Vemulapalli Satyanar... v. Vatrapu Kajireddi An...

Sir Lionel Leach, C.J:— The question in this appeal is whether the execution of a decree obtained by the appellants in Original Suit No. 62 of 1932 in the Court of the District Judge of Kistna is barred by the law of limitation. The District Judge has held that it is. The decree was passed against ten of the fifteen defendants, namely, against defendants 1 to 9 and 15. We agree with the District Judge that the decree is barred against defendants 1, 3 to 5, 7 to 9 and 15. Whether it is barred against the second and sixth defendants will depend on the result of a further inquiry which we propose to order the District Judge to make.

The decree was passed on 29th January 1935 for the payment of Rs. 6,181-4-0 with interest and costs. On 27th January 1938 the decree-holders filed a petition asking for the execution of the decree by the arrest of the judgment-debtors. As the application was made two years after the date of the decree, the decree-holders included in their petition a prayer for the issue of notice under the provisions of Order XXI, rule 22, of the Code of Civil Procedure. Unfortunately in the execution petition the suit was described as being Original Suit No. 62 of 1931, whereas the correct number was Original Suit No. 62 of 1932. As the names of the parties did not tally with the names of the parties in Original Suit No. 62 of 1931, the petition was returned to the decree-holders with these remarks:

“Original Suit No. 62 of 1931 quoted in the execution petition is not correct as the names of the parties do not tally. For other particulars.

Decree copy has not been filed.

To state how this is an application in accordance with law when the amount due under the decree on the date of filing of the execution petition was not noted.”

This order was passed on 1st February 1938. The petition for execution was returned to the decree-holders, who re-presented it on 11th February 1938 with a prayer that a week's time might be granted for the filing of a copy of the decree. On 14th February 1938 time was granted until 21st February 1938. The petition was re-presented on 23rd February 1938 with a prayer that a further week's time should be granted. As a petition for the extension of time had not been filed, the District Judge, on 26th February 1938, passed an order formally dismissing the petition for execution. This order was endorsed on the petition itself.

On 24th July 1941 the decree-holders filed another petition for execution, and this petition was returned for the furnishing of further necessary particulars. It was dismissed on 4th September 1941 for default in furnishing the particulars. An application for review of the dismissal order was dismissed on 20th February 1942.

The application which has given rise to this appeal was filed on 14th November 1942. The decree-holders maintained that the petition of 27th January 1938 was in accordance with law and that in any event their prayer for notice under Order XXI, rule 22, was a step in aid of execution, which in itself operated to save Limitation. They also averred that the second and sixth defendants had on 14th November 1939 in proceedings before a Debt Conciliation Board acknowledged their indebtedness under the decree. The District Judge held that the first petition for execution was not in accordance with law and, therefore, could not be relied upon to save limitation. He also rejected the argument based on the prayer for notice under Order XXI, rule 22, on the ground that, as the petition for execution was not in accordance with law, the case did not fulfil the conditions embodied in article 182(5) of the Limitation Act. With regard to the alleged acknowledgment before the Debt Conciliation Board by the second and sixth defendants, the District Judge said that this, if made, was made more than three years after the date of the decree and, therefore, did not help the decree-holders. The appeal challenges the validity of all these findings.

In support of the objection to the decision of the District Judge that the application for execution was not in accordance with law, the learned Advocate for the appellants has referred to an observation of a Judge of the Allahabad High Court, sitting alone, made in Raja Ram Gopal v. Harish Chandra, where he said that the omission to mention the number of the suit or the date of the decree did not by itself render the application for execution defective. We find ourselves unable to agree that the omission to mention the number of the suit is a defect which can be overlooked. In holding that the mistake in the number of the suit was fatal, the District Judge in the present case relied on the judgment of Wadsworth, J. in G.R. Naidu v. Yerramsetti Venkataswami Naidu. There an application for the execution of the decree was returned for rectification of the suit number and the execution petition was not presented within the time allowed. Wadsworth, J. was of the opinion that the petition was not in accordance with law because of the requirements of Order XXI, rule 11, of the Code of Civil Procedure. That rule states that the application “shall” contain certain specified particulars one of which is the number of the suit. Moreover, in his judgment, common sense indicated that an essential feature of an execution petition was that it should be identifiable with the suit under which it was filed. We consider that this is the correct view of the law.

In Govind Prasad v. Pawankumar the Privy Council drew a distinction between rules in Order XXI which are merely permissive and those which are mandatory. The question was later discussed by a Full Bench of this Court in Salvapanthula Seshagiri Rao v. Rebala Subbarami Reddy, and in accordance with the judgment of the Privy Council it was held that rule 14 is merely permissive unlike rules 11, 12 and 13 which are mandatory. These judgments clearly govern this case and, consequently, we hold that the District Judge was right in finding that the petition of 27th January 1938 was not in accordance with law.

The prayer contained in the petition of 27th January 1938 for the issue of a notice under rule 22 of Order XXI was a step in aid of execution. There are two decisions of this Court directly in point, Pachiappa Achari v. Poojali Seenan and Kamakshi Pillai v. Ramasamy Pillai. In each of these cases the decision was by a Division Bench and the decision was that the prayer for the issue of the notice was a step in aid of execution. The same opinion was expressed by a Full Bench of the Calcutta High Court in Gopal Chunder Manna v. Gosain Das Kalay. Therefore, the District Judge clearly erred in holding that this petition did not serve as a step in aid of execution.

Now, what is the effect of that step? As we have pointed out, the original petition was dismissed by an order of the District Judge on 26th February 1938. This gave a further period of three years, either from the date of the application or from the date of the order dismissing it. The Full Bench which decided Ayi Goundan v. Solai Goundan left open the question whether time began to run from the date of the application or the date of the order on it, because it was unnecessary to decide it on the facts of that case. It is unnecessary for us to go into the question here because the execution petition of 14th November 1942 was filed more than three years after the date of the order on the first petition. The defective petition of 24th July 1941 was also filed more than three years from the date of the order on the first petition. This means that the step in aid pleaded by the decree-holders does not help them so far as the defendants other than the second and sixth defendants are concerned. It does help them with regard to the second and sixth defendants, if it be true that on 14th November 1939 they admitted their liability under the decree in proceedings before the Debt Conciliation Board. The District Court has not inquired into the question whether there was such an admission. Consequently the inquiry must be held.

The result is that the appeal is dismissed with costs as against all the respondents except the second and fourth respondents (the second and sixth defendants respectively). The case will be remanded to the District Court to inquire into the question whether there was an acknowledgment of the debt made in the Debt Conciliation Board proceedings; and, if it is so found, the decree-holders will be entitled to execute the decree against the second and sixth defendants. If there was no acknowledgment, the petition against these defendants must also be dismissed. The costs of the appeal so far as the second and fourth respondents are concerned will be made costs in the further proceedings in the Court below.

N.S