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Citation Codes
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citation codes
Case Number
Attorney(S)
  • Pugh (with him B.C Sinha and G.S Lal), for the appellants.
  • N.C Sinha and B.P Sinha, for the respondents.
Judges
  • Kulwant Sahay
  • Ross, JJ.
Acts
  • provisions of the Transfer of Property Act to the Code of Civil Procedure
  • Order XXI of the Code of Civil Procedure. Section 51 of the Code
  • Code of Civil Procedure and the provisions of Order XXXIV
  • provisions of Section 51 and Order XXI, rule 11,
  • provisions of Order XXXIV, rule 5, of the Code.
  • TRANSFER OF PROPERTY ACT
  • Article 181 of the Indian Limitation Act.I
  • Article 181 of the Limitation Act
  • Order XXXIV, rule 5 of the Code.
  • Order XXI, rule 11, sub-rule (2),
  • Order XXXIV, rule 5.Reference
  • INDIAN LIMITATION ACT
  • Order XXXIV, rule 5,
  • Order XXI, rule 11,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Pugh (with him B.C Sinha and G.S Lal), for the appellants.
  • N.C Sinha and B.P Sinha, for the respondents.
Judges
  • Kulwant Sahay
  • Ross, JJ.
Acts
  • provisions of the Transfer of Property Act to the Code of Civil Procedure
  • Order XXI of the Code of Civil Procedure. Section 51 of the Code
  • Code of Civil Procedure and the provisions of Order XXXIV
  • provisions of Section 51 and Order XXI, rule 11,
  • provisions of Order XXXIV, rule 5, of the Code.
  • TRANSFER OF PROPERTY ACT
  • Article 181 of the Indian Limitation Act.I
  • Article 181 of the Limitation Act
  • Order XXXIV, rule 5 of the Code.
  • Order XXI, rule 11, sub-rule (2),
  • Order XXXIV, rule 5.Reference
  • INDIAN LIMITATION ACT
  • Order XXXIV, rule 5,
  • Order XXI, rule 11,
See more information ...
Smart Summary

Court Opinion Summary — Kulwant Sahay, J.

Factual and Procedural Background

This appeal arises from proceedings to enforce a decree for sale in a mortgage suit. A preliminary decree was made on 23 August 1921 and a final decree for sale was made on 28 October 1922 while an appeal against the preliminary decree was pending before the High Court. The High Court made a decision on 29 October 1925 which, the Judge held, supplemented and completed the final decree of 28 October 1922. The Subordinate Judge had held that time for making the application for execution began to run from 29 October 1925 and that the application was not barred by limitation. Various objections by the judgment-debtors (including alleged mistakes in the application for execution and that the decree had been passed against certain dead persons) were disallowed by the Subordinate Judge. A fresh application for execution correcting errors was later filed. The present appeal challenges the Subordinate Judge's conclusions, and the appeal was dismissed with costs.

Legal Issues Presented

  1. Whether an application to enforce a mortgage decree for sale is an application in execution (and therefore governed by Article 182 of the Indian Limitation Act) or is merely an application to carry out the decree (and therefore governed by Article 181).
  2. Whether the phrase "when there has been an appeal" in Article 182 refers only to an appeal against the particular decree sought to be executed, or whether it extends to appeals which in any way imperil or affect the decree sought to be executed (i.e., determining the date from which the period of limitation runs).

Arguments of the Parties

Appellants' Arguments

  • The application to enforce a mortgage decree is not an application in execution but an application to carry out the decree; therefore, because no period of limitation is provided elsewhere in the Indian Limitation Act for such an application, Article 181 should apply.
  • The provisions of the Transfer of Property Act relating to decrees for sale and making orders absolute for sale (sections 88 and 89) have been transferred into the Code of Civil Procedure; Order XXXIV of the CPC is self-contained and the enforcement of a final decree for sale under Order XXXIV, rule 5 (which replaced the order absolute for sale under the Transfer of Property Act) is not an execution but merely carrying out an order for sale, thus attracting Article 181.

Arguments Presented by Mr. Pugh

  • Contended that a final decree for sale itself contains an order for sale and therefore it is not necessary to make a further application to the Court executing the decree for an order for sale.
  • Highlighted or raised considerations about the nature of applications under Order XXI, rule 11 — that an application for execution need not always ask the Court to make an order for sale but may ask the Court to effect a sale without attachment of the property already ordered to be sold in the final decree under Order XXXIV, rule 5.

