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Mahanth Krishna Dayal Gir v. Musst. Sakina Bibi And Others
Factual and Procedural Background
This is an appeal from an order of the Subordinate Judge of Gaya dismissing the appellant's application for execution of a decree. A decree nisi for the sale of mortgaged property was passed on 11 August 1896 and made absolute on 6 February 1898. Several execution applications were thereafter made:
- Application made 16 February 1904 — dismissed by the Subordinate Judge on 23 January 1905, but allowed by the High Court on appeal on 28 June 1906.
- Application made 4 September 1907 — disallowed by the Subordinate Judge, but allowed by the High Court on appeal on 29 June 1910.
- Application made 28 July 1911 — struck off on 29 June 1912 after the decree-holder recovered about Rs. 67,000.
- Application made 6 September 1912 — dismissed for want of prosecution on 5 December 1912.
- Present application made 18 July 1913 — dismissed by the Subordinate Judge on the ground that it was made more than 12 years from the date of the decree and therefore barred by section 48 of the Code of Civil Procedure, 1908.
The appeal challenges the Subordinate Judge's dismissal of the July 1913 execution application as time-barred.
Legal Issues Presented
- Whether section 48 of the Code of Civil Procedure, 1908, applies to an application for execution of a decree for sale of mortgaged property where the decree was passed while the Code of 1882 was in force.
- Whether the decree-holder was prevented by fraud or force on the part of the judgment-debtor, within the meaning of sub-section (2) of section 48, from making the execution application.
- Whether an acknowledgment of liability (allegedly in March 1902) within the meaning of section 19 of the Limitation Act operated to give the decree-holder a fresh period (specifically, whether it provided a fresh period of 12 years) to apply for execution.
- Whether the present application of 18 July 1913 is properly to be treated as a continuation of the application made on 28 July 1911.
Arguments of the Parties
Appellant's Arguments
- The appellant relied on section 6 of the General Clauses Act, 1897, contending that repeal of the earlier Code (Act of 1882) could not affect rights already acquired under it; consequently section 48 of the Code of 1908 should not apply to his execution application because the right to execute the decree was said to have been acquired under the Code of 1882.
- The appellant argued that he was prevented by fraud or force on the part of the judgment-debtors from executing the decree, invoking sub-section (2) of section 48 of the Code of Civil Procedure.
- It was contended that a petition dated 17 March 1902 constituted an acknowledgment of liability within section 19 of the Limitation Act and thereby yielded a fresh period — the appellant asserted a fresh period of 12 years from that acknowledgment.
- The appellant further contended that the present application of 18 July 1913 should be treated as a continuation of the application presented on 28 July 1911.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bisseswar Sonamut v. Jasoda Lal | Held that section 48 of the Code of 1908 governs applications made after that Code's passing even where the decree was passed while the Code of 1882 was in force. | The opinion cites this Calcutta High Court decision as supporting the view that section 48 applies to the present application; the court adopts this principle in concluding the application is time-barred. |
| Jai Mangalbati Misrain v. Badan Chand Das | Same principle as above — section 48 of the Code of 1908 governs execution applications made after that Code came into force even if the decree was passed under the 1882 Code. | Used by the court as supporting authority for applying section 48 to the present application. |
| Manjhoori Bibi v. Akhel Mahmud | Calcutta High Court judgments (Mookerjee, Carnduff and N.R. Chatterjea, JJ.) supportive of the proposition that procedural provisions (limitation/section 48) are not vested substantive rights preserved by section 6 of the General Clauses Act. | The court cites these judgments as strongly supporting the conclusion that the decree-holder had no vested procedural right under the old Code and that section 48 therefore applied. |
| Kaunsilla v. Ishri Singh | Contrary view (Knox and Karamat Hussain, JJ.) that the right to enforce execution of such a decree was a substantive right acquired under the Code of 1882 and not affected by the Code of 1908. | The court notes this contrary authority but rejects its conclusion, siding with the Calcutta decisions that treat limitation provisions as part of adjective/procedural law and thus applicable when the new Code is in force. |
Court's Reasoning and Analysis
The court's analysis proceeds along several lines and is expressed by two judges whose opinions concur in result.
Primary reasoning (Chamier, C.J.)
