Citation Codes

Equivalent Citations

citation codes

Case Number

Suit No. 3367 of 1951

Advocates

P.K. Roy
Pijush Kumar Dutt
for Judgement Debtor
Defendant No. 6

Judges

A.K Sarkar, J.

Acts

Article 182 of Schedule I of the Indian Limitation Act, 1908
execution.11. Article 136 of the new Limitation Act, 1963
Article 136 of the new Limitation Act of 1963.12.
Article 136 of the new Limitation Act, 1963
Article 182 of the Limitation Act of 1908
provision in Order XX, Rule 7 of the CPC
Article 183 of the old Limitation Act,
Order 41, Rule 5(1) of the CPC.14.
Order 20, Rule 7 of the CPC
LIMITATION ACT 1963

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Smart Summary

Executive Summary of the Opinion — Application for Execution of Decree for Costs (Tabular Statement affirmed May 2, 1972)

Factual and Procedural Background

(Based exclusively on the provided opinion.)

This opinion concerns an application, dated May 2, 1972, by defendants Nos. 1, 2 and 3 for execution of a decree for costs against defendant No. 6. The original decree was dated 1 May 1959 and was passed by A.N. Ray, J. The operative portion ordered the plaintiffs and certain defendants to pay costs to the defendants Saha Chowdhury & Co. Private Ltd., Prodyot Kumar Chowdhury and Sm. Satadal Basini Chowdhury, with those costs to be taxed by the Taxing Officer (including taxation of commission as of hearing and fees to two advocates).

The plaintiffs appealed that decree. The appellate court (R.S. Bachawat and C.N. Laik, JJ.) dismissed the appeal on 7 June 1962 and affirmed the trial court's decree of 1 May 1959 except that the order for costs made against the plaintiffs was set aside. The decree for costs against defendants Nos. 5 and 6 remained intact. After taxation by the Taxing Officer the costs were ascertained at Rs. 18,538.56 and an allocatur was issued on 14 August 1963 (a copy being annexed to the Tabular Statement).

The applicants are: defendant No.1 (Saha Chowdhury & Co. Private Ltd.), defendant No.2 (Prodyot Kumar Chowdhury) and Abani Kumar Saha (sole executor to the estate of defendant No.3, Sm. Satadal Basini Chowdhury). The application was supported by an affidavit sworn May 2, 1972.

The judgment-debtor (defendant No.6) opposed execution through counsel Mr. Pijush Kumar Dutt, raising objections including (i) non-representation/notice concerning deceased co-defendants and their heirs, (ii) the application being barred by limitation under the Limitation Act, 1963, and (iii) a contention that the property sought to be sold did not belong to defendant No.6 but was held by him as trustee.

Legal Issues Presented

Whether the absence of representation or service on heirs/legal representatives of deceased co-defendants (who were also potentially liable for the costs) affects the maintainability of the execution petition.
Whether the execution application filed on 2 May 1972 is barred by limitation under the Limitation Act, 1963 (in particular Article 136), having regard to the nature of the decree (costs to be taxed) and the date the decree became enforceable.
Whether an appeal preferred by some parties (the plaintiffs) but not by other judgment-debtors (defendants Nos. 5 and 6) barred or impeded execution against those other judgment-debtors.
Whether the immovable property (Premises No.1, Raja Nabakissen Street, Calcutta-5) sought to be stated and sold in execution proceedings belonged to defendant No.6 or was not subject to execution because defendant No.6 was only a trustee.

Arguments of the Parties

Applicants' (Defendants Nos. 1, 2 & 3) Arguments (as presented in the opinion)

The decree dated 1 May 1959 (as largely affirmed by the appellate court on 7 June 1962) remained effective so far as costs against defendants Nos. 5 and 6 were concerned; the applicants therefore sought execution against defendant No.6 after taxation produced a specific sum (Rs. 18,538.56) and allocatur (dated 14 August 1963).
The applicants produced (via affidavit in reply) a copy of the Deed of Settlement dated 24 July 1953 showing that the settlor directed that the house and premises No.1 be conveyed and transferred absolutely to Shyamapada Chowdhury (defendant No.6) or to his heirs or legal representatives; this supported the position that the property belonged to defendant No.6 and could be subjected to execution.

