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Citation Codes
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Case Number
Advocates
  • Kailaspati, for the appellant.
  • S.N Roy (with him, J.P Sinha), for the respondent.
Judges
  • Kulwant Sahay
  • Macpherson, JJ.
Acts
  • (5) of Article 182 of the First Schedule to the Indian Limitation Act,
  • provisions of Order XXI, rule 11, Civil Procedure Code.
  • section 47 of the Code of Civil Procedure
  • Order XXI, rule 90, Civil Procedure Code
  • Order IX, rule 9, Civil Procedure Code,
  • Order XXI, rule 90,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Kailaspati, for the appellant.
  • S.N Roy (with him, J.P Sinha), for the respondent.
Judges
  • Kulwant Sahay
  • Macpherson, JJ.
Acts
  • (5) of Article 182 of the First Schedule to the Indian Limitation Act,
  • provisions of Order XXI, rule 11, Civil Procedure Code.
  • section 47 of the Code of Civil Procedure
  • Order XXI, rule 90, Civil Procedure Code
  • Order IX, rule 9, Civil Procedure Code,
  • Order XXI, rule 90,
See more information ...
Smart Summary

Case Summary — Judgment of Kulwant Sahay, J. (with Macpherson, J. concurring)

Factual and Procedural Background

This appeal was brought by the judgment-debtor against an order of the Subordinate Judge of Gaya dated 29 January 1927, which dismissed the judgment-debtor's objection under section 47 of the Code of Civil Procedure to the execution of a decree. The judgment-debtor's primary objection on appeal was that the execution application was barred by limitation. Other objections in the lower court related to alleged incorrectness of the account in the execution petition and non-compliance with Order XXI, rule 11, Civil Procedure Code; these were overruled by the Subordinate Judge.

Key dates and procedural events (as stated in the opinion):

  • Decree passed: 24 March 1922.
  • First application for execution: 6 June 1922.
  • Sale of some judgment-debtor property: 19 September 1922 (purchased by the decree-holder).
  • Sale confirmed: 26 May 1923.
  • Balance remaining after that sale: Rs. 9,840-8-6.
  • Present application for execution (for the balance): 15 May 1926.

After the 19 September 1922 sale, the judgment-debtor applied on 23 October 1922 to set aside the sale under Order XXI, rule 90. That application was fixed for hearing on 26 May 1923, on which date the decree-holder filed a hazari (list of witnesses). The r90 application was dismissed for default on 26 May 1923 and the sale was confirmed. Subsequent applications by the judgment-debtor for rehearing and review were made and dismissed for default. During proceedings relating to a second review application (filed 7 September 1923), the decree-holder filed a list of witnesses on 14 December 1923 and a petition of objection on 12 January 1924. The review was dismissed on 19 January 1924.

Legal Issues Presented

  1. Whether the filings by the decree-holder — specifically the hazari (list of witnesses) filed on 26 May 1923 in the proceedings under Order XXI, rule 90, and the list of witnesses (14 December 1923) and petition of objection (12 January 1924) in the review proceedings — can be treated as applications to take "some step-in-aid of execution" of the decree so as to revive or give a fresh start to the period of limitation under Article 182(5) of the First Schedule to the Indian Limitation Act, thereby preventing the present execution application (filed 15 May 1926) from being time-barred.

Arguments of the Parties

Appellant (Judgment-Debtor)'s Arguments

  • The hazari filed by the decree-holder on 26 May 1923 was made in connection with an application under Order XXI, rule 90 (to set aside the sale), and therefore could not be treated as an application under section 47 CPC to take a step-in-aid of execution.
  • Relying on the authority of Chaudhuri Jagdish Misser v. Chaudhuri Sureshar Misser, it was contended that an application to set aside a sale under Order XXI, rule 90 is not an application under section 47 and proceedings taken thereon are not proceedings in execution; accordingly, steps taken in those proceedings cannot be treated as steps-in-aid of execution.