Judgment-debtors' Objections (as recorded)

  • Objections regarding mistakes in the application for execution.
  • Objections that the decree under execution had been passed against certain dead persons.
  • The Subordinate Judge disallowed these objections; subsequently a fresh application correcting the errors was filed, and those objections were not further considered in the present appeal.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Balwant Singh v. Budh Singh (Allahabad High Court) Applied Article 181 of the Limitation Act to an application which was a continuation of a former execution previously stayed; required coming into Court within three years of removal of the bar to execution. The court noted that Balwant Singh applied Article 181 to a continued execution after a stay, but distinguished it: the present court holds that applications to enforce final decrees for sale in mortgage suits are applications for execution governed by Article 182, not Article 181.
Christiana Sens Law v. Banarashi Proshad Chowdhury Held that the words "where there has been an appeal" in Article 182(2) were interpreted to mean an appeal against the decree or order for the execution of which the application is made; held that an appeal by some defendants did not save another decree from the bar of limitation. The court criticised this reading as importing language into Article 182 that is not there, but accepted the related principle that where an appeal imperils the whole decree, the appeal will prevent limitation from running against judgment-debtors who have not appealed.
Rai Brijraj… v. Nauratan Lal… Held that "where there has been an appeal" in Article 182(2) means an appeal against a decree in the suit and does not include an appeal against an order made on an application to set aside that decree. The court observed that this authority does not assist the appellants because in the present case the appeal to the High Court was against the decree in the suit (not merely an order on an application to set aside the decree).
Ashfaq Husain v. Gauri Sahai (Privy Council) Held that where a later decree supplements and completes an earlier decree, time under the Limitation Act begins to run from the date of the later decree (or the date it was made absolute) which first justified joint execution. The court applied this principle to the present facts: the final decree for sale dated 28 October 1922 was imperiled by the pending appeal, and the High Court's decree of 29 October 1925 supplemented and completed the 1922 decree; therefore time began to run from 29 October 1925, making the application for execution not barred by limitation.

Court's Reasoning and Analysis

The court proceeded in a step-by-step analysis rooted in statutory structure and precedent as follows:

  1. Rejection of appellants' main contention: The transfer of provisions from the Transfer of Property Act into the Code of Civil Procedure (CPC) did not affect the period of limitation applicable to execution of decrees under Order XXXIV, rule 5. A final decree for sale under Order XXXIV, rule 5 is in the same position as any other decree for sale that might be passed by a Civil Court.
  2. Statutory basis for treating enforcement as execution: Execution of decrees is governed by Part II and Order XXI of the CPC. Section 51 of the Code confers power to order execution by attachment and sale or sale without attachment. Order XXI, rule 11(2) prescribes particulars an application for execution should contain (including clause (j) specifying the mode of assistance required). These provisions contemplate execution of a final decree for sale made under Order XXXIV, rule 5, and thus an application to enforce such a decree is an application in execution.
  3. Qualification of Mr. Pugh's point: Although a final decree for sale may contain an order for sale, an application under Order XXI, rule 11 does not necessarily ask the Court to make an order for sale; it may merely request the Court to effect a sale without attachment of property already ordered to be sold. This supports treating the enforcement step as falling within execution provisions.
  4. On the meaning of "where there has been an appeal" in Article 182(2): The court concluded that the phrase should be read to mean that if an appeal in any way imperils the decree sought to be executed, the period of limitation ought to be computed from the date of the final disposal of that appeal. There is no textual requirement that the appeal be against exactly the decree sought to be executed.
  5. Application of authorities: The court reviewed prior decisions — distinguishing Balwant Singh (where Article 181 was applied to a continuation of a stayed execution) and rejecting a narrow reading urged from Christiana Sens Law (which read Article 182 to require the appeal to be specifically against the decree sought to be executed). Rai Brijraj was noted but not helpful to appellants because the present appeal was against a decree in the suit. The Privy Council decision in Ashfaq Husain was treated as directly analogous: where a later decree supplemented and completed an earlier decree, time began to run from the later decree (or when it was made absolute).
  6. Factual application: Applying Ashfaq Husain, the court found that the final decree of 28 October 1922 was imperiled by the pending appeal and that the High Court decree of 29 October 1925 supplemented and completed the 1922 decree. Consequently, time began to run from 29 October 1925 and the application for execution was not barred by limitation.
  7. On other objections (errors in application and deceased judgment-debtors): The Subordinate Judge had disallowed these objections. A fresh application correcting the errors was filed, and the court considered these matters unnecessary to decide in the present appeal; they were left open for the fresh application.

Holding and Implications

DISMISSED — The appeal is dismissed with costs.