Judgment-Debtor (Defendant No.6) Arguments

Several defendants (Nos. 3, 4, 5 and 7) had died and the deceased were not represented in the execution application; no notice had been served on heirs/legal representatives of defendant No.5, who was also liable to pay under the decree—thus challenging maintainability.
The execution petition filed on 2 May 1972 was barred by limitation under the Limitation Act, 1963 because the decree was dated 1 May 1959 and more than twelve years had elapsed; the time for obtaining a certified copy of the decree cannot be excluded when computing limitation.
The appeal had been preferred by the plaintiffs only (and not by defendants Nos.5 or 6), but that did not prevent other judgment-debtors from being open to execution; defendant's counsel nevertheless relied on absence of stay and procedural contentions.
The immovable property (Premises No.1) did not belong to defendant No.6 in a personal proprietary sense; by the Deed of Settlement defendant No.6 was merely a trustee and therefore had no personal proprietary interest subject to execution.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Khatu Bai v. Khatija Bai, AIR 1973 Andh Pra 35	Where a decree for costs is joint and several, the decree-holder may execute it against any or all of the judgment-debtors; it is not necessary to implead all judgment-debtors in the execution petition.	The court relied on this authority to reject the objection that deceased, unrepresented co-defendants (and lack of service on heirs of defendant No.5) defeated the maintainability of execution against defendant No.6.
Lala Baijnath Prasad v. Narsingh-das Gujarati, AIR 1958 Cal 1	Under Article 183 of the old Limitation Act (and Original Side practice), a certified copy of a decree was required to apply for execution; the procedural right to enforce accrues only when the decree-holder is in a position to apply for execution.	The court discussed this decision to explain the historical position and the requirement (as to Original Side practice) that a certified copy accompany the execution application; it used the principle to analyze when the decree becomes enforceable for limitation purposes under the new Act.
Maharaja of Darbhanga v. Homeshvar Singh, 48 Ind App 17 : AIR 1921 PC 31	Article 182 of Schedule I of the Limitation Act, 1908 (as then framed) applies only if the decree is in such a form as to render it capable in the circumstances of being enforced.	The court applied this principle (by analogy) to ask whether the decree sought to be enforced was in a form capable of being enforced immediately—a central point in deciding when limitation begins to run under Article 136 of the 1963 Act.
Adusumilli v. Parvataneni, ILR (1955) Mad 498	Held that a decree for payment of costs to be taxed cannot be held to be a contingent decree; limitation for execution runs from the date of the judgment (per Order XX, Rule 7 CPC and Article 182 of the 1908 Act).	The court considered this Madras decision but declined to follow it in the circumstances of the present case because that decision rested on Article 182 of the 1908 Act which did not apply to decrees of Chartered High Courts under the new statutory framework.
Siddeswar Ghosh v. Beharilal Mitter (unreported, dated 10-9-1965)	Expressed the view that a decree for taxed costs does not become enforceable until the amount of costs has been ascertained upon taxation.	The court found the reasoning persuasive and consistent with its view that the decree for costs (to be taxed) was not enforceable until taxation and compliance with directions to the Taxing Officer; it relied on this conclusion to determine when limitation began.

Court's Reasoning and Analysis

The court analysed the objections in a structured way and applied statutory provisions, procedural rules and cited authorities to each point raised by defendant No.6.

1. Representation of deceased co-defendants

The court noted the settled principle that representation of deceased defendants is not imperative after the decree unless execution is sought against their estate. The decree was not against defendants Nos. 3, 4 or 7; further, the applicants were not seeking execution against the estate of defendant No.5. Citing Khatu Bai v. Khatija Bai, the court held that in a joint and several decree the decree-holder may execute against any judgment-debtor without impleading all. On that basis, the court found no merit in the objection based on non-representation or lack of notice to heirs of deceased co-defendants.

2. Limitation under the Limitation Act, 1963

The court examined the limitation objection in light of Article 136 of the Limitation Act, 1963 (which provides twelve years "when the decree or order becomes enforceable"). It reviewed earlier law (Article 183 of the old Act and the decision in Lala Baijnath Prasad) explaining that under Original Side practice a certified copy was required before execution could be sought. The court expressly took the view that, even under Article 136 of the 1963 Act, a decree of the Original Side does not become enforceable until a certified copy has been obtained and annexed to the Tabular Statement in accordance with Original Side rules.

The court then considered whether the decree was otherwise in a form capable of immediate enforcement. Applying the principle from Maharaja of Darbhanga v. Homeshvar Singh, the court asked whether this decree (for costs to be taxed by the Taxing Officer with directions) was enforceable immediately. The court concluded that because the decree required taxation and compliance with directions to the Taxing Officer, the decree insofar as it related to payment of costs was not enforceable until the costs were ascertained on taxation.