Respondent (Decree-Holder)'s Arguments

  • The decree-holder relied on three filings — 26 May 1923, 14 December 1923 and 12 January 1924 — asserting that they were steps taken to remove obstacles to execution and so were steps-in-aid of execution that would give a fresh start to the limitation period under Article 182(5).
  • In substance the decree-holder asserted that steps taken in proceedings which affect execution (even if not strictly the execution proceedings) qualify as steps-in-aid of execution because they remove or address obstacles raised by the judgment-debtor that block further execution.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Chaudhuri Jagdish Misser v. Chaudhuri Sureshar Misser Authority for the proposition that an application to set aside a sale under Order XXI, rule 90 is not an application under section 47 CPC and proceedings under r.90 are not proceedings in execution of a decree. The judgment-debtor relied on this authority to argue that steps taken in r.90 proceedings cannot be treated as steps-in-aid of execution. The Court considered the authority but held that Article 182(5) requires only that an application be to take some step-in-aid of execution (not that it be in execution proceedings), and therefore that reliance on Chaudhuri Jagdish Misser did not prevent the Court from treating the hazari as a step-in-aid of execution in the circumstances of the case.
Sheo Sahay v. Jamuna Prashad Singh Principle that any step taken by the decree-holder to remove an obstacle thrown by the judgment-debtor in the way of execution is a step-in-aid of execution; the step need not be taken in execution proceedings. The Court relied on this principle to support the view that the filing of the hazari (and potentially the later documents) in proceedings that affected execution could be treated as steps-in-aid of execution, because those proceedings created an obstacle to further execution of the decree.
Deonarain Singh v. Ram Prasad Held that if a sale in execution is set aside, the decree-holder's right to execute the decree revives and a subsequent application made within three years from the date on which the sale was set aside would not be barred by limitation. The Court used this precedent to illustrate that the setting aside of a sale re-opens execution rights and that related steps aiming to preserve or revive execution rights may therefore give a fresh start to limitation; this supported treating the hazari as a step-in-aid which restarted the limitation period.
Trilokinath Jha v. Banamali Jha Discussed whether an application for confirmation of sale is a step-in-aid of execution and suggested a practical test: if inability to obtain possession would entitle taking out further execution, the application may be a step-in-aid because execution is not complete until possession is obtained. The Court applied the test suggested in this case by analogy to conclude that if the r.90 application had succeeded it would have re-opened execution proceedings; accordingly, the decree-holder's step in the r.90 proceedings (filing of the hazari) could be a step-in-aid of execution.

Court's Reasoning and Analysis

The pivotal question was whether the decree-holder's filings in proceedings under Order XXI, rule 90 (and later review proceedings) were "applications to take some step-in-aid of the execution of the decree" within the meaning of clause (5) of Article 182 of the First Schedule to the Indian Limitation Act, so as to give a fresh start to the three-year limitation period for execution.

The Court's step-by-step analysis:

  1. The Court observed that the present execution application (15 May 1926) was prima facie barred because it was made more than three years after the first execution application (6 June 1922), unless an intermediate application amounted to a step-in-aid which restarted the limitation period.
  2. The judgment-debtor argued that the hazari filed on 26 May 1923 was part of r.90 proceedings and, relying on Chaudhuri Jagdish Misser, that r.90 proceedings are not execution proceedings and therefore could not provide a step-in-aid. The Court examined this contention against the text of Article 182(5).
  3. The Court held that Article 182(5) does not require the step to be taken within the formal execution proceedings; it requires only that an application be made to take some step-in-aid of execution. Therefore, an application in another proceeding which affects execution may qualify.
  4. The Court relied on Sheo Sahay v. Jamuna Prashad Singh for the proposition that any step taken by the decree-holder to remove an obstacle thrown by the judgment-debtor in the way of execution is a step-in-aid of execution, even if taken outside formal execution proceedings.
  5. Applying the principle to the facts, the Court found that the r.90 application to set aside the sale did, in fact, create an obstacle to further execution: if successful it might lead to a second sale that could change the amount recoverable and might even fully satisfy the decree, thus affecting whether fresh execution was necessary. This practical uncertainty impeded any fresh attempt at execution by the decree-holder.
  6. The Court applied the reasoning in Deonarain Singh v. Ram Prasad and the practical test discussed in Trilokinath Jha v. Banamali Jha (whether subsequent inability to obtain possession or the setting aside of sale reopens execution) to conclude that a successful r.90 application would have re-opened execution proceedings.
  7. On that basis the Court concluded that the filing of the hazari on 26 May 1923 constituted an application to take a step-in-aid of execution and therefore gave a fresh starting-point for the three-year limitation period; the subsequent execution application filed on 15 May 1926 therefore fell within three years of that step and was not time-barred.
  8. The Court added that it was not necessary to decide whether the later filings (the list of witnesses on 14 December 1923 and the petition of objection on 12 January 1924) independently qualified as steps-in-aid, but indicated an inclination that they too would amount to steps-in-aid because they sought to remove obstacles to execution.

Holding and Implications

APPEAL DISMISSED

Holding (core ruling): The Court affirmed the order of the Subordinate Judge of Gaya (29 January 1927) dismissing the judgment-debtor's objections; the appeal was dismissed with costs. The Court held that the filing of the hazari by the decree-holder on 26 May 1923 was an application to take a step-in-aid of execution and therefore gave a fresh start to the period of limitation. The subsequent execution application (15 May 1926) was within three years of that step and was not barred by limitation.

