1. This appeal by the executing decree-holders is directed against an order of the Special Sub-ordinate Judge of Ranchi holding that they were not competent to proceed with the execution in question and that the execution is barred by limitation. The facts giving rise to this appeal are these. The Central India Spinning, Weaving and Manufacturing Company Ltd. (pro forma respondent No. 10) instituted on 21-9-1934 mortgage suit No. 47 of 1934 against Khemraj Janranadhar and others, whose heirs are the principal respondents 1 to 9. The suit was decreed on compromise sometime in 1936. The terms of the compromise were that the entire mortgage dues were settled at Rs. 7000/- and the mortgagors defendants would execute a sale deed for the three items of the mortgaged properties for this amount. The defendants did not execute the sale deed as agreed and there was an application in the Suit itself to have the sale deed executed by the Court according to the compromise. A dispute arose whether plots 1523 and 1425 were also to be included in the sale deed, that is, whether these plots were also the subject-matter of the mortgage. The Court held on 27-6-1936 that those plots were not included in the mortgage and thereafter the suit was decreed in terms of the compromise, but the decree stated at the same time that these two plots were not included. The plaintiff then preferred an appeal and the appellate Court dismissed the appeal with the observation that the direction of the trial Court excluding plots 1523 and 1425 shall be set aside. Thereafter, the decree-holder executed the compromise decree in Execution case No. 65 of 1959 and ultimately the executing Court executed on 3-1-1940 a sale deed on behalf of the judgment-debtors in respect of all the mortgaged properties including plots 1523 and 1425 and the sale deed was registered. On 22-7-1940, a notice was given by the decree-holder to the judgment-debtor a demanding possession. But to no effect. Hence the decree-holder, that is, the Central Spinning company instituted Title suit No. 27 of 1940 for recovery of possession of the said properties as well as for mesne profits. On 20-11-1941 the suit was decreed and a decree for possession was passed, except in respect of plots 1523 and 1425 and it was directed that mesne profits would be determined in a future proceeding. This decree was-executed in Execution case No. 24 of 1942 its September 1942. Possession was delivered to the decree-holder over items Nos. 2 and 3 of the mortgaged properties, but possession could not be delivered over item No. 1 which consisted of plots 1537 to 1542, as in the writ the Court directed that the bailiff shall not pass over plot No. 1523 for delivering possession over plots 1537 to 1542.
2. Then the decree-holder instituted title suit No. 39 of 1943 for a declaration that the plaintiff had a right of way over item No. 1 of the property through plot No. 1523. On account oil this suit, the execution proceeding was stayed at the instance of the decree-holder who filed a petition to that effect on 4-8-1943. On 15-5-1945, Title suit No. 39 of 1943, was decreed, that is, right of way over plot No. 1523 was declared in favour of the decree-holder. On the same date, the stay order in Execution case No. 24 of 1942 was vacated and the execution proceeding recommenced. In the mean time, on 18-8-1943 the Spinning Company (hereinafter referred to as the original decree-holder) executed a sale deed (Ext. D/1) in favour of Surajmull Modi (hereinafter-refereed to as the executing decree-holder).
3. On 1-5-1945 the sons of the original judgment-debtors instituted title suit No. 41 of 1945 in which they challenged the sale deed executed by the executing Court and prayed for permanent injunction restraining the original decree-holder and the executing decree-holder from taking possession of plots 1537 to 1542. A prayer for temporary injunction by the plaintiff of this title suit was rejected by the trial Court, but allowed by the High Court on appeal on 29-8-1945. The title suit was dismissed on 27-9-1948 and the temporary injunction granted by the High Court was in the eye of law automatically vacated; but the plaintiff of that suit preferred a first appeal to the High Court and this Court stayed the delivery of possession during the pendency of the appeal. This appeal was dismissed on 17-9-1956 and, therefore, the stay order was automatically vacated; but the executing Court passed the formal order vacating the stay and asking the decree-holder to take steps in the execution case on 20-5-1957. After some adjournments, the execution case was dismissed on 3-7-1957 for default of the decree-holder to take steps but on part satisfaction.