The court considered the contrary Madras decision in Adusumilli v. Parvataneni but declined to follow it, noting that the Madras decision rested on Article 182 of the 1908 Act (which did not apply to Chartered High Courts in the same manner). The unreported judgment in Siddeswar Ghosh v. Beharilal Mitter, which held that taxed costs become enforceable only after taxation, was regarded as supportive. Since the costs were taxed on 14 August 1963, the application for execution filed on 2 May 1972 fell within the twelve-year period measured from when the decree became enforceable (post-taxation).

3. Effect of the appeal (and whether appeal stayed execution)

The court acknowledged that an appeal does not ordinarily operate as a stay of execution. However, the court's central question remained whether the decree was in a form capable of being enforced given the taxation requirement. The fact that the plaintiffs had appealed (and the appeal was dismissed except as to costs against plaintiffs) did not prevent execution against defendant No.6 once the decree became enforceable on taxation.

4. Ownership of the property sought to be sold in execution

Defendant No.6 contended that premises No.1 (Raja Nabakissen Street) did not belong to him and that he was only a trustee following a Deed of Settlement dated 24 July 1953. The court observed that no copy of the deed had been annexed to the defendant's affidavit but that a copy was annexed to the applicants' affidavit in reply. That copy showed the settlor appointed the eldest son (Dr. Sailesh Chandra Chowdhury) and the fourth son (Shyamapada Chowdhury — defendant No.6) as joint trustees but also directed transfer "absolutely ... to Shyamapada Chowdhury, the defendant No.6 or to his heirs or legal representatives." The settlor died in 1954. On that basis the court concluded the defendant's contention that he was merely a trustee and had no proprietary interest was incorrect; the property belonged to defendant No.6 and was therefore available for execution.

Holding and Implications

Core Holding: The court held that the contentions of defendant No.6 failed. Specifically, the court concluded that the application for execution of the decree was not barred by the law of limitation and that execution could proceed. The court ordered relief in terms of prayer (1) of column 10 of the Tabular Statement and directed that each party will pay and bear his own costs. The order was certified for counsel and the court recorded "Order accordingly."

Implications

Direct effect on the parties: Execution against defendant No.6 was permitted to proceed (in accordance with the prayer specified in the Tabular Statement). The taxable costs (ascertained to be Rs. 18,538.56 with allocatur dated 14 August 1963) formed the basis for execution.
Procedure on deceased co-defendants: The court reaffirmed that where a decree is joint and several a decree-holder need not implead all judgment-debtors (including deceased ones) to enforce the decree against any particular judgment-debtor, unless execution is sought against the deceased's estate.
Limitation principle applied: For a decree (of the Original Side) that requires taxation and specific directions to the Taxing Officer, the decree (as to those costs) is not enforceable until taxation and compliance with the directions. Measured from that date of enforceability (here, taxation on 14 August 1963), the execution filed on 2 May 1972 fell within the twelve-year period under Article 136 of the Limitation Act, 1963.
No broader/new precedent announced: The opinion applies existing authorities and procedural rules to the facts; it does not purport to lay down a novel or general rule beyond the application of those principles to the specific questions before the court.

This summary is limited strictly to the content provided in the opinion excerpt and does not add or infer information beyond the text.

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Ramnath Das v. Saha Chowdhury And Co. Ltd.

1. This is an application for execution of a decree for costs by and on behalf of the defendants Nos. 1, 2 and 3 against the defendant No. 6. The relevant portion of the said decree dated 1st May, 1959 passed by A.N Ray, J. as his Lordship then was, appear from certified copy annexed to the Tabular Statement affirmed on May 2, 1972 as follows:—

“And it is further ordered and decreed that the plaintiffs and the defendants Sailesh Chowdhury and Shyamapada Chowdhury do pay to the defendants Saha Chowdhury and Co. Private Ltd. Prodyot Kumar Chowdhury and Sm. Satadal Basini Chowdhury their costs of this suit including the reserved costs and costs of Commission (to be taxed by the Taxing Officer of this Court and in taxing such costs the said Taxing Officer do tax the costs of commission as of hearing including fees to two advocates) this Court doth certify that this is a fit case for engaging two advocates.”

2. Mr. P.K Roy, Counsel appearing in support of this application contended that the plaintiffs preferred an appeal from the said decree dated 1st May, 1959. The Appeal Court consisting of his Lordship, R.S Bachawat as he then was and his Lordship C.N Laik dismissed the appeal on June 7, 1962, affirmed the decree of the trial Court dated 1st May, 1959 except the order for costs made therein against the plaintiffs which, was set aside.

