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Case Number
Judges
  • Hon'ble Mr. Justice Ram Labhaya
  • Hon'ble Mr. Chief Justice T. V. Thadani
Acts
  • provision of O. 21, R. 33. Rule 23 of O. 21 of the CPC,
  • Sub-rule (2) of Section 23 of O. 21 of the CPC
  • Sub-rule (2) of R. 93 of O. 31 of the CPC
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Hon'ble Mr. Justice Ram Labhaya
  • Hon'ble Mr. Chief Justice T. V. Thadani
Acts
  • provision of O. 21, R. 33. Rule 23 of O. 21 of the CPC,
  • Sub-rule (2) of Section 23 of O. 21 of the CPC
  • Sub-rule (2) of R. 93 of O. 31 of the CPC
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion (Thadani, C.J.)

Factual and Procedural Background

The suit produced a decree on 13-7-33 pursuant to a compromise providing payment of the decretal amount by instalments. The first instalment, due 13-7-39, was paid; the second instalment, due 15-11-39, was not paid. The compromise decree provided that failure to pay any instalment when due would make the balance payable immediately. An execution application was first filed in 1943; by that time the decree-holder had died and his legal representatives had not obtained a succession certificate, so the 1943 execution application was struck off on 19-3-45. A second execution application was presented on 2-1-47. Because the decree was over a year old, notice was issued to the judgment-debtor under the provisions applicable to older decrees; the judgment-debtor failed to appear in response to that notice. The executing Court ordered execution to proceed and issued a notice for settlement of terms of sale of attached property. The judgment-debtor appeared in response to the sale notice and objected, contending that the 1943 execution application was time-barred and therefore the 1947 execution application should be dismissed. The executing Court and the Addl. Subordinate Judge (A.V.D) both rejected that contention; the present appeal challenges that outcome.

Legal Issues Presented

  1. Whether a judgment-debtor may, in a subsequent execution application filed within three years of an earlier execution application, raise the plea that the earlier execution application (filed for the first time) was time‑barred where, on the earlier application, an order for attachment or execution was made by the Court and that order was not set aside.
  2. Whether, when notice is issued under O. 21 of the Civil Procedure Code (for a decree more than a year old) and the judgment-debtor fails to appear, the executing Court is bound to order execution to proceed and the judgment-debtor is thereby precluded from later pleading limitation in subsequent proceedings.

Arguments of the Parties

Judgment‑Debtor's Arguments

  • The judgment-debtor objected to the sale on the ground that the prior execution application made by the decree-holder's legal representatives in 1943 was time‑barred; hence the later execution application (filed in 1947) was liable to be dismissed.
  • In support of that contention, the judgment-debtor's advocate relied upon the decision of the Full Bench of the Allahabad High Court in Genda Lal… v. Hazari Lal…, reported in the opinion as A.I.R (23) 1956 ALL. 21 : (58 ALL. 313 F.B), which the judgment-debtor's counsel asserted supported his position.

