Ajudhia Prasad (Judgment-Debtor) v. U.P Government (Decree-Holder).

Bind Basni Prasad, J.:— This is a second appeal from an order of the Second Civil Judge, Muzaffarnagar, dismissing an appeal against the order of the Munsif of Muzaffarnagar passed in an execution proceeding. The facts are as follows:

Ajudhia Prasad appellant brought a suit for the recovery of Rs. 600 against Munshi Abdul Hakim, Tahsildar, as damages for an alleged wrongful arrest. The suit was dismissed by the trial court on the 17th December, 1936, and the operative order of the trial court was as follows:

“The plaintiff's suit for damages is dismissed with costs. The defendant shall get from the plaintiff Rs. 200 as compensatory cost, Rs. 41 the unpaid costs of adjournment and the usual costs for the suit. The entire costs with the exception of Rs. 20 out of the costs of adjournment (which shall be paid to the Government Pleader) shall go to the Government.”

There was an appeal against that order and it was dismissed on the 31st May, 1938. Then there was a revision to this Court. During the pendency of the revision the defendant died on the 4th June, 1939. There was no substitution of heirs in place of the defendant and on the 22nd December, 1939, orders were passed by this Court that the revision had abated. On the 4th September, 1942, an application for the execution of the decree was made by the U.P Government. The plaintiff judgment-debtor then filed an application raising the following two points:

(1) That the application for execution was time-barred and

(2) That the U.P Government had no right to apply for execution.

Both these contentions have been repelled by the two courts below, and the judgment-debtor, therefore, comes in appeal to this Court.

I take up first the question of limitation. The argument on behalf of the appellant is that there was an automatic abatement of the proceedings on the death of the defendant on the 4th June, 1939 and, as the application for execution was made more than three years from that date, it is time-barred. No doubt as the law is, there was an automatic abatement on the 4th June, 1939, but where there has been an order of the court declaring an appeal to have abated, the period of limitation under article 182 of the Limitation Act should be reckoned from that date. In support of this view there is a decision of this Court in Murli Dhar v. Mahabir Singh(1). All the relevant authorities on the point have been discussed in it. Learned counsel for the appellant contends on the basis of the Privy Council rulings, Batuk Nath v. Munni Dei(2) and Abdul Majid v. Jawahir Lal(3) that the order of the court declaring the appeal to have abated was a ministerial order and not a judicial one. These two rulings have been considered in Murli Dhar v. Mahabir Singh and it was held that an order declaring an appeal to have abated is in effect an affirmation of the decree of the court below and amounts to a final order within the meaning of article 182 of the Limitation Act and therefore limitation begins to run against the decree holder from the date of such order and not from the date of the decree under appeal. Moreover neither in Batuk Nath v. Munni Dei nor in Abdul Majid v. Jawahir Lal was there any question of an order of abatement. The order with which their Lordships of the Judicial Committee were concerned in those two cases was an order of dismissal of appeals for want of prosecution. I cannot extend the principle laid down in those two cases to the facts of the present case which are quite different.

It has been argued by learned counsel for the appellant that according to article 182 limitation begins to run from the date of the decree passed by the court of first instance or by the court of appeal but not by the court of revision. It is unnecessary to dilate upon this point. In Nagendra Nath De v. Suresh Chandra De their Lordships of the Judicial Committee observed as follows:

“There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate court, asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent.”

In the Full Bench case of Chidambara Nadar v. Rama Nadar and in Krishnamachari v. Chengalaraya Naidu it was held that the word “appeal” occurring in article 182 includes revision. The word “appeal” should not be interpreted in the narrower sense of the term as used in the Code of Civil Procedure.

In view of these authorities it is clear that the limitation for the application for the execution of a decree should be reckoned in the present case from the 22nd December, 1939, when the formal order for the abatement was passed by this Court. The application dated the 4th September, 1942, was thus in time. I agree with the view taken by the two courts below.