3. The decree for costs to be taxed by the Taxing Officer of this Court against the defendants Nos. 5 and 6 remained unaffected and the instant application is for execution of the said decree against the defendant No. 6 after the costs have been taxed by the Taxing Officer of this Court as between party and party and ascertained to be the sum of Rs. 18,538/- and 56 paise and an allocatur dated 14th August, 1963 was issued, a copy whereof has been annexed to the said Tabular Statement.

4. The applicants are the defendant No. 1, Saha Chowdhury and Co. Private Ltd., the defendant No. 2 Prodyot Kumar Chowdhury and Abani Kumar Saha, the sole executor to the estate of defendant No. 3, Sm. Satadal Basini Chowdhury, since deceased. The said defendant No. 2 Prodyot Kumar Chowdhury has filed an affidavit for self and on behalf of the other decree holders affirmed on May 2, 1972 in support of the Tabular Statement also affirmed by him on the same day.

5. Mr. Pijush Kumar Dutt, the learned Counsel appearing on behalf of the judgment-debtor, defendant No. 6 opposed the application on the following grounds:—

6. Firstly, the defendants Nos. 3, 4, 5 and 7 have since died and the deceased defendants are not represented in this application. No notice has been served upon the heirs and legal representatives of the defendant No. 5, who was also liable to pay costs under the said decree.

7. Regarding the above objection, it lis settled that on death after the decree the representation of the deceased defendants is not imperative unless the decree is sought to be executed against their estate. Further, the decree herein is not against any of the defendants Nos. ¾, 7 and is not sought to be executed against the estate of the defendant No. 5. In Khatu Bai v. Khatija Bai, AIR 1973 Andh Pra 35 it is held that, where the decree for costs is joint and several the decree holder can execute it against any or all of the judgment debtors and it is not necessary to implead all the judgment-debtors as respondents to the execution petition.

8. There is therefore no merit in the first objection raised by the learned Counsel opposing this application.

9. Secondly, the maintainability of the execution application is attacked on the ground that the decree sought to be executed was passed on 1st May, 1959. Under the new Limitation Act, 1963, the time for obtaining certified copy of the decree cannot be excluded for computing limitation. The decree sought to be executed on 2nd May, 1972 is clearly barred by the law of limitation being made after 12 years from the said date of the decree.

10. Before the passing of the Limitation Act, 1963 the limitation of time for execution of the decrees of the Chartered High Courts were governed by Article 183 of the old Act. In Lala Baijnath Prasad v. Narsingh-das Gujarati under the said Article 183 of the old Limitation Act, reported in AIR 1958 Cal 1, the Court of Appeal of this Court presided over by Chief Justice Chakravartti and Justice Sarkar as their Lordships then were, was of the view “whatever may be the position is the other Chartered High Courts no application for the execution of decree passed on the Original Side of this Court can be made, unless it is accompanied by a certified copy of the decree. The provision in that regard contained in Rule 10 of Chapter XVII of the Original Side Rules is imperative. The paragraph 12 of the said Report inter alia contains that, the decree-holder acquires a substantive right to the benefits decreed to him as soon as the decree is passed, but the procedural right to exploit the substantive right — which only is the present right to enforce the decree — does not accrue to him till he is in a position to apply for execution.

11. Article 136 of the new Limitation Act, 1963 which governs the present application provides time for the execution of any decree or order of any Civil Court being twelve years “when the decree or order becomes enforceable” etc. In the instant application, no ground has been made out for exclusion of the time for obtaining the certified copy of the decree, though I am of the view that the decree of the Original Side of this Court does not become enforceable until a certified copy of the decree has been obtained annexed to the Tabular Statement under the Rules of the Original Side of this Court even under Article 136 of the new Limitation Act of 1963.

12. The objection as to maintainability of the present application for execution of the decree on the ground of limitation has been made on other reasons also.

13. The learned counsel for the defendant No. 6, the judgment debtor herein, urged before me that the appeal preferred by the plaintiffs only and not by either defendant No. 5 or No. 6 from the said decree dated 1st May, 1959 was no bar on the part of the defendants Nos. 1, 2 and 3 to proceed to execute the said decree nor there was any legal impediment to seek to execute the decree either against the defendant No. 5 or against the defendant No. 6. There was in any event no stay of the operation of the said decree under Order 41, Rule 5(1) of the CPC.