The Opinion's Note on Parties' Arguments

The opinion does not set out a detailed, itemised statement of arguments advanced on behalf of the decree-holder; the Court's analysis focuses on precedent, statutory provisions (Order 21, Rules 22–23 of the CPC) and the procedural facts stated above.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Genda Lal… (Judgment‑Debtor) v. Hazari Lal… (Decree‑Holder), A.I.R (23) 1956 ALL. 21 : (58 ALL. 313 F.B) Supports the judgment‑debtor's contention that an execution application filed after limitation has run may render a subsequent execution application liable to dismissal. The Court acknowledges that this Full Bench decision supports the judgment‑debtor's contention but declines to follow it, distinguishing it from binding precedent relied upon by the Court (notably Mungul Pershad v. Girja Kant and decisions of the Calcutta and Madras High Courts) and finds itself unable to agree with the Allahabad Full Bench view.
Mungul Pershad v. Girja Kant, 8 Cal. 51 : (8 I.A 123 P.C) Principle that an order for attachment or for execution made by a court (even if the execution application is later struck off or dismissed) is conclusive and precludes the judgment‑debtor from later setting up limitation as a defence to execution when the attachment/order has not been set aside. The Court treats the P.C. decision as authoritative and foundational. It relies on that decision to hold that where an executing court, having jurisdiction, orders attachment/execution (and the attachment remains in force), a judgment‑debtor who did not appear when notice under O.21 was served cannot later urge limitation as a defence in a subsequent execution application filed within the relevant period.
Boidya Nath v. Bijoy Chandra, A.I.R (33) 1935 Cal. 306 : (166 I.C 604) Held that where judgment‑debtors appeared and pleaded limitation in time to appeal/review, the court could review the earlier order and the rule of constructive res judicata did not apply; used by some High Court judges to distinguish Mungul Pershad. The Court analyses this decision and observes that its ratio depended on the fact that objections were taken within the period allowed for appeal or review; in the present case the limitation objection was not taken within the period for appeal or revision. The Court treats Boidya Nath as distinguishable and not controlling on the facts here.
Bafatulla v. Kundar Mal, A.I.R (32) 1935 Cal. 330 : (155 I.C 723) Illustrates different facts: an ex parte finding that the execution application was not barred by limitation, notice issued, later both parties absent and the execution application was dismissed — i.e., there was no order that execution should proceed. The Court refers to this case to show that its facts differ from the present matter (in which the executing Court ordered execution to proceed). It uses that distinction to show Bafatulla does not support the debtor's plea here.
Aswini Kumar v. Karamat Ali, A.I.R (35) 1948 Cal. 185 : (83 C.L.J 278) Calcutta High Court decision holding that where notice under O.21, R.22 is served and the judgment‑debtor does not appear, and the Court directs further steps for execution, the debtor cannot later set up limitation; also treated Boidya Nath as containing observations that were obiter and inconsistent with the P.C. decision. The Court follows this decision and cites it as a supporting Calcutta High Court authority in harmony with Mungul Pershad. The opinion expressly states agreement with Aswini Kumar and applies its reasoning to the present facts.
Balakrishnayya v. Lingarao, A.I.R (30) 1943 Mad. 449 : (I.L.R (1943) Mad. 804) Holds that an executing Court's order directing filing of sale papers as part of execution implies a determination that the decree was capable of execution and operates as res judicata, even if the execution petition is ultimately dismissed as not pressed. The Court refers to this Madras High Court view approvingly and finds it consistent with the P.C. decision, adopting the reasoning that orders directing execution steps amount to conclusive determinations for the purpose of subsequent contestation of limitation.
Venkatranga Reddi v. P.C. Sithamma, A.I.R (28) 1941 Mad. 440 : (200 I.C 27) Explains that sub‑rule (1) of R.23 O.21 covers cases where the judgment‑debtor does not appear and also cases where he appears but fails to satisfy the Court; an order under sub‑rule (1) that the decree be executed is an appealable adjudication binding until reversed. The Court relies on this analysis (authored by Patanjali Sastri, J.) to reject the view that only an order made after consideration under sub‑rule (2) amounts to an adjudication. The opinion adopts the logic that failure to appear under the proper notice, leading to an order under R.23(1), precludes later raising of limitation in subsequent execution proceedings.

Court's Reasoning and Analysis

The Court's reasoning proceeds from the specific procedural facts to statutory interpretation and precedent:

