- Bookmark
- Share
- CaseIQ
Krishna Chandra Sahani Judgment-Debtor v. Anem Peda Siva Paravatamma Decree-Holder, .
Factual and Procedural Background
This appeal arises from an execution proceeding. The appellant is judgment-debtor No. 6 (Krisna Chandra Sahani). The executing court (Sri R.C. Misra, Subordinate Judge of Berhampur) rejected the appellant's petition under Section 47 of the Code of Civil Procedure (CPC), which raised a limitation objection. The decree under execution is a mortgage decree: a preliminary decree dated 7-1-32 and a final decree dated 2-11-32. The execution petition was filed on 11-9-45, which is beyond twelve years from the date of the final decree.
The original decree-holder was Anem Tatayya. Two sons of the original decree-holder were Anem Basanna and Anem Narasimhulu. Anem Narasimhulu was alive and had transferred his share in the decree to judgment-debtor No. 6. Anem Basanna had died, and his widow, Anem Peda Siva Paravatamma, filed the present execution petition. Judgment-debtors 1 to 5 had sold their interests and proceeds were applied to the decree. Judgment-debtors 6 and 7 were subsequent purchasers of some mortgage properties; judgment-debtor No. 7 is dead and his two sons are judgment-debtors 8 and 9.
Procedurally, Anem Basanna (through the widow) filed Execution Petition No. 54/35 for sale of properties in the possession of judgment-debtors 6 and 7. Judgment-debtor No. 7 objected; objections were overruled and he appealed (A.S. No. 7/47), obtaining an interim stay on 21-4-36 which was made final on 18-9-36. The executing court then recorded on 16-10-36: “Stay made absolute. Petition closed” (reflecting local practice under the Madras High Court rules). The appellate stay remained effective until the appeal was dismissed on 8-3-39. The execution petition at issue was filed on 11-9-45.
Legal Issues Presented
- Whether Section 48 of the CPC (which prescribes a 12-year bar for applications to execute a decree) is controlled by Section 15 of the Limitation Act such that periods during which execution was stayed by appellate order are excluded in computing the 12-year period.
- Whether the period during which the execution case was recorded as “closed” by the executing court (after the appellate stay was made absolute and for statistical purposes under Madras rules) renders the appellate stay infructuous and therefore not excludable from the limitation period.
- Whether the execution petition was vitiated for non-joinder or non-representation of the joint decree-holder (Anem Narasimhulu) such that the execution should be dismissed.
- Whether, alternatively, the decree-holder was entitled to an extension under Section 48(2)(a) of the CPC on the ground that the judgment-debtor prevented execution by fraud or force.
Arguments of the Parties
Arguments of the Decree-holder (as advanced by her counsel)
- Section 15 of the Limitation Act applies to computation of the limitation period and excludes from computation the period during which the institution or execution of a decree has been stayed by injunction or order; therefore the period covered by the appellate stay (21-4-36 to 8-3-39) must be excluded and the execution petition (filed 11-9-45) is within time.
- As an alternative, reliance was placed on Section 48(2)(a) of the CPC that allows execution after twelve years where the judgment-debtor has by fraud or force prevented execution within the twelve years immediately before the application.
Arguments of the Appellant (Mr. H. Mohapatra)
- Section 48 of the CPC is a self-contained provision and is not controlled by Section 15 of the Limitation Act; therefore Section 15 should not be used to exclude any period from the 12-year bar in Section 48.
- The execution case had been “struck off” (in the appellant's submission) on 16-10-36 (the record shows “petition closed”), and so, as there was no execution pending after that date, the appellate stay would be infructuous beyond 16-10-36 and ought not to be excluded when computing the limitation period.