14. It is true that an appeal shall not operate as a stay of proceedings under a decree or order appealed from nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree, but the point for consideration in the instant application is, was the decree sought to be enforced in such a form as to render it capable in the circumstances of being enforced? The Judicial Committee in Maharaja of Darbhanga v. Homeshvar Singh a case under Article 182 of Schedule I of the Indian Limitation Act, 1908 reported in 48 Ind App 17 : (AIR 1921 PC 31) held that the said Article applied only if the decree is in such a form as to render it capable in the circumstances of being enforced. Now the question before me is whether the decree sought to be executed herein is in such of form capable of being enforced immediately.

15. It is true that normally the date of the decree under Order 20, Rule 7 of the CPC shall be the day on which the judgment is pronounced but Article 136 of the new Limitation Act, 1963 provides that the time for execution of any decree is twelve years “when the decree becomes enforceable.” In this case the decree is for payment of costs to be taxed by the Taxing Officer of this Court and certain directions were also given to the said Taxing Officer in the decree itself.

16. In my view therefore, the decree so far as it related to the payment of costs to the applicants was not enforceable until the amount of costs were ascertained upon taxation and the directions contained therein to the Taxing Officer were complied with.

17. Reliance was placed on a judgment of the Madras High Court in Adusumilli v. Parvataneni, ILR (1955) Mad 498 where it was held that a decree for payment of costs, to be taxed, cannot be held to be a contingent decree. Having regard to the provision in Order XX, Rule 7 of the CPC that the decree shall bear date the day on which the judgment was pronounced, limitation for execution of the decree runs from the date of the judgment and not from a latter date when the decree is actually prepared and signed. The decision of the Madras High Court was based on Article 182 of the Limitation Act of 1908 which did not apply to decrees of Chartered High Court. I am not inclined to follow the said decision in the facts and circumstances of the instant case.

18. An unreported judgment of Sankar Prasad Mitra, J. as his Lordship then was dated 10-9-1965 in Siddeswar Ghosh v. Beharilal Mitter was produced before me. From a close study of the said judgment it appears to me that His Lordship after discussing the decisions in various cases was of the view that a decree for taxed costs does not become enforceable until the amount of costs have been ascertained upon taxation. The costs awarded to the applicants were taxed on 14th August, 1963.

19. The next point taken by and on behalf of the defendant No. 6 is that the premises No. 1, Raja Nabakissen Street, Calcutta-5, in respect of which the statement and sale has been asked in this application for execution does not belong to the said defendant No. 6. By a deed of Settlement dated 24th July, 1953, one Debendra Nath Chowdhury deceased, the father of defendant No. 6 settled inter alia the said premises in trust for the benefit of the said defendant No. 6 and his heirs or legal representatives.

20. The defendant No. 6 became a trustee upon the death of the settlor with his elder brother Dr. Sailesh Chandra Chowdhury deceased, the defendant No. 5 herein. It is contended that by reason of the premises, the defendant No. 6 being only a trustee has no personal and proprietary interest in the said premises.

21. No copy of the Deed of Settle ment however, was produced nor annexed to the affidavit of the deponent. A copy of the Deed of Settlement was however annexed to the affidavit in reply filed on behalf of the applicants. It appears from the said copy of the Deed of Settlement that the settlor appointed his eldest son, said Dr. Sailesh Chandra Chowdhury and his fourth son Shree Shyamapada Chowdhury the defendant No. 6 herein to be the joint trustees after his demise to hold the trust properties inter alia the said premises No. 1, Raja Nabakissen Street, Calcutta-5, upon trust to convey and transfer absolutely amongst others the house and premises No. 1, Raja Nabakissen Street, Calcutta to Shyamapada Chowdhury, the defendant No. 6 or to his heirs or legal representatives. The settlor died in 1954.

22. Therefore in my view the contention of the defendant No. 6 that he is merely a trustee is incorrect and not true. The said property belongs to the defendant No. 6.

23. In the result the contentions on behalf of the defendant No. 6, the judgment debtor herein fail. The application for execution of the decree is not barred by Law of Limitation and there will be an order in terms of prayer (1) of column 10 of the Tabular Statement. Each party will pay and bear his own costs. Certified for counsel.

24. Order accordingly.

Ramnath Das v. Saha Chowdhury And Co. Ltd.

Executive Summary of the Opinion — Application for Execution of Decree for Costs (Tabular Statement affirmed May 2, 1972)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicants' (Defendants Nos. 1, 2 & 3) Arguments (as presented in the opinion)

Judgment-Debtor (Defendant No.6) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

1. Representation of deceased co-defendants

2. Limitation under the Limitation Act, 1963

3. Effect of the appeal (and whether appeal stayed execution)

4. Ownership of the property sought to be sold in execution

Holding and Implications

Implications

Ramnath Das v. Saha Chowdhury And Co. Ltd.

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