  1. Fact‑finding emphasis: The Court highlights four facts seen as material — (i) there had been an order of attachment before judgment which remained confirmed at the date of the decree (so reattachment in execution was unnecessary), (ii) the property remained under attachment at the date of the second execution application (1947), (iii) on the second application the Court issued notice under Order 21, Rule 22 of the CPC because the decree was more than a year old, and the judgment‑debtor did not appear, and (iv) the executing Court ordered execution to proceed and ordered proclamation of sale together with notice for settlement of terms of sale.
  2. Precedent analysis — Privy Council (Mungul Pershad): The Court reads the Privy Council decision in Mungul Pershad v. Girja Kant as establishing that where an executing Court (properly seized) makes an order for attachment or execution, that order must be regarded as a determination that the decree is not barred by limitation, and a later attempt by the judgment‑debtor to set up limitation in subsequent execution proceedings is precluded unless the order of attachment/sale has been properly set aside.
  3. Statutory focus — Order 21, Rule 23 CPC: The Court explicates Rule 23 of Order 21 (reproducing its sub‑rules) and holds that where notice under the rule is served and the person to whom notice is issued does not appear, sub‑rule (1) requires the Court to order execution to proceed. Sub‑rule (2) (addressing objections) does not apply where the judgment‑debtor failed to appear at the prescribed stage; the stage to take the limitation objection was the appearance date under the notice. The Court concludes that the executing Court was bound to order execution when the judgment‑debtor did not appear.
  4. Distinguishing conflicting authorities: The Court acknowledges the Allahabad Full Bench decision (Genda Lal) supporting the debtor's contention but finds it inconsistent with the Privy Council and the decisions of the Calcutta and Madras High Courts (Aswini Kumar, Balakrishnayya, Venkatranga Reddi). The Court distinguishes Boidya Nath on the basis that, in that case, the limitation objection had been taken within the period available for appeal/review and therefore the court could reconsider the earlier order — a factual distinction not present here.
  5. Outcome of analysis: Applying the statutory rule and the precedents the Court considers authoritative, the Court holds that the debtor, having failed to appear in response to the notice under Order 21, Rule 22, cannot in the subsequent execution application set up the plea that the earlier (first) execution application was time‑barred. The order directing execution to proceed must stand until set aside on appeal or by other appropriate proceedings.

Holding and Implications

Holding: The appeal is dismissed and the Court orders that the judgment‑debtor pay costs.

Implications:

  • The practical effect for the parties is that the executing Court's order to proceed with execution (made after proper notice under Order 21 where the judgment‑debtor did not appear) stands and the judgment‑debtor is precluded from raising the plea that the earlier execution application was time‑barred, absent reversal or appropriate setting aside of the earlier order for attachment/execution.
  • The Court grounds its decision on the Privy Council authority (Mungul Pershad) and subsequent High Court decisions (Calcutta and Madras) that are treated as consistent with that authority; the opinion expressly declines to follow the Allahabad Full Bench decision cited by the judgment‑debtor. The opinion thus resolves the matter in accordance with the cited precedents rather than announcing novel legal doctrine.

Disposition in the original opinion: "Appeal dismissed." (Ram Labhaya, J. agreed.)

Show full summary ...

    Ajimuddin Applt. v. Budheswar Sarma Resp.

    Thadani, C.J:— This is a second miscellaneous appeal from the order of the learned Addl. Subordinate Judge, A.V.D, dated 15-7-48, by which he affirmed the order of the executing Ct. the Munsiff of Nowgong, who had ordered the execution of the decree obtained by the decree-holder to proceed.

    2. The facts material to the appeal are these. The judgment in the suit was passed on 13-7-33 upon a compromise arrived at between the decree-holder & the judgment-debtor, according to which the decretal amount was to be paid in instalments; the 1st instalment was payable on 13-7-39; this instalment was paid by he judgment-debtor. The 2nd instalment was payable on 15-11-39, but was not paid. The compromise decree provided that on the failure of the judgment-debtor to pay any instalment as it felt due, the balance of the decretal amount would become payable at once. An execution appln. for the first time was filed in 1943, By then the decree, holder had died &, as his legal representatives had not obtained a succession certificate, the execution appln. filed in 1943 was struck off on 19-3-45. Two years later on 2-1-47, the present execution appln. was brought. As the decree sought to be executed was more than a year old, notice was issued to the judgment-debtor who, however, failed to appear. The executing Ct. thereupon ordered execution to proceed &, in pursuance of the order, a notice for settlement of the terms of the sale of the property which had been attached before judgment, was issued to the judgment-debtor. Tan judgment-debtor appeared in response to this notice & objected to the sale contending that as the execution appln. made by the legal representatives of the decree holder in 1943 was time-barred, the present execution appln. filed in 1947 was liable to be dismissed.

