Dalel Singh v. Sm. Dhan Devi And Ors

1. The facts giving rise to this execution appeal are that on 12-7-1947 the decree-holder respondent obtained a decree for Rs. 11,0007- in appeal in the Nabha High Court against the judgment-debtor appellant. Nothing seems to have been done by the decree-holder to execute his decree for some time, presumably as he was awaiting developments in the system of Government in 'the country. His first move apparently was oh the 9-6-1950 when he applied to the District Judge at Patiala for a certificate for the transfer of the decree for execution to the Court at Simla and this certificate was granted to him on 28-6-1950. This certificate was presented in the Court of the District Judge at Ambala on 7-8-1950, and a few days later it reached the Court at Simla where execution proceedings started. The execution proceedings were resisted by the judgment-debtor on various grounds but his objections were dismissed by the learned Senior Sub-Judge on 17-3-1951 and he has come in appeal.

2. Some of the objections which were apparently raised on behalf of the judgment-debtor in the lower Court have not now been raised before me, and I shall only deal with those points which have been argued here. The first of these was one which was apparently not raised in the lower Court, namely, that the execution application was not within time as the application in the Court of the learned District Judge at Patiala, which was admittedly within three years of the date of the decree, did not amount to a step in aid of execution proceedings within the meaning of Article 182, Clause 5, Limitation Act. Clause 5 reads-

"(Where the application next hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order"

On this point the learned counsel for the appellant has relied on two decisions, the first by Bhide J. in -- 'Rughnath and Co. v. Firm Ram Gopal-Rohit Ram', 41 Pun L R 105 and the second by Kapur J. in--'Mr. D.H.M, Fram-jee v. Eastern Union Bank Ltd.', Chittagong, 52 Pun L R 471. The first of these decisions does not appear to me to be of any particular help to him. The facts there were that a decree was passed on the original side by the Calcutta High Court on 15-12-1924, and an application was made to that Court on 21-8-1936 for transmission of the decree for execution to the District Judge, Hissar. The application was granted and the transfer certificate reached the District Judge on 14-12-1936, but was returned on the ground that the address of the respondent was incomplete. The certificate was received back again on 23-2-1937, and an execution application was then filed. The execution application was held by the two lower Courts to be barred by time under Article 183, Limitation Act, which provides a period of twelve years for execution of a decree of a High Court in the exercise of its ordinary original civil jurisdic-tion, and Bhide J. observed that the learned counsel for the appellant has not challenged the correctness of the 'view taken by the Courts below that a mere application for an order for transmission of execution to another Court does not amount to an application for execution and cannot save limitation. The question whether such an application amounted to a step in aid of execution within the purview of Article 182, Clause 5, was not considered at all.

The other case cited referred to a decree passed in 1938 by a Court of Chittagong, which is now in Pakistan, and one of the points which arose was whether an application made in September 1943 to the Court of Chittagong praying for the issue of a certificate of non-satisfaction to the District Court at Simla, followed by the issue of such a certificate on 18-11-1943, was a step in aid which saved limitation. The matter was dealt with by the learned Judge in the following passage:

"A further objection taken was that the application for execution is barred by time. The decree, it was submitted, is of the 14th December 1938 and the application for grant of certificate which was made to the Chittagong Court is dated the 27th September 1943 and the certificate was granted on the 18th November 1943. This may or may not have been a step-in-aid but it was not accompanied by an application and therefore the step-in-aid for the purpose of limitation is valueless; see the discussion on this point at page 1735 of Rustomji's Limitation Act, Volume II, where it is stated:

'Under clause 5 there must be an application to the proper Court; the mere fact of a step-in-aid being taken or an order passed by the Court does not, unless there is an application, bring the case within Clause 5.' In this case all that seems to have been done is that a prayer was made to the Chittagong Court for issue of a non-satisfaction certificate of the decree to the District Court, Simla, and the order of the Court dated the 18-11-1948 was--'Certificate prepared today. Let the same be issued and sent to the District Judge, Simla. Ordered that the Ex, Case be struck -off.' This does not bring the case within Article 182 (5) of the Limitation Act. The steps taken therefore which terminated in the order of the. I8th November 1943 cannot help the decree-holder."

