placed on section 43 of the Code, of Civil Procedure which provides: “Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from—
(a) the date of the decree sought to be executed” The other portions of the said section are not necessary to be considered in the present appeal. What was contended before the lower Court was that the application for amendment dated the 27th July, 1949, was really a fresh application and the same was made after the period of 12 years from the date of the decree and therefore, under section 48 of the Code of Civil Procedure that application was barred. The learned Judge upheld that contention and the said application for execution, dated the 27th July, 1949, was dismissed It is against that order that the present appeal has been preferred to this Court.
4. The learned Advocate for the appellant raised various contentions before us, but in our opinion this appeal can be disposed of only on One of them the learned Advocate for the appellant contended that the application for execution even if it be assumed that the application for amendment was really a fresh application, was saved from the bar of limitation, because of the provisions of section 15 of the Indian Limitation Act; in other words, he contended that the period during which the execution remained stayed, that is to say, from the 17th November, 1942, to the 17th July, 1949, has to be excluded in computing the period of limitation for the execution of the said decree. If that is done, then, according to him, it is clear that the application, dated the 27th July, 1949, even if it be a fresh application for execution was not barred by limitation. In order to determine this question it would be necessary for us to refer to the provisions of section 15 of the Indian Limitation Act and consider the appeal thereof. The material portion of the said section reads as follows:
15. (1) “In computing the period of limitation prescribed for any suit or application for the execution of a decree the institution or execution of which has been stayed by injunction or order the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.”
5. The question which arises for our determination is whether or not section 15 of the Indian Limitation Act governs section 48 of the Code of Civil Procedure; in other words, the question is whether the provisions of section 15 of the Indian Limitation Act are limited only to the First Schedule of the Indian Limitation Act and not to the provisions of any other law by which any period of limitation may have been prescribed for any particular matter. This question is not free from difficulty and there have been conflicting decisions of various High Courts on this point. Originally, the Madras High Court took the view that section 15 of the Indian Limitation Act does not govern section 48 of the Code of Civil Procedure: [Minor Subbarayan, by: guardian Visalakshi Achi v. Minor, Natarajan, by guardian Gouri Achi, (1) (I.L.R 45 Mad. 785)]. The said view was overruled by a Full Bench of the same High Court in the case of Kandaswami Pillai v. Knnappa Chetty alias Arunachala Chetty (2) [I.L.R 1952 Mad. 421 : A.I.R 1952 Mad. 186], where it was held that section 15 of the Indian Limitation Act is applicable to section 48 of the Code of Civil Procedure, in other words, if the execution of the decree has been stayed for a particular period, then that period is to be excluded in determining whether or not an application is barred under section 48 of the Code of Civil Procedure. The same view has also been taken in a Full Bench decision of the; Allahabad High Court in the case of Koer Durga Pal Singh v. Th. Pancham Singh (3) (reported in A.I.R 1939 All. 403). It also appears that the Bombay High Court has also consistently taken the same view. There is no direct decision on this point by this Court except the case of Makhan Lal Saha…Judgment-Debtor, v. Firm Madan Mohan Ashutosh Saha…Decree-Holders, * (4) (reported in 50 C.W.N 12). With regard to the last decision it may be noted that the observations of Mr. Justice Henderson, who decided the said case, on this point were in the nature of obiter dicta and there is hardly any reason given for the said view. In our opinion not much assistance can be had from the said observations. It appears however, that in the case of Promode Kumar Roy v. Hirendra Nath Mukherjee (5) (reported in A.I.R 1952 Cal. 232), Mr. Justice Chakravartti as he then was sitting with Chief Justice Harries, has taken the view that section 48 of the Code of Civil Procedure really provides a period of limitation within which a fresh application for execution can be made and his Lordship held that the provisions of section 52 of the Bengal Agricultural Debtors Act govern the provisions of section 48 of the Code of Civil Procedure. It must be noted that the said decision is no direct authority on the question which we have to determine now, namely, the applicability of section 15 of the Indian Limitation Act to section 48 of the Code of Civil Procedure. The said decision helps us only to this extent, namely, that it establishes that section 48 of the Code of Civil Procedure lays down a period of limitation and if it lays down a period of limitation there it follows that it should be subject to all the saving clauses provided for in the Indian Limitation Act. But, as I have indicated, it is no direct authority on the question which is now agitated before us. We are, however, of the opinion that the view taken by the Full Bench of the Madras High Court and the Full Bench of the Allahabad High Court and the Bombay decision is correct, and we entirely agree with the view taken in those decisions.