    3. Both the Cts. below have negatived this contention. The judgment-debtor has raised the same question before us. In support of his contention, the judgment debtor's advocate relied upon a decision of the F.B of the Allahabad H.C reported in Genda Lal…(Judgment-Debtor); v. Hazari Lal…(Decree-Holder).*, A.I.R (23) 1956 ALL. 21 : (58 ALL. 313 F.B), which no doubt supports his contention. But it is also plain that the learned Judges of the Allahabad H.C arrived at their decision after distinguishing the case before their Lordships of the P.C, reported in Mungul Pershad v. Girja Kant, 8 Cal. 51 : (8 I.A 123 P.C). It may be conceded that the facts of the case before us are almost identical with the facts present before the F.B of the Allahabad H.C Nevertheless, we are unable to persuade ourselves to agree with the view taken by the Allahabad H.C, in view of the decisions of the Calcutta & Madras High Courts, to which wo will presently refer & which, we think, are in harmony with the decision of the P.C reported in Mungul Pershad v. Girja Kant, 8 Cal. 51 : (8 I.A 123 P.C)

    4. In order to appreciate the full import of the decision of their Lordships of the P.C it is necessary to emphasis the following facts present in the case before us: 1. There was an order of attachment before judgment, which, at the date of the passing of the decree on 13-7-38, was not vacated, but confirmed; it was, therefore, not necessary to reattach the property in execution of the decree in 1913, 2. The property continued to remain under attachment at the date of the 2nd execution appln. made in 1947, 3. On the 2nd appln., the Ct. issued a notice under the provisions of O. 21, R. 22 of the CPC the decree being more than an year old in response to which the judgment-debtor failed to appear 4. The executing Ct. then ordered execution to proceed & ordered a proclamation of sale to issue together wish a notice for the settlement of the terms of the sale.

    5. Now, in the Calcutta case, to which we have referred, their Lordships of the P.C observed:

    “The Courts below make no reference fro the order, or the attachment under it & in the list of dates set out by the Subordinate Judge, the order, & the date of it, are wholly omitted. Admitting for the sake of argument, but only for the sake of argument, that, the decree was barred when the sixth appln. was made, when the notice was served on 23-9-1874, & when the petn. of 8-10-1874 was presented & that the subordinate Judge ought to have dismissed the petn. upon the ground of limitation, although it was not set up or relied upon by the judgment-debtor, still his order, though erroneous, Page: 76was valid, not having been reversed…. But, as already observed, the Subordinate Judge had jurisdiction upon the petn. of 8-10-1874 to determine whether the decree was barred on 8-10-1871, & he made an order that an attachment should issue. He whether right or wrong, must be considered to have determined that it was not barred. A Judge in a suit upon a cause of action is bound to dismiss the sail, or to decree or the deft, if it appears that he cause of action is barred by limitation. But if, instead of dismissing the suit, he decrees for the pltf., his decree is valid unless reversed upon appeal; & the deft, cannot, upon an appln. to execute the decree, set up as an answer, that the cause of action was barred by limitation.”

    6. We think their Lordships of the P.C have plainly laid down that even though at the date of an execution appln. made for the first time, the execution is time-barred if no objection is taken to the execution of the decree on the ground that it is barred by limitation, & the executing Ct. orders execution to proceed, whether by attaching the property or ordering its sale, a judgment-debtor cannot, upon a second appln. made within 3 years of the disposal of the first appln. without having the order of attachment or sale properly set aside, set up the plea that at the date of the first execution appln. the execution was time-barred. It is true, their Lordships of the P.C have not expressly referred to a 23 of O. 21 of the CPC but we think they had in view the provision of O. 21, R. 33. Rule 23 of O. 21 of the CPC, is in these terms:

    “(1) Where the person to whom notice is issued under the last preceding rule does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed.

    (2) Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit.”

    7. In the case before us, it is not disputed that when a notice was issued to the judgment-debtor under R. 23 of O. 21, upon the 2nd execution appln. made by the decree-holder, the judgment-debtor did not appear. The executing Ct. was then bound to pass an order that the decree be executed. Sub-rule (2) of Section 23 of O. 21 of the CPC has no application to the facts of the present case. Sub-rule (2) of R. 93 of O. 31 of the CPC does not contemplate appearance of a judgment-debtor at a subsequent stage; Sub-rules (1) & (2) deal with the same stage of proceedings; sub-r. (1) contemplates the non-appearance of a judgment-debtor; sub-r. (2) his appearance, but at the same stage of the proceedings. In this case, the date on which the judgment-debtor could have taken the objection as to limitation, was the date mentioned in the notice to him under R. 32 of O. 21. His failure to appear on the prescribed date, properly led the executing Ct. to pass an order ordering the decree to be executed which must stand until it is reversed on appeal or other appropriate proceedings.