Implications:

  • The direct effect is that the Subordinate Judge's conclusion that the application for execution was not barred by limitation (time running from 29 October 1925) is upheld, and the appeal is dismissed with costs.
  • The court held that applications to enforce final decrees for sale in mortgage suits are applications for execution and are governed by Article 182 of the Indian Limitation Act rather than Article 181.
  • Other objections relating to mistakes in the application and the decree being against deceased persons were left open for decision upon the fresh application; the present opinion does not decide those issues.
  • This opinion does not purport to announce or emphasize any broader binding precedent beyond its application of established principles (it applies and distinguishes earlier authorities and follows the reasoning in Ashfaq Husain insofar as it governs computation of limitation where an appeal has imperiled a decree).

Appeal dismissed. (Ross, J. concurred.)

Show full summary ...

    Somar Singh v. Deonandan Prasad Singh

    Kulwant Sahay, J.:— The argument of the learned Counsel for the appellants is, that, in a mortgage decree the application to enforce the decree is not an application in execution, but it is an application to carry out the decree, and as no period of limitation is provided elsewhere in the Indian Limitation Act for such an application, Article 181 is the only Article which can apply. The point for decision, therefore, is as to whether an application to enforce a mortgage decree for sale is an application in execution. It is contended that the provisions of the Transfer of Property Act relating to the passing of decrees for sale and making orders absolute for sale contained in sections 88 and 89 of the Act have been transferred to the Code of Civil Procedure and the provisions of Order XXXIV are self-contained and the enforcement of a final decree for sale under Order XXXIV, rule 5, which took the place of the order absolute for sale under the Transfer of Property Act, is not an execution of the decree but simply amounts to carrying out the order for sale, and the application for carrying out the order for sale is governed by Article 181 of the Indian Limitation Act.

    I am of opinion that this contention is not sound. The transfer of the provisions of the Transfer of Property Act to the Code of Civil Procedure did not in any way affect the period of limitation for execution of a decree passed under Order XXXIV, rule 5 of the Code. A final decree for sale under Order XXXIV, rule 5stands in the same position as any other decree for sale that might be passed by a Civil Court. The provisions as regards execution of decrees are contained in part II and in Order XXI of the Code of Civil Procedure. Section 51 of the Code confers upon the Court the power to order execution of a decree by attachment and sale or by sale without attachment of any property. Order XXI, rule 11, sub-rule (2), prescribes the particulars which an application for execution should contain, and one of the particulars prescribed is contained in clause (j), viz., the mode in which the assistance of the Court is required, whether, by the attachment and sale or by the sale without attachment of any property. The provisions of Section 51 and Order XXI, rule 11, therefore, contemplate the execution of a final decree for sale made under the provisions of Order XXXIV, rule 5, of the Code. Mr. Pugh contends that a final decree for sale itself contains an order for sale and it is not necessary to make an application to the Court executing the decree for an order for sale. It is, however, to be noted that an application for execution of a decree under Order XXI, rule 11, does not necessarily ask the Court to make an order for sale, it may merely ask the Court to effect the sale without attachment of the property which had been ordered to be sold in the final decree for sale under Order XXXIV, rule 5.

    Reference is made to the decision of the Allahabad High Court in Balwant Singh v. Budh Singh. In that case an application for execution of a final decree for sale in a mortgage suit was pending, and during the pendency of that, application a suit was instituted to set aside the decree on the ground of fraud. The execution was stayed by an order dated the 9th December 1914 during the pendency of the suit. The suit was dismissed in April 1915 and an appeal against the decree dismissing the suit was also dismissed in April 1917. The next application for execution was made on the 11th June 1918. Their Lordships of the Allahabad High Court observed: If we assume (and we think that, it may fairly be so assumed) that the present application is one in continuation of the former, even then Article 181 of the Limitation Act must apply, and it was necessary for the appellant to come into Court within three years of the removal of the bar which prevented his carrying on the execution of his decree. That bar was “removed by the decision of the first Court on the 26th of April 1915”. Now, their Lordships applied Article 181 not to the application to enforce the decree but to an application to continue a previous execution which had been stayed. I am of opinion that applications for enforcing final decrees for sale in mortgage suits are applications for execution and are governed by Article 182 and not by Article 181 of the Schedule to the Indian Limitation Act.

    The second contention of the learned counsel for the appellants is that the words “when there has been an appeal” in Article 182 refer to an appeal against the decree which is sought to be executed, and that, in order to enable the decree-holder to compute the period of limitation from the date of the decree of the Appellate Court, it is necessary that the appeal should be against the decree which is sought to be executed and not against any other decree. In the present case the appeal to the High Court was against the preliminary decree which had been made on the 23rd of August 1921, and not against the final decree which was made on the 28th October, 1922, and which is now sought to be executed. Clause (2) of Article 182 prescribes:

    “(where there has been an appeal) the date of the final decree or older of the Appellate Court, or the withdrawal of the appeal.”