4. It will be noticed, however, that the execution case remained stayed at the instance of the principal respondents from 29-8-1945 to 17-9-1956, though the executing Court vacated the stay order on 20-5-1957.
5. Surajmall Modi, then filed two applications in 1959, one for revival of Execution case No. 24 of 1942 and the other a fresh application for execution. The former application was rejected, but the second application was numbered as Execution case No. 69 of 1959. After some time, Surajmull Modi died and his heirs were substituted in May 1960 as executing decree-holders. They are the appellants in this Court. The principal respondents, that is, the heirs of the original judgment-debtors filed an application in this execution case under Section 47 of the CPC. They contended that, inasmuch as the decree had not been assigned in writing in favour of Suraj Mull Modi or his heirs, it would not be executed by them. They further asserted that, in view of the provisions contained in Section 48 of the CPC the decree could not be executed inasmuch as more than 12 years had elapsed since the date of the decree. Both these objections prevailed before the Court below and, hence, this appeal by the executing decree-holders.
6. Mr. Lalnarain Sinha who appeared for the appellants, has challenged both the findings and he is supported by the learned Advocate appearing for respondent No. 10, that is, the original decree-holder. The first question to be considered is whether the executing decree-holders are competent to execute the decree in Title suit No. 27 of 1940. There is difference between the parties as to whether this decree was transferred to Surajmull Modi by the sale deed (Ext. D/1) dated 18-8-1943. After stating the facts upta 5-2-1940 when the executing Court executed the sale deed in favour of the original decree-holder in respect of the mortgaged properties, the sale deed recites as follows:
“And whereas in the decree dated 20th November, 1941 in Title suit No. 27 of 1940 under O. XX Rules 6 and 7 of the CPC. Babu Mahabir Prasad Sub Judge Ranchi deleted from the schedule at Properties in the aforesaid deed of conveyance dated 3rd February, 1940 Plots Nos. 1425 and 1523 on the ground of their having been wrongly insated in the said deed of conveyance, entitling thus the vendors to the ownership and possession of the three properties described in the schedule hereunder.
And whereas the vendors through their selling Agents Messrs Jethabhai Ramdas and Co., Ranchi, took possession on 31-12-1942 of the two properties viz., (1) the land bearing holding No. 68 under Khevat No. 3 in Lalpor Konka and (2) the premises bearing Municipal Holding No. 411 in Paharitola on Hermu Road described in the schedule hereunder, in execution of the vendors' aforesaid decree. And whereas the vendors have not yet got possession of the third property bearing Municipal Holding No. 459, Plots Nos. 1537 ta 1542 inclusive in Marwari Tola, Ward No. 1, Jagdam Sahai Lane, and litigation in respect of securing 3 ft. passage to the said property still pending before the Sub-ordinate Judge, Ranchi.
7. And whereas the purchaser, has agreed by letter dated 1-6-1943 with the Vendors to buy the three properties described in the schedule below for Rupees ten thousand only subject to the conditions in the Vendors' letter No. 9471 dated 24-5-43 that the vendors would not be responsible to proceed with the aforsaid litigation as also with the vendors' application to the Barkagaon State for securing a passage to the land holding No. 68 in Lalpur Konka beyond the stages at which then stood on day of acceptance of the purchasers' offer to the vendors, which date was 11-6-1943 when the Vendors conveyed by a letter their acceptance of the offer to the buyer.
8. Now this indenture witnesseth that in consideration of the sum of Rs. 10,000/- (Rupees Ten thousand only) against which the purchaser paid the vendors before execution of these presents Rs. 2,500/- on 1-6-1943 and Rs. 7,500/- on 30-6-1943, the two sums making together the total of Rs. 10,000/- the receipt of which the Vendors hereby acknowledge the Vendors as owners hereby convey and transfer unto the purchaser all the three premises described in the schedule hereunder-written with all their rights title and interest in the premises. To hold the same unto the purchaser as full owner thereof with all incidental rights attached to the premises. The veadors hereby covenant with the purchaser that the premises hereby expressed to be conveyed are unencumbered and that they have full power to convey the same, and further that the vendors shall keep the purchaser indemnified against all encumbrances claims and demands whatsoever made relating to the same by the vendors or any person, claiming through, under or in trust for them, save in respect of the third property bearing Municipal Holding No. 459 Plots Nos. 1537 to 1542 inclusive in Marwari Tola Ward No. 1 Jagdambsahas Lane, and in respect of which litigation as above-mentioned is pending.”