    8. The applt's advocate next relied upon a decision of the Calcutta H.C reported in Boidya Nath v. Bijoy Chandra, A.I.R (33) 1935 Cal. 306 : (166 I.C 604). The ratio decidendi of that case, however, was that when the judgment-debtors appeared & took the plea of limitation, they were within time to appeal against the order of 13-5-1933 & that the Ct. which passed that decree had power to review the order of 13-5-1933 on the petn. of the judgment debtors; both the appeal & the petn. for review being within time, the Ct. was within its jurisdiction on 10-6-1939, to entertain the petn. of the judgment-debtor that the case was barred by limitation, & that the rule of constructive res judicata did not apply. It was on this basis that the learned Judges of the Calcutta H.C distinguished the decision of their Lordships of the P.C reported in Mungul Pershad v. Girja Kant, 8 Cal. 51 : (8 I.A 123 P.C). In the case before us, it does not appear that the objection as to limitation was taken within the period of limitation allowed for an appeal or revision.

    9. We were next referred to a case reported in Bafatulla v. Kundar Mal, A.I.R (32) 1935 Cal. 330 : (155 I.C 723). In that case, there was an ex parte finding that the execution appln. was not barred by limitation & the Ct. issued a notice to the judgment-debtor to show cause why the execution should not proceed against him. On the date fixed for showing cause, namely, 28-11-1931, both the judgment-debtor & the decree-holder were absent, & the execution appln. was dismissed; there was no order that the execution do proceed.

    10. Das, J., of the Calcutta H.C had occasion to consider this aspect of the case in Aswini Kumar v. Karamat Ali, A.I.R (35) 1948 Cal. 185 : (83 C.L.J 278), in which an order had been passed after a notice had been served under O. 21, R. 22 of the CPC calling upon the judgment-debtor to show cause why the decree should not be executed against him. The judgment-debtor did not appear in pursuance of that notice, & the Ct. directed the decree-holder to take further steps in the matter of the execution of the decree, & directed him to file process & costs. Commenting on the decision of the Calcutta H.C reported in Boidya Nath v. Bijoy Chandra, A.I.R (22) 1935 Cal. 306 : (156 I.C 604) to which reference has already been made, Das, J., observed:

    “With all respect to the learned Judges, it seems to me that the petn. of objection filed by the judgment-debtor before the same Ct. cannot be regarded as an appeal from the order of that Ct., nor was the appln. filed as an appln. foe review as such, & the grounds taken were not good grounds for review. It appears, however, that in the Page: 77case Cha judgment-debtor in his petn. of objection had challenged the service of notice under O. 21, R. 22 of the CPC & the decree-holder did not controvert the allegation. It may be taken, therefore, that the order of 13-5-1933 was not an order which was made after due service of notice under O. 21, R. 22 of the CPC.… The general observations made in that judgment must be read in the light of the rinding? arrived at in that case. The observations made in that case were really in the nature of obitor dicta, having regard to the finding on the question of notice under O. 21, R. 22 of the CPC”

    11. Das, J., then referred to the decision of their Lordships of the P.C, to which wd have referred & observed that the decision reported in Boidya Nath v. Bijoy Chandra A.I.R (22) 1936 Cal. 306 : (156 I.C 604) runs counter to certain decisions of the Calcutta H.C & was opposed to the decision of the Judicial Committee reported in Mungul Pershad v. Grija Kant, 8 Cal. 51 : (8 I.A 123 P.C). It is true that Das, J., has not referred to the F.B decision of the Allahabad HC reported in Genda Lal…(Judgment-Debtor); v. Hazari Lal…(Decree-Holder).* A.I.R (23) 1936 ALL. 21 : (53 ALL. 313 F.B) but we do not think that it matters, in view of the fact that Das, J., has followed the decision of their Lordships of the P.C reported in Mungul Pershad v. Grija Kant, 8 Cal. 51 : (8 I.A 123 P.C).

