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Triloke Nath Jha v. Bansman Jha
Factual and Procedural Background
The matter before the Court concerns whether execution of a decree is barred by limitation. The procedural history in the opinion is as follows: the decree was obtained on 29 March 1917. The plaintiffs sought execution on 20 July 1917. On 21 February 1918 certain properties of the judgment-debtors were sold and the decree-holders themselves purchased those properties. Because the sale proceeds were insufficient to satisfy the decree, the decree-holders presented another application for execution on 29 March 1921. The lower Court held that the 29 March 1921 application was barred by limitation. The appeal challenges that conclusion and whether earlier applications by the decree-holders constituted steps-in-aid of execution which would save limitation.
Legal Issues Presented
- Whether the application presented by the decree-holders on 29 March 1921 for execution of the decree was barred by limitation.
- Whether earlier applications made by or on behalf of the decree-holders (in particular the application of 25 March 1918 for confirmation of sale and the application of 8 July 1918 for delivery of possession) constituted "applications to take some step-in-aid of execution" such that they would save the later application from being barred by limitation.
Arguments of the Parties
Appellants' Arguments (represented by Mr. Sen)
- The applications made on 25 March 1918 (for confirmation of the sale of 21 February 1918) and on 8 July 1918 (for delivery of possession) were applications to take steps-in-aid of execution.
- Because those earlier applications were steps-in-aid of execution, the subsequent application of 29 March 1921 is not barred by limitation.
- Mr. Sen additionally argued that where a decree-holder purchases at auction and no money passes (because he is purchaser), the execution cannot be said to be complete until the decree-holder has obtained the proceeds/the benefit of the sale — analogizing this to the position of a decree-holder who is not the purchaser and seeks payment of purchase money.
Respondents' / Judgment-Debtors' Arguments (represented by Mr. Baikuntha Nath Mitter)
- The decree-holder's purchase and the sale itself bring the execution to an end; whether the auction-purchaser actually obtains possession of the property is immaterial to completeness of execution.
- Accordingly, an application by a decree-holder to be put in possession of property purchased by him does not constitute a step-in-aid of execution and does not save subsequent execution proceedings from limitation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gobind Pershad v. Runglal | Held that an application for confirmation of sale is an application to take some step-in-aid of execution. | The Court noted this holding but observed that the decision was not followed by the Calcutta High Court and distinguished it from later Calcutta decisions that took the opposite view. |
| Panchanan Chowdkury / Panchanan Chowdhury v. Nrisingha Parshad Roy | Held that an application for confirmation of sale is not an application to take some step-in-aid of execution. | The Court relied on this earlier Calcutta decision to reject the contention that the 25 March 1918 confirmation application saved limitation. |
| Umesh Chandra Dass v. Shib Narain Mandai | Held that an application for confirmation of sale is not an application to take some step-in-aid of execution; emphasized auction-purchaser status and that no application is strictly required to confirm sale. | The Court cited this Calcutta decision to support the conclusion that the 25 March 1918 application did not save limitation. |
| Sariatoolla Molla v. Raj Kumar Roy | Calcutta High Court held that an application by a decree-holder to be put in possession is an application to take some step-in-aid of execution (following Allahabad decision in Moti Lal). | The Court acknowledged this authority as one of several Calcutta decisions supporting the view relied on by the appellants, but later contrasted it with other Calcutta decisions to reach its conclusion. |
| Moti Lal v. Makund Singh (Allahabad High Court) | Held that an application by a decree-holder to be put in possession is an application to take some step-in-aid of execution. | The Court noted that this decision was followed by some Calcutta judgments but also observed that it has been reversed by the Full Bench of the Allahabad High Court in Bhagwati v. Banwari Lal. |
| Bhagwati v. Banwari Lal | Full Bench decision of the Allahabad High Court reversing Moti Lal and cases based on it. | The Court regarded the Full Bench reversal as important authority that overruled the earlier Allahabad view and used it when assessing conflicting precedents. |