- On the issue of parties, Narasimhulu and Anem Basanna were joint at the time of the latter's death, so Narasimhulu was (or remained) a decree-holder; because it was not shown that execution was also on behalf of Narasimhulu, the execution petition should be dismissed for non-compliance.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Subbarayan v. Natarajan, AIR 1922 Mad 268 | Held that Section 48 of the CPC contains an unqualified prohibition and is not controlled by Section 15 of the Limitation Act. | The court reviewed this decision and recorded its reasoning, but ultimately did not follow it; the court found other authorities and considerations persuasive that Section 48 is controlled by Section 15. |
| Durga pal Singh v. Pancham Singh, AIR 1939 All 403 (Full Bench) | Full Bench decision holding that Section 48 of the CPC is controlled by Section 15 of the Limitation Act (i.e., periods of appellate stay are excludable). | The court considered this reasoning “very sound and substantial” and expressly followed the Full Bench decision as controlling. |
| Ramgogal Bliutada Firm v. Sidram Aunayya, AIR 1943 Bom 164 | Applied the same principle that Section 48 is to be read in conjunction with Section 15 of the Limitation Act. | The court cited this decision as following the Full Bench principle; it reinforced the court's conclusion to apply Section 15 in computing the 12-year period. |
| Sitaram v. Chunnilalsa Bhagchandsa, AIR 1944 Nag 155 (ILR 1944 Nag. 250) | Recognized and applied the principle that Section 48 is controlled by Section 15 of the Limitation Act. | Referenced as another decision following the same principle and supporting the court's conclusion. |
| Kirtyananda Singh v. Prithichand Lal, AIR 1929 Pat. 597 | Contained an observation suggesting that Section 48 is not controlled by Section 15 (but this was an obiter observation in that case). | The court treated this observation as obiter and not binding precedent and therefore did not rely upon it. |
Court's Reasoning and Analysis
The court examined the textual provisions of Section 48 of the CPC and Section 15 of the Limitation Act and considered relevant authorities. It noted that Section 48 prescribes a twelve-year bar for making a fresh application to execute a decree and contains its own exceptions (including subsection 2). The central question was whether Section 15 (which excludes from computation periods during which institution or execution of a decree has been stayed by injunction or order) applies to Section 48.
The court analyzed previous case law. It reviewed Subbarayan v. Natarajan (which held Section 48 not controlled by Section 15) but found more persuasive the Full Bench decision in Durga pal Singh v. Pancham Singh, which held that Section 48 is controlled by Section 15. The court also cited subsequent decisions (Ramgogal Bliutada Firm; Sitaram v. Chunnilalsa Bhagchandsa) that followed the Full Bench principle. The court further examined Articles 181 and 182 of the Schedule to the Limitation Act as indicating that Section 48 is a period contemplated by Section 15. It treated the contrary observation in Kirtyananda (Patna) as obiter and not binding.
On the factual point regarding the execution record entry “petition closed” dated 16-10-36, the court inspected the execution record and the governing practice (Civil Rules of Practice and Circular Orders of the Madras High Court applicable to Berhampur Courts then). The court concluded that the executing court's entry that the petition was “closed” was an administrative/statistical step required by local practice after an appellate court made a stay absolute, rather than a judicial order striking off the execution for default by the decree-holder. Therefore the appellate stay continued in effect for the purposes of exclusion under Section 15 until final disposal of the appeal on 8-3-39.
The court further held that an appellate stay under the circumstances amounted to a stay of execution as contemplated by Order XLI, Rule 5 of the CPC and not merely a stay of a particular execution proceeding: the decree-holder could have proceeded with execution in that or any other execution case but was prevented by the appellate stay.
On the joinder point, the court found that Narasimhulu's name did appear among the decree-holders in the execution petition and that he did not object at any stage; the execution was therefore substantially in compliance with Order XXI, Rule 15 of the CPC.
Finally, because the court found the decree-holder entitled to the exclusion of the appellate stay period under Section 15, it did not decide the alternate contention under Section 48(2)(a) (fraud or force preventing execution).
Holding and Implications
Holding: The judgment of the Subordinate Judge (rejecting the appellant's petition under Section 47 CPC on limitation grounds) is confirmed and the appeal is dismissed with costs.
Implications:
- The court held that Section 48 of the CPC is to be read in conjunction with Section 15 of the Limitation Act; consequently the period during which execution was stayed by the appellate court (from 21-4-36 to 8-3-39) is excludable when computing the twelve-year limitation under Section 48. On that basis the execution petition was held to be within time.
- The executing court's administrative entry “petition closed” (16-10-36) pursuant to Madras High Court practice did not render the appellate stay infructuous; the appellate stay was treated as a stay of execution for computation purposes.
- The execution petition complied substantially with Order XXI, Rule 15 because Narasimhulu's name appeared among the decree-holders and he did not object, so the joinder objection failed.
- The court did not determine whether Section 48(2)(a) (fraud or force) independently entitled the decree-holder to an extension, because it was unnecessary in view of its ruling under Section 15 of the Limitation Act.
- Direct effect on the parties: the appellant's limitation objections and the joinder objection failed; the decree-holder's execution could proceed. The court applied and followed existing authority rather than announcing a new legal principle beyond that application.
Order: Appeal dismissed. (Narasimham, J. agreed.)