    12. The Madras H.C, in a case reported in Balakrishnayya v. Lingarao, A.I.R (30) 1943 Mad. 449 : (I.L.R (1943) Mad. 804) has taken the view that where there is an order passed by the executing Ct. directing the decree-holder to file sale papers in regard to certain items of the property, it must be deemed to involve determination by the Ct. that the decree was capable of execution & operated as res judicata notwithstanding the fact that there was no express decision on the point & the execution petn. was ultimately dismissed as not pressed.

    13. In Venkatranga Reddi v. P.C Sithamma, A.I.R (28) 1941 Mad. 440 : (200 I.C 27), Patanjali Sastri, J. (now a Judge of the S.C of India) observed:

    “It will be noticed that Sub-r. (1) of R. 23, O. 21 covers not only cases where the judgment-debtor does not appear in response to the notice or does not offer any objection to execution, but also those where he appears & objects but fails to satisfy the Ct. that the decree should not be executed. In all such cases, the Ct. is required to ‘order’ the decree to be executed. That is to say, even in cases where the judgment-debtor appears 4 ‘offers any objection to the execution of the decree’ & the Ct. ‘considers such objection.’ it has to act under Sub-r. (1) of R. 23 O. 21 of the CPC) if it is not satisfied that the objection is valid. Where such objection is found to be tenable, the Ct. his to make, under sub-r. (2) ‘such order as it thinks fit,’ that is to say, according to the nature & scope of the objection upheld. There is thug no justification for the view that an order under sub-r. (1) “has to be automatic” & that an order under sub-r. (2) alone amounts to an ‘adjudication’ such as would fall within the definition of a decree, Ct. we are unable to see any such distraction a; the learned Judge supposed to exist between these sub-rules. If, therefore, the Ct'g ‘order’ under sub-r. (1) that the decree should be executed is, as it must be held to be, in case where the judgment-debtor appears & objects be the objections are overruled, an appealable adjudication binding on the parties so long it is unreversed, it is difficult to see why a similar order under the same provision in cases where the judgment-debtor does not choose to appear in response to the notice duly Forced on him, should be regarded as not having that effect. It seems to us that there can be no logical difference for this purpose between an appln. which results to partial satisfaction of the decree & is then allowed to be dismissed & one which is eventually dismissed without any ‘fructification.’”

    14. The learned Judges of the Madras H.C, in the above-mentioned case examined at length the reasoning of the F.B case reported in Genda Lal v. Bazari Lal, 53 ALL. 313 : (A.I.R (23) 1936 ALL 21) & pointed out that the point was practically concluded by the decision of their Lordships of the P.C reported in Mungul Pershad v. Grija Kant, 8 Cal. 51 : (8 I.A 123 P.C). Patanjali Sastri, J. remarked:

    “It is no doubt true, as pointed by the learned Chief Justice in Genda Lal v. Bazari Lal, 53 All. 313 : (A.I.R (23) 1936 All. 21), that in the case before the P.C the judgment-debtor appeared in the previous execution proceeding in which attachment had been ordered & obtained a stay of the sale acknowledging the validity of the order for attachment & consenting to its continuance it that their Lordships rested their conclusion also upon such conduct of the judgment-debtor. But this wan not the only ground of their decision. It seems to us that the decision is also based on the conclusiveness of the order for attachment made on the petn. of 8-10-1874…. We are, therefore, of opinion that an order for execution made alter notice to the judgment-debtor who does not appear & offer any objection, precludes him from raising a plea of limitation in subsequent proceedings even though the appln. on which the order was passed does not fructify & is eventually struck off or dismissed.”

    15. With respect, we find ourselves in agreement with the decision of the Madras H.C & the latest decision of the Calcutta H.C reported in Aswini Kumar v. Karamat Ali, A.I.R (35) 1948 Cal. 165 : (82 C.L.J 278). We accordingly hold that it was not open to the judgment-debtor to question the execution of the decree ordered to proceed in pursuance of the appln. made in 1947 of the ground that the first execution appl. made in 1943 was time-barred. The result is that the appeal is dismissed with costs.

    Ram Labhaya, J.:— I agree.

    16. Appeal dismissed.

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    Comments

    Ajimuddin Applt. v. Budheswar Sarma Resp.
    (Feb 28, 1950)