- The decisive question is whether section 48 of the Civil Procedure Code, 1908, applies to the execution application made in July 1913. The appellant relied on section 6 of the General Clauses Act, 1897, to argue that repeal of the Code of 1882 could not affect any right acquired under it.
- The Chief Justice accepted the line of decisions of the Calcutta High Court (citing Bisseswar Sonamut v. Jasoda Lal and Jai Mangalbati Misrain v. Badan Chand Das and the judgments in Manjhoori Bibi v. Akhel Mahmud) which hold that a decree-holder does not acquire a vested right in the procedural machinery of the old Code. The right to sell mortgaged property is created by the mortgage-debt and is merged in the decree; the procedure for enforcement is governed by the Civil Procedure Code and is not a substantive vested right protected by section 6 of the General Clauses Act.
- On that basis the Chief Justice concluded prima facie that the present application should be dismissed under section 48 of the 1908 Code.
- The court examined the appellant's contention under sub-section (2) of section 48 (that execution was prevented by fraud or force). The court found no substance in that contention: the objections pursued in earlier applications were accepted by the Subordinate Judge and raised fair questions, so they could not be treated as fraudulent acts preventing prosecution within the meaning of the section.
- Regarding the alleged acknowledgment of liability in March 1902 under section 19 of the Limitation Act, the Chief Justice assumed (without deciding) that the petition might amount to an acknowledgment. Even so, he reasoned that such an acknowledgment would give a fresh period of three years (consistent with section 19) and could not be construed to give a fresh period of 12 years. He further observed that construing section 19 to yield a 12-year fresh period would render many provisions of the third column of Article 182 of the Limitation Act useless; hence the words “a fresh period of limitation” in section 19 do not refer to the 12-year term of section 48 CPC.
- Finally, the Chief Justice rejected the contention that the July 1913 application was a continuation of the July 1911 application. He relied on the fact that the present application prayed for relief materially different from the 1911 application and was directed against property not touched by the 1911 application. Therefore it could not be treated as a mere continuation.
- For these reasons he concluded the Subordinate Judge was right to hold the July 1913 application barred by section 48 of the Code of Civil Procedure, 1908.
Concurring reasoning (Jwala Prasad, J.)
- Jwala Prasad, J. framed the issue plainly: whether execution was barred by limitation under section 48 given the dates involved (decree absolute 6 February 1898; present application 18 July 1913).
- He emphasized the distinction between substantive rights and procedural rules: the right to sell mortgaged property is rooted in the Transfer of Property Act and the mortgage-debt, while the Code of Civil Procedure prescribes procedural rules for enforcement. Hence repeal or change of procedural law did not destroy any substantive right acquired by the decree-holder under the earlier law.
- He endorsed the proposition that the law of limitation is a branch of adjective (procedural) law that governs proceedings from the date of its enactment. Therefore the application for execution made after the 1908 Code came into force is governed by section 48 of that Code.
- He agreed with the Chief Justice's rejection of the fraud/force contention, the acknowledgment argument under section 19 of the Limitation Act, and the claim that the 1913 application was a continuation of the earlier proceeding.
Holding and Implications
Holding: The appeal is dismissed. The Court held that the application for execution made on 18 July 1913 was barred by section 48 of the Code of Civil Procedure, 1908. The hearing fee was assessed at three gold mohurs and the appeal was dismissed with costs.
Implications: The direct effect of the decision is that the specific execution application before the court is time-barred under section 48, C.P.C., and the appellant's application for execution is refused. The opinion confines itself to the application before the Court and applies established authorities; it does not purport to lay down any broader novel principle beyond the application of section 48 to the facts of this case.
Chamier, C.J:— This is an appeal against an order of the Subordinate Judge of Gaya dismissing an application made by the Appellant for execution of a decree. The facts are as follows:—
A decree nisi was passed for the sale of mortgaged property on August 11th, 1896, and was made absolute on February 6th, 1898. Various applications were made for execution of the decree with which we are not now concerned. The first application which it is necessary to notice was made on February 16th, 1904. It was dismissed by the Subordinate Judge on January 23rd, 1905, but was allowed by the High Court on appeal on June 28th, 1906. The next application was made on September 4th, 1907, and was also disallowed by the Subordinate Judge, but was allowed by the High Court on appeal on June 29th, 1910. The next application was made on July 28th, 1911, and was struck off on June 29th, 1912, after the decree-holder had recovered a sum of about Rs. 67,000. The next application for execution was made on September 6th, 1912, and was dismissed for want of prosecution on December 5th, 1912. Finally the present application for execution was made on July 18th, 1913. The Subordinate Judge held that it must be dismissed under sec. 48 of the Code of Civil Procedure as it was made more than 12 years from the date of the decree sought to be executed.