Mohapatra, J.:— This appeal of the judgment-debtor No. 6, arising out of an execution proceeding, is against the judgment of Sri R.C Misra, Subordinate Judge of Berhampur, rejecting his petition under Section 47 of the CPC, taking up an objection of limitation. The decree, under execution, is a mortgage decree, the preliminary decree being dated 7-1-32 and the final decree being dated 2-11-32. The present execution petition was filed on 11-9-45, clearly beyond 12 years from the date of the final decree.
2. The original decree-holder was one Anem Tatayya. He had two sons, Anem Basanna and Anem Narasimhulu. Anem Narasimhulu is alive and has transferred his share in the decree to the 6th judgment-debtor, Krisna Chandra Sahani. Anem Basanna having died, his widow, Anem Peda Siva Paravatamma, has filed the present execution petition. Judgment-debtors 1 to 5 have no more interest inasmuch as they have sold their interest in the mortgage property and the sale proceeds have been paid towards the decree. The judgment-debtors 6 and 7 were subsequent purchasers in respect of some of the mortgage properties. The 7th judgment-debtor is dead and his two sons are judgment-debtors 8 and 9. Judgment-debtor No. 6 is the present appellant. Anem Basanna filed Execution Petition No. 54/35 praying for sale of the properties in the possession of judgment-debtors 6 and 7. Judgment-debtor No. 7 filed a counter objecting to the sale of the properties. The objections having been overruled, judgment-debtor No. 7 filed an appeal (A.S No. 7/47) and obtained a stay order and consequently the sale in E.P 54/35 was stayed. The interim stay order was passed on 21-4-36 and it was made final on 18-9-36. The stay having been made absolute, the Executing Court made an order on 16-10-36 “Stay made absolute. Petition closed”. The appeal was dismissed on 8-3-39.
3. The main point, urged before us, is that the execution is barred by 12 years' limitation as provided for under Section 48 of the CPC, which runs as follows:
“48. (1) 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, or
(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.
(2) Nothing in this section shall be deemed—
(a) to preclude the Court from ordering the execution of a decree upon an application presented after expiration of the said term of twelve years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application: or
(b) to limit or otherwise affect the operation of article 183 of the First Schedule to the Indian Limitation Act, 1908.”
4. The learned advocate, appearing on behalf of the decree-holder, very much relies upon the provisions of Section 15 of the Limitation Act and contends that the period during which the execution case was stayed by an order of the appellate Court has got to be excluded in the matter of computation of period of limitation of 12 years. The stay order having been obtained on 21-4-36 which was made absolute on 18-9-36, it continued till the date of the final disposal of the appeal which is 8-3-39. Therefore, he is entitled to the period covered between 21-4-36 to 8-3-39. If he is entitled to this period, the execution petition is manifestly within time.
5. Mr. H. Mohapatra, appearing on behalf of the appellant, contends that Section 48 of the CPC, is a self-contained section and is not controlled by section 15 of the Limitation Act. The important question, therefore, that arises for determination, is whether Section 48 of the CPC is controlled by the provisions of section 15, Limitation Act. Section 15 of the Limitation Act provides that 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 shall be excluded.
6. In the case reported in — ‘Subbarayan v. Natarajan’, AIR 1922 Mad 268, it was held that Section 48 of the CPC contains an unqualified prohibition, subject to certain exceptions mentioned in the section itself, and that the section is not controlled by section 15 of the Limitation Act. The reason given was that the words “the period of limitation prescribed for any suit or application for execution of a decree”, appearing in section 15, mean “prescribed in First Schedule of the Limitation Act.” This 12 years' limitation, not being prescribed by the provisions of the Limitation Act? Section 15 does not refer to Schedule at all, (but?) in general terms, simply uses the expression “period of limitation prescribed”. The omission of reference to Schedule in the Limitation Act in section 15 is significant and indicates that the words “limitation prescribed”, appearing in section 15, refer to the period of limitation prescribed under any law whatsoever and not merely as provided for in the Schedule to the Limitation Act. It is further pointed out that in Article 181 of the Schedule to the Limitation Act, we find
“applications for which no period of limitation is provided elsewhere in this Schedule or by Section 48 of the CPC, 1908.” and in Article 182, we find “for the execution of a decree or order of any Civil Court not provided for by Article 183 or by Section 48 of the CPC (V of 1908).”