Implications:

  • Direct effect on the parties: The Subordinate Judge's order is affirmed; the decree-holder's application for execution of the balance was held not to be time-barred and the judgment-debtor's appeal was dismissed with costs.
  • Broader legal implication: The Court relied on and applied existing principles from prior authorities (as cited) concerning what constitutes a step-in-aid of execution. The opinion does not claim to establish a new precedent beyond applying those principles to the facts of this case. No broader or novel rule beyond the Court's application of existing authorities was expressly pronounced in the text of the opinion.

Concurrence: Macpherson, J. agreed with the result ("I agree").

Show full summary ...

    Jagdeo Narain Singh v. Rani Bhubaneshwari Kuer

    Kulwant Sahay, J.:— This is an appeal by the judgment-debtor against the order of the Subordinate Judge of Gaya, dated the 29th January, 1927, dismissing his objection under section 47 of the Code of Civil Procedure to the execution of the decree. The objection was that the decree was barred by limitation. There were other objections as regards the incorrectness of the account given in the execution petition and the execution petition itself not being in accordance with the provisions of Order XXI, rule 11, Civil Procedure Code. The learned Subordinate Judge has overruled all the objections of the judgment-debtor. The only point pressed in the present appeal is the question of limitation.

    The decree under execution was passed on the 24th March, 1922. The first application for execution was made on the 6th of June, 1922. Some property belonging to the judgment-debtor was sold on the 19th of September, 1922 and purchased by the decree-holder herself. The decree, however, was not realised in full, there being a balance of Rs. 9,840-8-6 still to be satisfied. The sale held on the 19th September, 1922, was confirmed on the 26th of May, 1923 and the present application for execution was filed on the 15th May, 1926. This application for execution is prima facie barred inasmuch as it was made beyond three years from the date of the first application for execution unless the bar of limitation is saved on account of any application made by the decree-holder which can be treated as a step-in-aid of execution.

    It is contended on behalf of the decree-holder that applications to take some steps-in-aid of execution were made by her on the 26th May, 1923, on the 14th December, 1923 and on the 12th January, 1924 and that, therefore, the present application was not barred by limitation. The three applications which the decree-holder seeks to treat as applications to take some steps-in-aid of execution were made under the following circumstances.

    After the sale of the property on the 19th September, 1922, the judgment-debtor made an application for setting aside the sale under Order XXI, rule 90 and this application was made on the 23rd of October, 1922. The date fixed for hearing this application under Order XXI, rule 90, appears to have been the 26th of May, 1923. On that date the decree-holder filed a hazari or list of witnesses in attendance. This is the first step-in-aid of execution relied upon by the decree-holder to save the present application for execution from limitation. The application under Order XXI, rule 90, however, was dismissed for default on the same day, i.e, 26th May, 1923 and the sale was confirmed. On the 29th May, 1923, the judgment-debtor made an application for; re-hearing under Order IX, rule 9, Civil Procedure Code, which was dismissed for default on the 4th of July, 1923. On the 6th of July, 1923, the judgment-debtor made an application for review of the order of the 26th May, 1923, dismissing his application for setting aside the sale for default. This application for review was dismissed for default on the 27th of July, 1923. On the 7th September 1923, the judgment-debtor made a second application for review and in the course of the trial of this application the decree-holder filed a list of witnesses on the 14th of December, 1923 and a petition of objection to the review on the 12th of January, 1924. The filing of the list of witnesses and the petition of objection are relied upon by the decree-holder as further steps-in-aid of execution. The application for review, however, was dismissed by the Court on the 19th of January, 1924 and the present application for execution for the balance of the amount left after part satisfaction in the first execution case was filed on the 15th of May, 1926.

    The point for consideration, therefore, is whether the hazari filed by the decree-holder in the Miscellaneous Case relating to the setting aside of the sale and the petition of objection to the second application for review and the list of witnesses filed by the decree-holder in connection therewith can be treated as applications to take some step-in-aid of execution so as to save the present application from the bar of limitation.

    The learned Subordinate Judge was of opinion that they were steps-in-aid of execution and I am inclined to agree with him.

    It is contender on behalf of the judgment-debtor that the bazari filed by the decree-holder on the 26th of May, 1923, was in connection with an application under Order XXI, rule 90, Civil Procedure Code and it cannot be treated as an application to take some i-step-in-aid of execution. On the authority of Chaudhuri Jagdish Misser v. Chaudhuri Sureshar Misser it is contended on behalf of the judgment-debtor that an application to set aside a sale under Order XXI, rule 90, is not an application under section 47 of the Code and the proceedings taken thereupon are not proceedings in execution of a decree and that, therefore, any step taken by the decree-holder in the proceeding taken upon the application under Order XXI, rule 90, cannot be treated as a step-in-aid of execution.