    There is nothing here to show that the appeal must be against the decree sought to be executed. In my opinion the intention of the Legislature in making this provision was that if an appeal in any way imperils the decree sought to be executed then the date of the final disposal of the appeal should be the date from which the period of limitation ought to be computed.

    Mr. Pugh refers to Christiana Sens Law v. Banarashi Proshad Chowdhury. In that case the plaintiff sued a number of defendants on a mortgage, and obtained a decree against all the defendants excepting defendants nos. 24-26 whose property was exempted from liability and the plaintiff was directed to pay their costs. Therefore, there were two decrees in the suit: (1) a mortgage decree in favour of the plaintiffs against all the defendants other than the defendants 24-26, and (2) there was another decree for costs in favour of the defendants 24-26 against the plaintiff. The defendants, other than the defendants, 24-26, preferred an appeal against the decree which was passed against them. The defendants 24-26 applied for execution of their decree for costs against the plaintiff after the disposal of the appeal of the other defendants. The application was made beyond three years from the date of the original decree. It was held that the appeal of the other defendants did not save the decree of the defendants 24 to 26 from the bar of limitation, and their Lordships observed that the words “where there has been an appeal” in Article 182, clause (2), mean “where there has been an appeal against a decree or order for the execution of which the application is made”. This is reading something into the Article which is not there. The rest of the judgment, of their Lordships, however, in that case goes to show that when the appeal imperils the whole decree, such an appeal will prevent limitation running against the judgment debtors who have not appealed.

    Reference has also been made to Rai Brijraj… v. Nauratan Lal….. In that case it was held that the words “where there has been an appeal” in clause (2) of Article 182 means “where there has been an appeal against a decree in the suit” and do not include an appeal against an order made on an application to set aside that decree. This case also does not help the appellants in the present case inasmuch as the appeal to the High Court in the present case was against the decree in the suit.

    In Ashfaq Husain v. Gauri Sahai a decree for sale was made against several defendants on the 25th of August, 1900, and an order absolute for sale under the provisions of the Transfer of Property Act was made on the 21st December, 1901. An application was made to set aside the decree by one of the defendants against whom the decree was ex parte, and it was set, aside as against him on the 11th March, 1902. Subsequently the suit was tried as against him and a decree was made against him on the 15th of August 1902, and an appeal against that decree was dismissed on the 16th November, 1904. On the 27th November, 1905, another order absolute for sale was made against this defendant. On the 21st December, 1905, application for execution was made against all the defendants based on the original decree of the 25th August, 1900, on the appellate decree made against one of the defendants after restoration of the suit against him on the 16th November, 1904, and on the two orders absolute for sale dated the 21st December, 1901, and 27th November, 1905. Objection was taken that the application was barred, and it was held by their Lordships of the Privy Council that the decrees of the 25th August, 1900, and the 16th November, 1904, were steps in granting the plaintiff the relief to which he was entitled. The latter decree supplemented and completed the former and for the first time justified the plaintiff in applying for the joint execution of the decree, and time under the Limitation Act began to run from the date of the latter decree or rather from the date it was made absolute, i.e, the 27th November, 1905, and consequently the application was not barred. In the case now before us the final decree for sale which was made on the 28th of October, 1922, during the pendency of the appeal against the preliminary decree was clearly imperiled by the appeal and the decree made by the High Court on the 29th October, 1925, clearly supplemented and completed the decree of the 28th of October, 1922. In my opinion the learned Subordinate Judge was right in holding that time began to run from the 29th of October, 1925, and the application was not barred by limitation.

    The other objections taken by the judgment-debtors related to certain mistakes in the application for execution and to the fact that the decree under execution was passed against certain dead persons. The learned Subordinate Judge disallowed these objections. It now appears that the application for execution, which is now before us, has been allowed to be dismissed and a fresh application has been made correcting the errors which had crept into the present application for execution. It is not necessary, therefore, to consider those objections; and the other objections raised by the judgment-debtors need not, therefore, be inquired into in the present appeal and they must be left open for consideration in the fresh application for execution which has been made.

    The result is that this appeal is dismissed with costs.

    Ross, J.:— I agree.

    Appeal dismissed.

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    Comments

    Somar Singh v. Deonandan Prasad Singh
    (May 20, 1927)