The second point is whether the U.P Government has a right to execute the decree. Order XXVII, rule 8 of the Code of Civil Procedure lays down the procedure in suits against public officers. sub-rule (1) of rule 8 provides that “where the Government undertakes the defence of a suit against a public officer, the Government Pleader, upon being furnished with authority to appear and answer the plaint, shall apply to the court, and upon such application the court shall cause a note of his authority to be entered in the register of civil suits”.

Sub-rule (2) provides that “where no application under sub-rule (1) is made by the Government Pleader on or before the date fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties.”

There is rule 9 which has been added by this Court and which runs as follows:

“In every case in which the Government Pleader appears for the Government as a party on its own account, or for the Government as undertaking, under the provisions of rule 8(1), the defence of a suit against an officer of the Government, he shall, in lieu of a vakalatnama, file a memorandum on unstamped paper signed by him and stating on whose behalf he appears. Such memorandurr shall, as nearly as may be, in the term of the following form:—

Title of the suit, etc.

I, A.B Government Pleader, appear on behalf of the Secretary of State for India in Council or the Government of the United Provinces, or as the case may be, respondent, in the suit or, on behalf of the Government which under order XXVII, rule 8(1) of Act V of 1908, has undertaken the defence of the suit….”

It is obvious from the provisions of rules 8 and 9 of order XXVII that there is a statutory recognition of the undertaking of the defence of a public officer by the Government. In other words, it is not a private matter between an employer and an employee that the former undertakes the defence of the latter, but it is in pursuance of a provision of law that the Government may undertake the defence of its employee. When the Government in pursuance of this law incurs costs in defending a public officer it has, in a sense, an interest in the suit and by implication it is entitled to be reimbursed of the costs incurred in the defence, if the defence prevails. It was obviously for these considerations that the trial court in passing the decree ordered that the costs incurred in the defence of the suit shall be payable to the Government. It cannot be denied that under the decree the Government has been given a right to realise the decreed costs. When there is a right there must be a remedy. The argument on behalf of the appellant that the right conferred by the decree is without a remedy is untenable.

Learned counsel for the appellant refers “to the definition of the terms “decree” and “decree-holder” as contained in sub-sections (2) and (3) of section 2 of the Code of Civil Procedure. He contends that, as the U.P Government is no party on the record, it is, not entitled to execute the decree and in this connection he relies upon the fact that a decree can be only between the parties to a suit. It is unnecessary to discuss the definition of the term “decree” because whether or not the order relating to the payment of the costs to the U.P Government passed by the trial court was a decree, the U.P Government is certainly a decree-holder. The term “decree-holder” has been defined to mean: “any person in whose favour a decree has been passed or an order capable of execution has been made.” Now it is clear from this that a person in whose favour an order capable of execution has been made is also a decree-holder. It is also evident from this definition that a decree-holder need not be a party to the suit. He may be “any person”. The term “order” has not been defined with reference to the parties to the proceeding. Its definition as contained in sub-section (14) of section 2 of the Code of Civil Procedure is as follows: “Order means the formal expression of any decision of a civil court which is not a decree”. Assuming, therefore, that portion of the operative order of the trial court which provided for the payment of the costs to the U.P Government was not a decree, it was certainly an “order” and was no doubt capable of execution. The U.P Government is, therefore, a decree-holder as defined in sub-section (3) of section 2 of the Code of Civil Procedure. In this connection I may refer to the case of Vythilinga Pandarasannadhi v. Board of Control, Thiagarajaswami Devasthanam an which it was held that a decree-holder need not be a party to the decree. It is enough if the decree confers some right enforceable under the decree upon some person mentioned in it. The U.P Government, having undertaken the defence in pursuance of rule 8 of order XXVII for the defendant, should by implication be deemed to have been a party to the proceedings. It was given a right to realise the costs incurred by it from the plaintiff. I cannot go behind the decree in the execution proceedings. The defendant himself being dead, the U.P Government is, in my opinion, in justice, entitled to realise the costs decreed in its favour. I agree with the view taken by the two courts below.

I would, therefore, dismiss the appeal.

Verma, J.:— I agree with my learned brother in holding that the appeal is without force and should be dismissed.

By the Court— The appeal is dismissed with costs.