7. These two Articles make it perfectly clear that Section 48 of the CPC provides for a period of limitation as contemplated under section 15 of the Limitation Act. The reasons given in the Full Bench decision of the Allahabad High Court — (‘Durga pal Singh v. Pancham Singh’. AIR 1939 All 403 FB) seem to us to be very sound and substantial. We, therefore, with great respect, follow the said decision and find that Section 48 of the CPC is controlled by section 15 of the Limitation Act. The Full Bench decision of the Allahabad High Court has also been fully discussed and the same principle has been followed in — ‘Ramgogal Bliutada Firm v. Sidram Aunayya’, AIR 1943 Bom 164; — ‘Sitaram v. Chunnilalsa Bhagchandsa’, AIR 1944 Nag 155 corresponding to ILR (1944) Nag. 250. It is also relevant to refer to a decision of the Patna High Court reported in — ‘Kirtyananda Singh v. Prithichand Lal’, AIR 1929 Pat. 597. It was observed in this case:
“………… In this view of the case, it is not necessary to consider the argument of the learned counsel for the appellants that Section 48 of the CPC is controlled by section 15, Limitation Act……. Had it been necessary to come to a finding on the point I would have inclined to take the view that Section 48 of the CPC is not controlled by section 15 of Limitation Act and that the only exception to sub-section 1 is that contained in sub-section 2. But as it is not necessary to decide the point in the present appeal I refrain from considering the question in the present case.”
8. This observation clearly indicates that it is in the nature of an obiter only and it cannot, therefore, be used as any precedent.
9. Mr. Mohapatra, appearing on behalf of the appellant, very strenuously contends that inasmuch as the execution case was struck off on 16-10-38, the decree-holders are not entitled to execution of the period of limitation upto the date of disposal of the appeal. He contends that when there was no execution pending, the stay order of the appellate Court was infructuous beyond 16-10-36. But as a matter of fact, on examination of records of E.P 54/35, we find that the order passed in the execution case was not that “the execution case was struck off” but that the “petition closed.” This is in accordance with the Rules of the Madras High Court contained in the Civil Rules of Practice And Circular Orders which were governing the Berhampur Courts at the time. Under the Rules of the Madras High Court, when an order for stay is made absolute by the appellate Court, the executing Court ought to close the execution case for statistical purposes. It is, therefore, clear that the order passed in the execution case as having been closed is not a judicial order striking off the execution case on account of default on the part of the decree-holder. Further the stay order passed by the appellate Court will amount, in law, to stay of execution of the decree as provided for under Or. XLI, Rule 5 of the CPC and not merely for the stay of the particular execution case. To us, as it appears, in face of the stay order, passed by the appellate Court, it would (sic) be competent for the decree-holder to proceed with the execution either in the execution case No. 54/35 or in any other execution case. As such, in our view, the decree-holder is entitled to add to the period of 12 years' limitation, provided for under Section 48 of the CPC, the period between 21-4-36 to 8-3-39.
10. A further point has been taken by Mr. Mohapatra, appearing on behalf of the appellant, that admittedly Narasimhulu and Anem Basanna were joint at the time when Anem Basanna died. So Narasimhulu is one of the decree-holders, and it not having been in the execution petition that the execution was also on behalf of Narasimhulu, the execution petition ought to be dismissed. He contends that even though Narasimhulu has parted with his eight annas interest in the decree, he not having transferred his share in the joint family properties is still entitled on the death of Anem Basanna as a coparcener to the interest of the llatter along with his widow. On a reference to the execution petition we find that Narasimhulu's name appears as one of the decree-holders. It is also mentioned that the execution is not only on behalf of the widow, who has applied for execution, but also on behalf of judgment-debtor No. 6. Narasimhulu's name having appeared in the list of decree-holders and he (Narasimhulu) not having objected to the execution at any stage whatsoever, we find that the execution is substantially in compliance with the provisions of Or. XXI, Rule 15 of the CPC.
11. Both the objections having failed, the judgment of the learned Court below is, therefore, confirmed.
12. It has to be observed further that the learned advocate, on behalf of the decree-holder, has also relied upon section 48(2)(a) of the CPC. His contention is that as the decree-holder was prevented by fraud or force of the judgment-debtor, that is, the judgment-debtor having objected to her execution of the decree, she (the decree-holder) is entitled to extension under section 48(2)(a) of the CPC. In fact of the view that we have already taken that the decree-holder is entitled to the extension of time on account of the provisions of Section 15 of the Limitation Act, we need not decide the point “whether she is entitled to extension of time also under Section 48(2)(a) of the CPC.” The appeal, therefore, is dismissed with costs.
Narasimham, J.:— I agree.
B/M.K.S
13. Appeal dismissed.
Alert