| Prem Krishna Dhur v. Juramoni Chowkidar | Followed Sariatoolla; reasoned that an order under section 319 being judicial made the originating application a step-in-aid. | The Court found the reasoning difficult to appreciate and treated the decision as one of the authorities favouring the appellants' position, but not conclusive in light of other Calcutta decisions. |
| Annoda Prosanna Sen v. Somoruddi Mridha | Contained conflicting judicial views: Newbould, J. felt bound and held the application to be step-in-aid; Cumming, J. disagreed. | The Court recorded the split view and considered it among the decisions supporting the appellants' contention, but ultimately found other authorities persuasive to the contrary. |
| Sadashiva v. Narayan Vithal Mawal and Lakshmanan Chettiar v. Kannammal | Bombay and Madras courts had taken a similar view (i.e., supporting the decree-holder's position that possession applications are steps-in-aid). | The Court acknowledged that similar views prevailed in those jurisdictions but did not treat them as determinative for the present decision. |
| Kattayat Pathumayi v. Raman Menon and Sandhu Taraganar v. Hussain Sahib | Noted that eminent judges in Madras thought that if the matter were res integra they might decide against treating possession applications as steps-in-aid. | The Court recorded these observations as illustrating judicial doubt in some quarters, but relied principally on Calcutta Full Bench and related authorities. |
| Annanda Mohan Roy v. Hara Sundari | Held that neither an application to receive poundage fee nor an application to set off purchase money against a decree is an application to take some step-in-aid of execution; explained that when purchase money is paid into Court the sale completes execution as against that property. | The Court used this decision to question the logic of treating an application for possession as a step-in-aid and to support the view that execution is complete with sale and payment into Court. |
| Bhimal Das v. Mussammat Ganesha Kuer | Held that no appeal lies from an order refusing a decree-holder's application to be put in possession under section 318; treated the matter as not falling under section 244 and on view that execution ended with sale. | The Court regarded this decision as denying the validity of the argument that possession applications are steps-in-aid and treated it (and subsequent followings) as weighty authority against the appellants. |
| Muhammad Mosraf v. Habil Mia | Followed Bhimal Das v. Mussammat Ganesha Kuer. | The Court noted that this decision followed Bhimal Das, reinforcing the line of Calcutta authority that does not treat possession applications as steps-in-aid. |
| Haji Abdul Gani v. Raja Ram | Full Bench decision of the Calcutta High Court accepting the view that execution is at an end with the sale of the property (and related views opposing the step-in-aid characterization for possession applications). | The Court treated this Full Bench decision as binding on it and applied the principle that execution ends with the sale, adopting this position for the present case. |
| Hem Chandra Choudhury v. Brojo Sundari Debee; Fazal Imam v. Matta Singh; Gunga Prashad Bhoomick v. Debi Sundari Debea | Calcutta High Court decisions holding that an application by a decree-holder (who is not the auction-purchaser) to obtain payment of purchase money is not an application to take some step-in-aid of execution. | The Court cited these decisions to support the general proposition that requests relating to post-sale matters do not necessarily amount to steps-in-aid of execution and to reject the analogy advanced by the appellants. |
Court's Reasoning and Analysis
The Court proceeded by addressing, in turn, the two earlier applications relied on by the appellants as saving limitation and then the broader principle of when execution is complete.
1. Application of 25 March 1918 (confirmation of sale): The Court examined authorities. Although Gobind Pershad v. Runglal held confirmation to be a step-in-aid, the Court observed that earlier and later Calcutta decisions (notably Panchanan Chowdkury v. Nrisingha Parshad Roy and Umesh Chandra Dass v. Shib Narain Mandai) held the opposite and that Gobind Pershad was not followed in the Calcutta High Court. Umesh Chandra Dass emphasized that confirmation applications were often by auction-purchasers rather than decree-holders and that confirmation requires no formal application. The Court therefore held that the 25 March 1918 application did not save limitation.
2. Application of 8 July 1918 (application for delivery of possession): The Court acknowledged that several Calcutta decisions (e.g., Sariatoolla Molla and cases following it) supported the appellants' view that an application by a decree-holder to be put in possession is a step-in-aid of execution. The Court also noted parallel views in Bombay and Madras and earlier Allahabad authority (Moti Lal), but recorded that the Allahabad Full Bench in Bhagwati v. Banwari Lal reversed the earlier Allahabad view.