9. Then comes the Schedule which describes the properties. It was argued on behalf of the judgment-debtors respondents that the last clause quoted above, which speaks of the sale is silent regarding the assignment of the decree and, therefore, the decree was not assigned to Surajmull Modi. On the other hand, it was argued on behalf of the appellants that this clause has to be read with the preceding three clauses which speak of the decree in Title suit No. 27 of 1940 as well as the litigation in respect of the passage over plot 1523, that is, the litigation involved in Title Suit No. 39, of 1943, and these clauses read together do amount to assignment of the decree in Title suit. No. 27 of 1940 to Surajmull Modi. I am inclined to agree with the learned Advocate for the appellants.
10. In the alternative, learned Advocate for the appellants submitted that even if there was no written assignment of the decree by the original decree-holder in favour of Surajmall Modi, the latter was entitled to execute the decree in view of the provisions contained in Section 146 of the CPC. This section reads as follows:
“Save as otherwise provided by this code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.”
11. It was contended by the learned Advocate General on behalf of the principal respondents that the appellants cannot take advantage of this section because the provision contained in Order 21, R. 16 of the Code must override it on account of the opening words “Save as otherwise provided by this code or by any law for the time being in force.” But Order 21, Rule 16 does not contain a prohibitive provision. On the other hand, it contains a permissive provision enabling the transferee of a decree to execute the decree. It does not provide that in no other case any person, other than the original decree-holder or his heirs can execute the decree. As the provision contained in R. 16 is not contrary to or inconsistent with the provision contained in Section 146, the argument of 1 the learned Advocate General must fail. In Jugul kishore Saraf v. Raw Cotton Co. Ltd., (S) AIR 1955 SC 376, it was held that there is nothing in Order 21, Rule 16, which expressly or by necessary implication, precludes a person, who claims to be entitled to the benefit of a decree under the decree-holder but does not answer the description of being the transferee of that decree by assignment in writing or by operation of law, from making an application or execution which the person from whom he claims could have made. It was further observed that a person may conceivably become entitled to the benefits of a decree without being a transferee of the decree by assignment in writing or by operation of law. In that situation the persons so becoming the owner of the decree may well be regarded as a person claiming under the decree-holder. It is true that in that case the transfer had taken place before the decree had been passed and the transferor bad conveyed to the transferee the debts which the claimed from the debtor in a suit during the pendency of the suit; but the proposition of law stated above applies with equal force to a case where a transfer takes place after the decree and the circumstances show that the transferee became in effect the decree-holder. In Sm. Saila Bala Dassi v. Sm. Nirmala Sundari Dassi, AIR 1958 SC 394 their Lordships said that Section 146 was introduced for the first time in the Code of Civil Procedure 1908 with the object of facilitating the exercise of rights by persons in whom they come to fee vested and being a beneficent provision should be construed liberally so as to advance justice and not in a restricted or technical sense. In view of the principles laid down by the Supreme Court, I am of the opinion that in the circumstances of the instant case Suraj Mull Modi, and after his death his heirs, were entitled to execute the decree in question.
12. On the question of limitation, the learned Advocate on behalf of the appellants submitted that the time during which the execution proceedings were stayed on account of the injunction order passed by the High Court in the suit instituted by the principal respondents should be excluded under Section 15(1) of the Indian limitation Act. The question is whether Section 15 of the Limitation Act controls Section 48 of the CPC. Section 48 reads as follows:
“(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 direct 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 the 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 afiect the operation of Article 183 of the First Schedule to the Indian Limitation Act, 1908”.
13. Section 15 of the Limitation Act enacts:
“(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.
(2) In computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded.”.