The first question for decision in this appeal is whether sec. 48 of the Code of Civil Procedure applies to the application for execution. The Appellant relies upon sec. 6 of the General Clauses Act, 1897, which provides that the repeal of an enactment shall not affect any right acquired under the enactment repealed, or affect any legal proceeding or remedy in respect of any such right. He contends that if sec. 48 of the present Code of Civil Procedure is held to apply to the application for execution now in question, the result will be that the right which he had acquired under the Code of 1882 to execute his decree will be taken away. The point was considered in two cases by the Calcutta High Court and in one case by the Allahabad High Court. In both the Calcutta cases it was held that sec. 48 governed an application made after the passing of the Code of Civil Procedure, 1908, for execution of a decree for sale passed at a time when the Code of Civil Procedure, 1882, was in force. See Bisseswar Sonamut v. Jasoda Lal, and Jai Mangalbati Misrain v. Badan Chand Das(2). The view taken in these two cases is strongly supported by the judgments of Mookerjee, Carnduff and N.R Chatterjea, JJ., in the case of Manjhoori Bibi v. Akhel Mahmud. A contrary view was taken by Knox and Karamat Hussain, JJ., in Kaunsilla v. Ishri Singh. Those learned Judges were of opinion that a right to enforce execution of such a decree was a substantive right acquired under the Code of 1882 and was not affected by the passing of the Code of 1908. The Calcutta High Court on the other hand held that in such a case it could not be said that the decree-holder had acquired a right under the Code of Civil Procedure, 1882, within the meaning of sec. 6 of the General Clauses Act, 1897. They held that the decree-holder was entitled to execute the decree in accordance with the provisions of the Code of 1882 as long as it was in force, but had no vested right in the procedure prescribed by that Code, that the right enjoyed by the decree-holder had been created by the mortgage-debt and had merged in the decree passed in the suit, and therefore could not be said to have been acquired under the Civil Procedure Code of 1882. The view taken by the Calcutta High Court is supported by a long string of English decisions, some of which are referred to by Carnduff, J., in one of the cases cited above. In my opinion the application for execution now in question should primâ facie be dismissed with reference to sec. 48 of the present Code of Civil Procedure. It is argued, however, that the decree-holder was, within the meaning of sub-sec. 2 of that section, prevented by fraud or force on the part of the judgment-debtor from executing the decree. There appears to be no force whatever in this contention. The objections put forward against the applications for execution presented on February 16th, 1904, and September 5th, 1907, were allowed in the first instance by the Subordinate Judge and were disallowed by the High Court on appeal. But it is impossible to hold that the objections put forward on those occasions were fraudulent. They were, as already stated, accepted by the Subordinate Judge and they raised fair questions for decision. Next it is contended that there was in March 1902 an acknowledgment of liability within the meaning of sec. 19 of the Limitation Act. I will assume, though it is by no means clear, that the petition relied upon did amount to an acknowledgment within the meaning of the Limitation Act. An acknowledgment made in March 1902 gave the decree-holder a fresh period of three years within which to apply for further execution of the decree. The contention advanced before us was that the acknowledgment gave the decree-holder a fresh period of 12 years, but this contention overlooks the fact that at the time when the so-called acknowledgment was made the Code of Civil Procedure of 1908 had not been passed and sec. 230 of the Code of 1882 did not, according to the decisions of the Calcutta High Court, apply at all to decrees, for the sale of mortgaged property. There seems to be no ground whatever for the contention that the acknowledgment gave the decree-holder a further period of 12 years within which to apply for execution of his decree. Sec. 48 of the Code of Civil Procedure, 1908, applies to decrees for sale, but the passing of that Code cannot be held to give retrospective operation to the so-called acknowledgment of March 1902 in such a way as to give the decree-holder a fresh period of 12 years within which to apply for further execution. Nor in my opinion would any such acknowledgment even if made after the passing of the Code of 1908, give a decree-holder a fresh period of 12 years. To construe sec. 19 in the way suggested by the learned Counsel for the decree-holder Appellant, would render many of the provisions in the 3rd column of Article 