3. Conflicting Calcutta authorities and underlying principle: The Court weighed other Calcutta decisions (Annanda Mohan Roy, Bhimal Das, Muhammad Mosraf) that rejected the characterization of certain post-sale applications as steps-in-aid. The Court found the reasoning in those authorities persuasive, in particular the point that once purchase money is paid into Court and the sale is completed, nothing more remains to be done in respect of execution as against the sold property. The Court also relied on Bhimal Das (and its followings) and the Full Bench decision in Haji Abdul Gani v. Raja Ram, which it described as binding.
4. Specific policy/analytical observation: The Court considered and rejected the appellants' analogy that a decree-holder who becomes purchaser and thus receives no money should be treated differently from a decree-holder who is not purchaser and seeks payment of purchase money. The Court applied the test: if inability to obtain possession would reopen execution and permit further execution for the money represented by the property, there might be force in the appellants' view; but the Court stated it is well established that inability to obtain possession does not entitle the decree-holder purchaser to take out further execution for that portion. From this the Court concluded that execution comes to an end with the sale and that obtaining possession is immaterial for the decree's satisfaction.
5. Conclusion of reasoning: Having found the Calcutta Full Bench authority (Haji Abdul Gani v. Raja Ram) binding and persuaded by the line of decisions denying that possession or related post-sale applications constitute steps-in-aid, the Court concluded that the earlier applications did not save limitation and thus the 29 March 1921 application was barred.
Holding and Implications
HOLDING: The appeal is dismissed. The Court concluded that the earlier applications relied upon by the appellants (including the 25 March 1918 confirmation application and the 8 July 1918 application for delivery of possession) did not constitute applications to take some step-in-aid of execution that would save the later application from being barred by limitation.
Direct effect on the parties: The appeal was dismissed with costs, leaving the lower Court's conclusion that the application of 29 March 1921 is barred by limitation intact.
Implications for law: The Court applied and relied upon existing Calcutta High Court authorities (including the Full Bench decision in Haji Abdul Gani v. Raja Ram) to hold that execution is completed with the sale of the property and that post-sale applications (such as for possession by a decree-holder purchaser) do not necessarily amount to steps-in-aid of execution that would extend limitation. The opinion rests on reconciling conflicting authorities and does not purport to lay down a new principle beyond the application of existing binding decisions.
Disposition in the Court below was affirmed. The opinion contains a detailed survey of conflicting authorities and adopts the view that execution ends with sale; no new precedent was stated to be created by this judgment.
Das, J.:— The question involved in this appeal is whether the execution of the decree is barred by limitation. On the 20th July, 1917, the plaintiffs sought to execute the decree which they had obtained on the 29th March, 1917. On the 21st February, 1918, certain properties belonging to the judgment-debtors were sold and the decree-holders themselves purchased those properties. The sale proceeds not being sufficient to satisfy the decree, the decree-holders presented another application for execution of the decree on the 29th March, 1921. The lower Court has come to the conclusion that the application of the 29th March, 1921, is barred by limitation.
The application of the 29th March, 1921, is apparently barred by limitation; but it is pointed out on behalf of the appellants that there was an application on their behalf on the 25th March, 1918, for confirmation of the sale which as I have said took place on the 21st February, 1918, and that there was a further application on their behalf on the 8th July, 1918, for delivery of possession. It is urged on behalf of the appellants that each of these applications was an application to take some step-in-aid of execution and that in this view the application of the 29th March, 1921, is not barred by limitation. So far as the application of the 25th March, 1918, is concerned, I am clearly of opinion that application does not save, limitation. No doubt it was held in the case of Gobind Pershad v. Runglal that an application for confirmation of sale is an application to take some step-in-aid of execution; but, so far as I am aware, that case has never been followed in the Calcutta High Court. The case of Gobind Pershad v. Runglal was decided on the 22nd of June 1893; but on the 7th April, 1893, it was held by Ameer Ali, J., in the case of Panchanan Chowdkury v. Nrisingha Parshad Roy that an application for confirmation of sale is not an application to take some step-in-aid of execution. The case of Panchanan Chowdhury v. Nrisingha Parshad Roy was not brought to the notice of the learned Judges who heard the case of Gobind Pershad v. Runglal. In the later case of Umesh Chandra Dass v. Shib Narain Mandai it was held by the Calcutta High Court that such an application is not an application to take some step-in-aid of execution. It was pointed out in the last mentioned case that such an application, not being made by a decree-holder as such but by an auction-purchaser can in no sense be regarded as an application by the decree-holder. It was also pointed out that no application is as a matter of fact required for the purpose of having the sale confirmed. The decisions of the Calcutta High Court do not support the contention of Mr. Sen and I hold that the application of the 25th March, 1918, was not an application to make some step-in-aid of execution.