    Clause (5) of Article 182 of the First Schedule to the Indian Limitation Act, however, does not require that the application to take some step-in-aid of execution of the decree should be made in the course of execution proceedings; all that it requires is that an application should be made to take some step-in-aid of the execution of the decree. That application may be made in connection with any other proceeding which may not strictly speaking be proceedings in execution of the decree but which affects the execution of the decree. As was held by this Court in Sheo Sahay v. Jamuna Prashad Singh any step taken by the decree-holder to remove an obstacle thrown by the judgment-debtor in the way of the execution of the decree is a step-in-aid of execution. It is not necessary that the step must be taken in the execution proceedings the step may be taken in any proceeding which has the effect of throwing an obstacle to the execution of the decree. In the present case the application under Order XXI, rule 90, did throw an obstacle in the way of the decree-holder's taking out execution. Only a part of the decree had been satisfied by sale of the property and the objection taken by the judgment-debtor was that the property had been sold for an inadequate price on account of irregularities in the conduct of the sale. If the application had succeeded and the sale had been set aside, it was possible that the amount realised by a second sale of the same properties might have been larger than the amount fetched at the first sale and in that case the balance due under the decree might have been less than the amount left after the first sale, or the entire decree might have been satisfied and there would have been no need for taking out a fresh execution. The decree-holder therefore was under a serious difficulty in applying for a fresh execution inasmuch as it was not known what would be the amount for which execution was to be taken, or whether there would be any need to take out a fresh execution at all. There was thus an obstacle thrown in the way of the decree-holder to her making any application for further execution of the decree and any step taken by her in the proceeding relating to the setting aside of the sale would, in my opinion, be a step-in-aid of execution of the decree. It has not been contended on behalf of the judgment-debtor that the filing of the hazari on the 26th of May, 1923, cannot be treated as a step-in-aid of execution. What has been contended is that such step in the course of a proceeding for setting aside the sale is not a step which can save a subsequent application for execution. There can be no doubt that if the application for setting aside the sale had succeeded and the sale had been set aside, the decree-holder would have been entitled to make a fresh application for execution; and it was held in Deonarain Singh v. Ram Prasad that in case of the sale in the execution of the decree having been set aside, the decree-holder's right to execute the decree revived and the second application if made within three years of the date on which the sale had been set aside would not be barred by limitation. In Trilokinath Jha v. Banamali Jha the question considered was whether art application for confirmation of sale is an application to take a step-in-aid of execution and the learned Judges in the course of their judgment observed as follows: “A useful test to apply would be this supposing the decree-holder purchaser is unable to obtain possession, would it entitle him to take out further execution for that portion of the money which is represented by the property purchased by him of which he is unable to obtain possession? If the fact that he is unable to obtain possession would reopen the execution proceedings, then there might be something to be said in favour of the view that execution was not complete until he obtains possession of the property,” and their Lordships were evidently of opinion that in such a case the application for confirmation of the sale would be a step-in-aid of execution. Applying this test to the present case, it is clear that if the application under Order XXI, rule 90, had succeeded, it would have re-opened the execution proceedings and in that case the step taken by the decree-holder in the course of the proceeding under Order XXI, rule 90, would be a step-in-aid of execution. I am, therefore, of opinion that the filing of the hazari by the decree-holder in the course of the proceeding under Order XXI, rule 90, on the 26th of May, 1923, was an application to take a step-in-aid of execution and it gave a fresh start to the period of limitation. The present application having been filed on the 15th of May, 1926, is within three years from that date and is therefore not barred by limitation.

    In this view of the case it is not necessary to consider whether the objection filed by the decree-holder on the 12th of January, 1924, in the course of the proceeding for review of the order of the 26th of May, 1923, or the list of witnesses filed by her in the same proceeding on the 14th of December, 1923, would amount to an application to take some step-in-aid of execution. I am, however, inclined to hold that they would amount to steps-in-aid of execution inasmuch as the proceedings were obstacles thrown in the way of the decree-holder to further execution of the decree for the balance of the decretal amount. Any step taken to remove such obstacle would amount to taking-some step-in-aid of execution of the decree.

    The result is that the order made by the must be Subordinate Judge appears to be sound and must be affirmed. This appeal is dismissed with costs.

    Macpherson, J.:— I agree.

    Appeal dismissed.

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    Comments

    Jagdeo Narain Singh v. Rani Bhubaneshwari Kuer
    (Apr 13, 1928)