With due respect I cannot agree that the. passage referred to in Rustomji's Commentary on the Law of Limitation means, or can be taken as any support of the view, that an application of a kind referred to in that case could not be regarded as a step in aid of execution. The paragraph in question is headed "Step-in-aid without 'Application' is valueless" and as far as I can understand from a perusal of the whole paragraph it means that every-thing which is done by a decree-holder is not necessarily a step-in-aid of execution unless it is done by means of an application giving some indication of its being intended to be a step in aid. There is a foot-note to the following sentence:

"Under Clause 5 there must be an Application to the proper Court; the mere fact of a step-in-aid being taken or an order passed by the Court does not, unless there is an Application, bring the case within clause 5." In the foot-note a number of decisions have been cited. The first is -- 'Krishna Pattar v. Seetha Rama Pattar', 50 Mad 49 in which it was held by a Division Bench that the filing of a statement by a decree-holder objecting to the judgment-debtor's application to record satisfaction of the decree is not a step in aid of execution of the decree under Article 182 (5) and cannot, therefore, save his application for execution from being barred by limitation. In -- 'Raj Kumar v. Raj Lalshi Dabi', 12 Cal 441 an application by the decree-holder for a copy of the decree was relied on as a step in aid of execution but this contention was rejected by Cunningham and O'Kinealy JJ. who wrote separate judgments, and I shall first quote from the judgment of Cunningham J., who observed: "The next ground on which it is urged that limitation is not barred is that on the 10th January 1882, the decree-holder applied for a copy of the decree, in order, as the District Judge has found, that he might make a fresh application for execution. Here again the judgment-creditor has thought fit not to place on the record a copy of this application. We are, therefore, in the dark as to what were its terms, and as to whether It showed on the face of it anything from which we could properly infer that it was for the purpose of execution. We have, however, the fact that no execution was applied for until March 1884. Therefore, if the purpose with which the application was made was to obtain execution, it was certainly a long time before that purpose was carried into effect. Taking the mere fact of an application for a copy of the decree, we are not prepared to find that it would be fairly construed as an application to the Court to take a step in furtherance of the execution of the decree within the scope of para. 4 of Article 179 of the schedule of the Limitation Act,"

the words of which are similar to Article 182(5) in the Act as it stands at present.

O'Kinealy J. dealt with the matter as follows:

"His contention is that he has made an application to the Court to take a step in aid of execution. There is no such application on the record. If we were to decide the case upon such an application, we would be deciding it upon a document which has never been put before us, which we have not seen and of which we do not know anything."

It is thus clear that that case was decided on its own facts and that the learned Judges might even have been prepared to treat an application for a copy of the decree as a step in aid of execution if the application had been before them and its terms had clearly shown that this was its object. Another case cited in the foot-note is -- 'Malukchand Ratanchand v. Becliar Natha', 25 Bom 639, which is by a Full Bench of five Judges. The facts there were that an application for execution of a decree was made and granted on 4-11-1897. The process-fee, however, was not paid to the Nazir until ths 8th November. There was no written application in connection with this payment, nor did it appear that there was any oral application at the time of the payment except such as might be inferred from the fact of payment, and it was held that such a payment of process-fee did not constitute a fresh starting point from which the period of limitation prescribed by Article 179 began to run, and that an application such as is prescribed by that Article cannot be inferred from the mere fact of payment; at most it would merely be an application to receive the money and the payment would be no more than the performance of a condition essential to the order for execution. The only other case cited is -- "Thakur Ram V. Katwaru Ram', 22 All. 358, a decision by a single Judge who also held that the mere payment of process-fee for the issue of notice for the purpose of an inquiry under Section 287, Civil P. C., or the payment of costs for the issue for a proclamation of sale, unaccompanied by any application, would not operate to give a fresh starting point for limitation within the meaning of Article 179(4).

3. I have not been altogether able to understand what was meant by the learned Judge in--'D.H.M. Framjee v. Eastern Union Bank Ltd., Chittagong', 52 Pun L R 471 when he said:

"This may or may not have been a step in aid but it was not accompanied by an application and therefore the step in aid for the purpose of limitation is valueless."