I now come to the application of the 8th July, 1918, which was an application for delivery of possession. There is some difficulty in deciding this point, not because there is any difficulty inherent in the point itself, but because the cases actually deciding this particular point are all in favour of Mr. Sen's contention. So far as I know the point has been discussed by the Calcutta High Court on three different occasions and on each occasion the Calcutta High Court came to the conclusion that an application by a decree-holder to be put in possession is an application to take some step-in-aid of execution. Sariatoolla Molla v. Raj Kumar Roy is the earlier of these cases. The learned Judges thought that such an application was an application to make the execution final and complete and they followed the decision of the Allahabad High Court, in the case of Moti Lal v. Makund Singh. It is useful to point out that the decision of the Allahabad High Court in Moti Lal v. Makund Singh has been reversed by the Full Bench of the Allahabad High Court in the case of Bhagwati v. Banwari Lal. The case of Sariatoolla Molla v. Raj Kumar Roy was followed by Holm wood and Sharfuddin, JJ. in Prem Krishna Dhur v. Juramoni Chowkidar. It is somewhat difficult to appreciate the reasonings of the learned Judges deciding the case of Prem, Krishna Dhur v. Juramoni Chowkidar; but they appear to have thought that the order under section 319 of the Civil Procedure Code being a judicial order the application which resulted in that order must be considered to be an application to take some step-in-aid of execution. The point was again debated in Annoda Prosanna Sen v. Somoruddi Mridha. Newbould, J. thought that he was conclusively bound by the decisions of the Court and he accordingly came to the conclusion that an application by a decree-holder to be put in possession is an application to take some step-in-aid of execution. Cumming, J. arrived at the opposite conclusion, and he thought that such an application could not be regarded as an application to take some step-in-aid of execution. The decisions of the Calcutta High Court undoubtedly support the view that an application by a decree-holder to be put in possession is an application to take some step-in-aid of execution. In Bombay and in Madras a similar view has prevailed [see Sadashiva v. Narayan Vithal Mawal and Lakshmanan Chettiar v. Kannammal], although eminent Judges in Madras have thought that if the matter were res integra they might have decided the point adversely to the decree-holder [see Kattayat Pathumayi v. Raman Menon and Sandhu Taraganar v. Hussain Sahib]. In Allahabad the view at one time found favour that an application by a decree-holder to be put in possession of the property purchased by him is an application to take some step-in-aid of execution [see Moti Lal v. Makund Singh], but the Full Bench decision of that Court in the case of Bhagwati v. Banwari Lal has undoubtedly overruled the case of Moti Lal v. Makund Singh and other cases based on that case. If I had to decide the case merely on the authorities which were placed before us we would be obliged to hold that the application of the 8th July, 1918, was an application by the decree-holder to take some step-in-aid of execution and that it consequently saved limitation.