14. It has been held by the High Courts of Allahabad, Madras, Calcutta, Bombay and Orissa that Section 15 controls Section 48 of the CPC and Section 48 prescribes a period of limitation (see Durag Pal Singh v. Pancham Singh, AIR 1939 All 403 (FB), Kandaswami Pillai v. Kannappa Chetty, AIR 1952 Mad 186 (FB) Amarendra Lal v. Manindranath, (S) AIR 1955 Cal 269, Ramgopal Bhutada, Firm…Judgment-Creditors v. Sidram Aunayya…Judgment-Debtor ., AIR 1943 Bom 164 and Krisnna Chandra v. Siva Paravatamma, AIR 1953 Orissa 13). The contrary opinion is expressed in Ganeshi Lal v. Imtiaz Ali, AIR 1931 Oudh 351 but that was based on an earlier decision of the Madras High Court which has been overruled by the aforesaid Full Bench decision of that Court. There is no direct decision of this Court on this point. In Krityanand Singh v. Pirthichand Lal, AIR 1929 Pat 597, Kulwant Sahay, J. observed as follows:
“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. Several authorities have been cited on both sides on the question whether the word ‘prescribed’ in Section 15 of the Limitation Act means prescribed by the Limitation Act, or whether it covers also the period of limitation prescribed by Section 48 of the CPC, and also on the question whether Section 48 of the CPC, does prescribe any period of limitation at all. The following cases have been cited on one side or the other; Phoolbas Koonwur v. Lalla Jogeshur Sahay, ILR 1 Cal 226 (PC). Jurawan v. Mahabir Dube, ILR 40 All 198 : (AIR 1918 All 216 (2)) Shiam Karan v. Collector of Benares, ILR 42 All 118: (AIR 1919 All 64 (2)) and Krishna Dayal Gir v. Sakina Bibi, 20 Cal WN 952 : (AIR 1917 Pat 485) in view of my finding that Section 15 has no application to the present case it is not necessary to consider whether Section 48 of the CPC, as controlled by Section 15, Limitation Act. Had it been necessary to come to a finding on the point I would have been inclined to take the view that Section 48 of the CPC is not controlled by Section 15, Limitation Act and that the only exception to sub-section (1) is that contained in subjection (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.”
15. But it is manifest that his Lordship did not decide this question and the observation that Section 48 of the CPC, is not controlled by Section 15 of the Limitation Act was obiter. It is remarkable that no reason has been given by his Lordship in support of the above observation, whereas the reasoning given in the aforesaid decisions of the other High Courts in support of the contrary View are unassailable.
16. The question whether the provisions of the old Limitation Act (Act 14 of 1859) controlled the limitation of one year provided by Section 246 of the CPC (Act 8 of 1859) came up or consideration before the Judicial Committee in 1875 in the case of ILR 1 Cal 226 (PC). Their Lordships of the Judicial Committee observed as follows:
“The two statutes were passed in the same year, the assent of the Governor General being given to Act 8 on 22nd March, to Act 14 on 4th May, 1859. The object of the first was to enact a general Code of Procedure for the Courts of Civil Judicature not established by Royal Charter. The object of the second was to establish a general law of limitation in supersession both of the Regulations which had governed those courts and the English statutes which had regulated the practice of the Courts established by Royal Charter. Looking to sub-section (5) of section 1 and Sections 3 and ti, Act 14 of 1859, their Lordships have no doubt that the intention of the Legislature was that the period of Limitation resulting from Section 246 of Act 8 should, in the case of a minor, be modified by the operation of Section 11 of Act 14”.