There had clearly been an application for the issue of a certificate of non-satisfaction, and, therefore, when it was observed that this was not accompanied by an application I can only infer that the learned Judge thought that there had also to be an execution application, but my analysis of the passage cited from Rustomji's Commentary and the cases cited therein does not lead to any such conclusion. The meaning of it is in fact that nothing amounts to a step in aid of execution unless it is accompanied by an application which indicates its object clearly. The qualifications necessary for any act to amount to a step in aid are set out in note 99 on page 2778 of Volume III of 'Chitaley's Commentary' as follows:

(1) The step ashed for should be in furtherance of execution of the decree.

(2) The application must be in accordance with law and to the proper Court.

(3) The step must be one to be taken by the Court.

(4) There should be an application for such step and (5) The step must be with reference to the decree sought to be executed and not to some other matter.

I do not think it can possibly be said that the application of the decree-holder in the present case to the District Court at Patiala for the transfer of the decree to Simla for execution fails to fulfil any of these qualifications. The application was certainly in accordance with law and made to the proper Court. The issue of the transfer certificate was a step to be taken by the Court. There was a proper application and the step referred directly and only to the decree sought to be executed. The only point on which there would seem to have been any controversy was whether the step asked for could be said to be in furtherance of execution of the decree without there being already an execution application pending, but the .authorities on this point are discussed in note 100 on page 2779 and the conclusion of the author is that the general trend of opinion including that of the High Court of Madras, where an earlier decision to the contrary had been given, was that it is not necessary that an application for execution should be pending before an application can be regarded as one to take a step in aid of execution. I have, therefore, no hesitation in holding that the decree-holder's application in the present case amounted to a step in aid of execution within the meaning of Article 182(5).

4. The other point argued before me was that the decree passed by the High Court at Nabha in July 1947 was a foreign decree which could not be executed in the Court at Simla even in spite of the amendment of Section 43, Civil P. C., in 1950 but could only be 'enforced according to the law in force in 1947, namely, by filing a suit on the basis of the decree. The State of PEPSU is a Part B State under the constitution and section 43 as it stood amended in 1950 at the time of the decree-holder's application read as follows: "Any decree passed,--

(a) by a civil Court in a Part B State, or

(b) by a civil Court in any area within a Part A State or Part C State to which the provisions relating to execution do not extend, or

(c) by a Court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the jurisdiction of the Court by. which it was passed, be executed in the manner herein provided within the jurisdiction of any Court in the States."

The only question, therefore appears to be whether this applies to decrees passed before the Constitution came into force. Neither party has been able to cite any ruling directly bearing on this point but the learned counsel for the decree-holder has cited two decisions of the Bombay High Court which relate to analogous cases. The first case is -- 'Chunnilal Kastur-chand v. Dundappa Damappa', a decision by a Division Bench, -- 'AIR 1951 Bom. 190'. In this case the decree had been passed by a Court at Belgaum, then in British India, against a defendant residing in a native State called Jamkhandi, and even when the decree was transferred to Jamkhandi in 1948 for execution the execution application was dismissed as being of a foreign decree, but thereafter Jamkhandi became merged in the Province of Bombay, and in deciding the appeal of the decree-holders the learned Judges held that the relevant date for ascertaining the nature of the decree was not the date of filing execution but the date on which the Court was called upon to pass, an order for execution. At that time Jamkhandi had ceased to be a foreign territory and, therefore, the decree was executable, and even if it were held that the Belgaum Court was not a foreign Court 'qua' the Jamkhandi Court at the time of the dismissal of the execution, it had ceased to be so before the hearing of the appeal and the appellate Court had power to take notice of subsequent events and order execution in order to shorten litigation and to do complete justice between the parties. A similar view was also taken by a Full Bench in --'Bhagwan Shankar v. Rajaram', AIR 1951 Bom. 125 (FB), regarding a decree passed at Sholapur in British India against a resident of the State of Akalkot which later became merged in the Province of Bombay. These cases seem to be sufficient authority for the proposition that the state of affairs at the time of the execution of the decree is to be taken into consideration, and by that time the decree of the Nabha High Court had ceased'to be a foreign decree, and in my opinion could be transferred as a decree passed In a Part B State for execution to a Court in any State under the provisions of Section 43, Civil P, C. These were the only two points argued before me and I, therefore, dismiss the appeal but in the circumstances leave the parties to bear their own costs in this Court.