But it seems to me that there are numerous decisions of the Calcutta High Court which cannot be reconciled with the three decisions to which I have referred and upon which Mr. Sen relied. It was held in the case of Annanda Mohan Roy v. Hara Sundari that neither an application by a decree-holder to receive poundage fee from him in respect of the judgment-debtor's property purchased by himself, nor an application by him to be allowed to set off the purchase money against the decree instead of paying it into Court, is an application to take some step-in-aid of execution. It may be pointed out that a poundage fee is a fee calculated upon the price for which the property sells and is payable by the decree-holder after the sale and before taking delivery of the property. Now if an application by the decree-holder asking the Court to receive a poundage fee is not regarded as an application to take some step-in-aid of execution, it is difficult to understand how an application to be put in possession of the property purchased by him can be regarded as an application to take some step-in-aid of execution. It was pointed out in that case by the late Chief Justice of the Calcutta High Court that when the sale of the property attached in execution has been completed and the purchase money has been paid into Court, nothing more remains to be done in respect of the execution of the decree as against that property. In the case of Bhimal Das v. Mussammat Ganesha Kuer, it was held that no appeal lies from an order refusing the application of the decree-holder to be put in possession under section 318, the question not falling under section 244. Now in order to establish that an application by the decree-holder to be put in possession of the property purchased by him is an application to take some step-in-aid of execution, it must be established first, that the application is in fact by a decree-holder; and secondly, that the application relates to the execution of the decree. If these facts are established then the question involved in the decision of such an application would undoubtedly be a question between the parties to the suit and relating to the execution of the decree and would consequently fall under section 47 of the Code of Civil Procedure. The decision in Bhimal Das v. Mussammat Ganesha Kuer accordingly denies the validity of the arguments upon which we are invited to hold that an application by a decree-holder to be put in possession of the property is an application to take some step-in-aid of execution. Indeed if the arguments of Mr. Sen be right then the case of Bhimal Das v. Mussammat Ganesha Kuer was wrongly decided, and it may be pointed out that case was decided on the view that the execution was at an end with the sale of the property, and that no question relating to execution was involved in an application to be put in possession of the purchased property by the decree-holder. The case of Bhimal Das v. Mussammat Ganesha Kuer was followed by Brett and Mookherji, JJ., in Muhammad Mosraf v. Habil Mia and this is the view which has been accepted by the Full Bench of this Court in Haji Abdul Gani v. Raja Ram. No doubt it was not decided by this Court in the case cited that an application by a decree-holder to be put in possession of the purchased property is not an application to take some step-in-aid of execution; but it seems to me that such a decision is involved in a decision that no appeal lies from an order under rule 95 of Order XXI of the Code of Civil Procedure.
It is necessary to deal with an argument which was advanced to us by Mr. Sen on behalf of the decree-holder. He argued that a proceeding in execution cannot be said to be completed in a case of sale until he has obtained the proceeds and the benefit of the sale held in execution of the decree; and just as an application by a decree-holder who is not the auction-purchaser to obtain payment of purchase money is an application for taking some step-in-aid of execution, so also an application to be put in possession of that which represents the money where the decree-holder himself purchases and consequently no money passes ought to be regarded as an application to take some step-in-aid of execution. Now the point to be decided is whether an application by a decree-holder, when he is not the auction-purchaser, to obtain payment of purchase money is an application for taking some step-in-aid of execution. So far as the Calcutta High Court is concerned it has invariably held that such an application is not an application to take some step-in-aid of execution [see Hem Chandra Choudhury v. Brojo Sundari Debee, Fazal Imam v. Matta Singh and Gunga Prashad Bhoomick v. Debi Sundari Debea]. 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 is not complete until he obtains possession of the property; but it is well established that though the decree-holder purchaser is unable to obtain possession that would not entitle him to take out further execution for that portion of his purchase money which is represented by the property purchased by him. It seems to me that execution comes to an end with the sale of the property and that whether or not the auction-purchaser obtains possession of the property sold is wholly immaterial for the purpose of the decree and it does not in any way affect it. Mr. Justice Banerji pointed out in the case of Bhagwati v. Banwari Lal that if the decree-holder purchases the property but does not obtain possession that circumstance would not entitle him to take out execution of the decree which has already been satisfied. It seems to me that the arguments advanced before us by Mr. Baikuntha Nath Mitter, on behalf of the judgment-debtors, must prevail. The argument is founded on principle and is covered by the decision of this Court in Haji Abdul Gani v. Raja Ram which is binding on us.
I would dismiss this appeal with costs.
Adami, J.:— I agree.
Appeal dismissed.
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