182 of the first schedule to the Limitation Act useless in any case in which an acknowledgment of liability had been given. There can, I think, be no doubt that the words “a fresh period of limitation” in sec. 19 of the Limitation Act, do not refer to the term of 12 years prescribed by sec. 48 of the Code of Civil Procedure. Lastly it was contended that the present application for execution was one made in continuation of the application presented on July 28th, 1911. This contention also must be rejected. Upon the application of July 28th, 1911, a large amount of property was put up for sale. The present application for execution contains a prayer that it may be treated as being in continuation of the application of 1911, but it asks for relief altogether different from the relief claimed in 1911 and is directed against property which is not touched by the application of 1911. In my opinion the present application is not one in continuation of the application of 1911. The result is that in my opinion the Court below was right in holding that the present application for execution is barred by sec. 48 of the Code of Civil Procedure. I would dismiss this appeal with costs and would assess the hearing fee at three gold mohurs.
Jwala Prasad, J.:— This is an appeal in a proceeding for the execution of a decree. The question is whether the execution of a decree is barred by limitation. The decree for the sale of the mortgaged property was passed on August 11th, 1896, and was made absolute on February 6th, 1898. The present application for execution was made on July 18th, 1913. The Subordinate Judge dismissed the application holding that it was barred under sec. 48 of the Civil Procedure Code, Act V of 1908, inasmuch as it was made more than 12 years from the date of the decree sought to be executed.
The contention on behalf of the Appellant is that sec. 48 of the present Code does not apply to the application for execution as the decree in question was passed when the old Act of 1882 was in force, sec. 230 of which did not apply to mortgage decrees and hence there was no limit of time for the execution of the decree. The contention is based on sec. 6 of the General Clauses Act, 1897, which provides that the repeal of an enactment shall not affect any right acquired under the enactment repealed.
The contention does not appear to be sound. The decree-holder acquired a right to sell the mortgaged, property under the Transfer of Property Act and not under the Code of Civil Procedure, which prescribes rules of procedure for the enforcement of the decree through the aid of the Court. The rule that no order for the execution of a decree shall be made after 12 years from the date of the decree, is a rule of procedure and is a part of the Civil Procedure Code. The decree-holder did not acquire any right under sec. 230 of Act 1882, and hence its repeal by the present Code did not destroy any vested right in him.
The application for execution will therefore be governed by sec. 48 of the Code of 1908 that was in force at the time when the application for the execution was made. This view is supported by a series of decisions of the Calcutta High Court and is based upon the principle that the law of limitation is a branch of the adjective law and governs all proceedings to which it is applicable, from the date of its enactment.
It is further contended that the period occupied in the litigation on account of the objections put forward by the judgment-debtors against the applications for execution presented on 16th February 1904 and 4th September 1907 should be excluded. The objections were partly allowed by the 1st Court, but were disallowed by the High Court on appeal. These objections certainly could not be said to be fraudulent within the meaning of sec. 48, C.P.C
The 3rd contention of the decree-holder is that the judgment-debtors acknowledged their liability in a petition dated 17th March 1902 presented in Court in Execution Case No. 54 of 1901, and hence the decree-holder is entitled to a fresh period of 12 years from the date of the said acknowledgment.
For the reasons given by the learned Chief Justice in his judgment I agree that the contention should be rejected.
The last contention of the decree-holder is that the present application is in continuation of the application made in 1901. It appears from the order dated 29th June 1912, that the execution case was dismissed on part satisfaction on the prayer of the decree-holder. It is impossible to treat the present application as a continuation of that dismissed application.
The result is that I agree with the learned Chief Justice in the order proposed by him and would dismiss the application with costs.
The order of the Court is that the appeal is dismissed. The hearing fee is assessed at 3 gold mohurs.
D.N.S
Appeal dismissed.
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