17. It is well-settled that the Limitation Act and the Code of Civil Procedure are to be read together, because both are statutes relating to procedure and they are in “Pari Materia and, therefore, to be considered and construed together as one system explanatory of each other; see Her Highness Ruckmaboye v. Lullobhoy Mottichund, 5 Moo Ind App 234 (PC) and Tribeni Prasad Singh v. Ramasray Prasad, ILR 10 Pat 670 at pp. 702 and 718 : (AIR 1931 Pat 241 at pp. 246 and 253). In Balmakund Marwari v. Basanta Kumari, AIR 1925 Pat 1 Das, J. said;
“The Code of Civil Procedure and the Limitation Act are the two great procedural codes in India and they were amended in the same year and were to come into operation on the same day. They are statutes in Pari materia and are to be taken together as forming one system and as interpreting and enforcing each other”
18. The Limitation Act of 1859 did not provide any period of limitation for several applications under the Code of Civil Procedure, nor did it provide for appeals and review. The periods of limitation in respect of these matters were contained in the Code of Civil Procedure of 1859. The Limitation Act of 1871 (Act 9 of 1871) repealed the Limitation Act of 1859 and its scheme was far more comprehensive than the Act of 1859. It also provided for the limitation of appeals and certain applications which had been provided for in the Code of Civil Procedure of 1859. This Limitation Act of 1871 repealed practically all those portions of the Code of Civil Procedure of 1859 which contained periods of limitation for specified applications. It was in the Act of 1871 that for the first time a provision corresponding to Section 15 of the present Limitation Act was inserted. Again in 1877, there were two corresponding enactments dealing with civil procedure and limitation, namely. Act 10 of 1877 and Act 14 of 1877 respectively. For the first time, a provision corresponding to Section 48 of the present Code of Civil Procedure was inserted in Act 10 of 1877; and because of this additional provision consequential changes were made in the second schedule to the Limitation Act of 1877.
19. In 1908, the Code of Civil Procedure and Limitation Act now in force were enacted. Though Section 15 of the present Limitation Act has been expressly made applicable to an application for the execution of a decree, the corresponding provision in the Act of 1877, applied to suits only. It is true that, while other provisions prescribing periods of limitation for applications, appeals and suits found in the Code of Civil Procedure of 1859 were subsequently transferred to the Limitation Act the provision corresponding to Section 48 of the Code, namely. Section 230 of the Code of 1877, continued to remain in the code; but the legislature was well aware that Section 48 of the code also prescribed a period of limitation apart from the period of limitation prescribed by the articles in the Limitation Act. That is why Section 48 of the Coda is referred to in Articles 181 and 182 of the Limitation Act. Article 181 refers to applications for which no period of limitation is provided elsewhere in the schedule to the Limitation Act or by Section 48 of the CPC of 1908. Article 182 relates to the execution of a decree or order of any civil Court not provided for by Article 183 or by Section 48 of the CPC of 1908. It is manifest that the Legislature referred in those articles to Section 48 of the CPC as prescribing a period of limitation. It is also remarkable that just as the articles in the Limitation Act prescribes periods of limitation, Section 48 of the CPC speaks of “limitation for execution”. Further, the period fixed by Section 48 of the Code must be deemed to have become a part of the Limitation Act by a process of incorporation in Articles 181 and 182.
20. It is true that Section 3 of the Limitation Act speaks of the period of limitation prescribed by the first schedule only; but this does not justify reading the words “by the first schedule” after the words “prescribed” in every section of the Act. It is significant that there is reference to the schedule after the word “Prescribed” in Sections 3, 6 and 29 only, whereas in Sections 4, 5, 12, 13, 14, 15, 16, 19 and 20 there is no such reference. In view of the unqualified terms of Section 15 of the Limitation Act and of the fact that periods of limitation are prescribed in a number of statutory enactments, there is no justification for restricting the operation of that section to the periods of limitation prescribed by the Limitation Act or the first schedule thereto. In my opinion, therefore, the word “prescribed” in Section 15(1) of the Limitation Act does not mean “Prescribed by the first schedule” to the Act; it includes a period of limitation prescribed by a general statute like the Code of Civil Procedure, and the period fixed by Section 48 of the Code must be deemed to have be come a part of the limitation Act by a process or incorporation in Articles 181 and 182.
21. In view of the above finding, the period during which the execution remained stayed on account of the order of injunction at the instance of the principal respondents must be excluded in computing the period of limitation, that is, 12 years, as laid down by Section 48 of the CPC. This period covered about 11 years: and if it is added to the period of 12 years, the executing decree-holders could execute the decree within 23 years of the date of decree, namely, 20-11-1941. Hence, the execution application filed in 1989 was not time barred. In the result, the order of the Court below is set aside and the execution case shall proceed. The appeal is accordingly allowed, but, in the circumstances of the case without cost.
CH/K.S.B
22. Appeal allowed.