6. Mr. Jana appearing on behalf of the respondents contended that the words “the period of limitation prescribed for any suit or application” really refer to the period of limitation prescribed by the First Schedule of the Indian Limitation Act. In support of that proposition he drew our attention to section 3 of the Indian Limitation Act wherein it is provided as follows:— “every suit instituted, appeal preferred, and application made after the period of limitation prescribed therefor by the first Schedule shall be dismissed, although limitation has not been set up as a defence”. Mr. Jana contended that the words used in the said section, are “the period of limitation prescribe ed therefor by the first schedule”, and if, in subsequent sections, which follow section 3, the words used are “the period of limitation prescribed”, the same must mean “the period of limitation prescribed therefor by the first Schedule” as stated in section 3. We are unable to accept this contention. Mr. Jana has also referred us to section 29 of the Indian Limitation Act which inter alia lays down as follows:
“Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law—
(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as and to the extent to which, they are not expressly excluded by such special or local law. He contended that in view of the said section the provisions of section 15 of the Indian Limitation Act would not apply to any special or local law which may be in force. We do not see how Mr. Jana can at all maintain that position in the first place, section 29 refers to special or local law and in the second place, it states that the provisions of sections 9 to 18 shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law. Even if we assume that section 48 of the Code of Civil Procedure is a special or a local law, even then there is nothing in the said section which expressly excludes the operation of section 15 of the Indian Limitation Act. Therefore, the position is that either it is not a special or a local law in which case section 29 is not at all applicable, or if it is a special or a local law, then there is nothing in the said section which expressly excludes the operation of section 15 of the Indian Limitation Act. We are entirely unable to accept the contention of Mr. Jana on this point.
7. It seems to us to be clear that where the words used are simply “the period of limitation prescribed” without stating “precsribed in the first schedule of the Limitation Act” they refer to any period of limitation prescribed either in the Limitation Act or in any other law. I have already indicated that we are unable to accept the view that because it is stated in sec. 3 of the Indian Limitation Act—the expression used in that section being “any period of limitation prescribed therefor in the first schedule” it should be held that in all subsequent sections wherever the words are “the period of limitation prescribed”, they mean the period of limitation prescribed in the first schedule. Such a conclusion would lead to absurd results. For in-stance, if that construction is to be applied to section 4 of the Limitation Act which provides that “where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens”, the result will be that if the last day for an application under section 48 of the Code of Civil Procedure happens to expire on a day when the Court is closed, that application cannot be moved on the day when the Court re-opens because section 4 of the Limitation Act would not on that construction apply to section 48 of the Code of Civil Procedure. That in our opinion would lead to absurdity. In the result, therefore, we hold that section 15 of the Indian Limitation Act governs section 48 of the Code of Civil Procedure. If that is so, then irrespective of the question as to whether or not the application which was made on the 27th July, 1949, was a fresh application, the same would not be barred by limitation.
8. Mr. Jana also contended before us, and there is some force in that contention, that section 15 of the Limitation Act would be applicable if the whole decree had been stayed by an injunction or order, but if only certain modes of execution have been stayed and the decree can be executed by other means, then section 15 of the Limitation Act would not apply to section 48 of the Code of Civil Procedure. In other words, Mr. Jana contended that in the original application for execution the decree-holder claimed the assistance of the Court by sale of the moveables and that was the only prayer in the said application for execution. When the decree was stayed what was meant was that the decree was stayed so far as that application was concerned; in other words, the execution of the decree by sale of the moveables only was stayed, but that did not prevent the decree-holder from otherwise executing the decree and the decree-holder could still proceed with an application for execution of the decree by sale of the immoveable properties belonging to the judgment-debtors. If then the decree-holder has now made an application for execution by sale of the immovable properties of the judgment-debtors after a period of twelve years from the date after decree that application would not be protected by section 15 of the Limitation Act, because, the whole decree was not stayed and what was stayed was only the execution of the decree by sale of the moveables. In order to determine this contention of Mr. Jana it would be necessary to see what was stayed by the order of the Court and in order to determine that we shall have to refer to the original application for execution, the objections which were filed by the judgment-debtors in relation thereto and the order which has been passed by the Judge thereon As I have already indicated the application for execution, as it originally stood, was based on section 168A of the Bengal Tenancy Act. That section prohibits execution by sale of any other property except the tenure; in other words that section is a bar to the sale in execution not only of the movables, but also of the immovables other than the tenure It is true that in the original application the assistance of the Court was sought by sale of the movables only, but we find from the objection filed by the judgment-debtors to the said application for execution that what the judgment-debtors contended therein was that in view of the fact that the tenure had already been sold in auction at the instance of the decree-holder, no other property of the judgment-debtors can be sold in execution of the decree; in other words, the plea taken was that the execution of the decree cannot proceed with respect to any other property of the judgment-debtors including movables and immovables. It is upon that objection that the order was made by the learned Judge and the execution was stayed As I have said the words used by the learned Judge are very wide and all that he has said is “execution is stayed”. The question is what was the real implication of that order? In our opinion having regard to the circumstances of the case, the petition of objection and the provisions of section 168A of the Bengal Tenancy Act what was stayed was the execution of the decree by sale. We agree with Mr. Jana that the personal execution against the judgment-debtors was not stayed, but the present application which is the subject-matter of the appeal was not an application for personal execution, but application for execution by sale of the immovable properties. In our opinion such execution is covered by the order for stay made by the learned Judge. In the premises, we hold that this contention of Mr. Jana must fail.
9. In the result, therefore, this appeal should be allowed and we made an order accordingly. The order of the learned Judge is set aside and we hold that the appellant's application for execution is not barred by limitation.
10. The appellant is entitled to costs of this appeal, the hearing fee being assessed at three gold mohurs.
Mallick, J.:— I agree.
S.K.B
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