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Jagdeo Singh And Another v. Babu Lal Sah .

Patna High Court

Jan 6, 1941

Judgment

Subsequent
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Structured Summary of the Provided Opinion

Factual and Procedural Background

On 14 June 1935, Babu Lal Sah and Mt. Ramjhari Kuer obtained a decree for rent against Jagdeo Singh and others. On 21 June 1938, Babu Lal Sah alone applied for execution of that decree. In the execution application the names of both decree-holders were stated and Mt. Ramjhari Kuer in fact appeared in the execution proceedings. The judgment-debtors appealed, raising two principal questions in this appeal concerning (1) the maintainability in form of the execution application under Order 21, Rule 15, and (2) whether the application was barred by limitation under Article 6 of Schedule 3 of the Bihar Tenancy Act.

Legal Issues Presented

Whether the execution application made by one of several joint decree-holders (Babu Lal Sah) was maintainable in form where Order 21, Rule 15 of the Civil Procedure Code was not expressly complied with in the application.
Whether the execution application was barred by limitation, the period being three years under Article 6 of Schedule 3, Bihar Tenancy Act, and whether Section 15 of the Limitation Act operated to extend the period because execution had been stayed by the terms of a compromise pending the decision of a title suit.

Arguments of the Parties

Appellants' Arguments (Judgment-debtors)

That the application for execution was not maintainable because it did not comply with Order 21, Rule 15 — it did not expressly state that the applicant sought to execute the decree for the benefit of both decree-holders.
Relied on precedents (including 4 Pat LJ 575 and 17 Pat 223) to contend the application was in an improper form where co-decree-holders were not properly represented in the application.
Contended that Section 15 of the Limitation Act did not apply in the present case because of the special provisions of the Tenancy Act (including Sections 184 and 185 and Article 6 of Schedule 3), and that the reference to the Limitation Act in Article 6 should be read as limited to Section 18 (fraudulent concealment) rather than Section 15.

Respondents' Arguments (Decree-holders / Respondents in appeal)

That Order 21, Rule 15 was not contravened in substance because the name of the other decree-holder (Mt. Ramjhari Kuer) was stated in the execution application and she actually appeared in the execution proceedings, giving the Court the opportunity to protect her interests.
That where one of several decree-holders applies for execution and the other decree-holders do not object, the judgment-debtor cannot complain that insufficient steps were taken to safeguard the interests of others (relying on multiple authorities cited in the opinion).
That the compromise petition forming part of the decree contained a stipulation staying execution until the decision of a pending title suit; hence Section 15 of the Limitation Act applies, effectively extending the period of limitation because execution was stayed by an order until the title suit decision.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
4 Pat LJ 575	Held that where one of two decree-holders applied for execution but the name of the other decree-holder was not mentioned in the application at all, the application was invalid because the other decree-holder had no opportunity to appear or have his interest protected.	The Court distinguished the present case from this authority because, here, the other decree-holder's name was stated in the application and she appeared in the execution proceedings.
17 Pat 223	Dealt with an assignment and an application for execution: application struck off where the person whose name appeared on the record as assignee had not joined; application by assignor and another could not be treated as under Rule 15 because it was not stated that it was for the benefit of the true assignee.	The Court distinguished this authority on its facts: in the present case the beneficially interested co-decree-holder was disclosed and appeared, so the factual basis for striking the application off did not exist here.
8 MLJ 91	Authority for proposition that where one of several decree-holders applies for execution and others do not object, the judgment-debtor cannot contend that the interests of other decree-holders were not properly safeguarded.	The Court relied on this line of authorities to support the conclusion that there was no substance in the objection to maintainability where the co-decree-holder had appeared and did not prevent execution.
14 Lah 212	Same proposition as above regarding absence of objection by co-decree-holders and resultant inability of judgment-debtor to complain.	Used as supporting authority for the Court's view that the form of the application did not render it invalid in the present circumstances.
AIR 1926 Mad 1198 (at p. 1199)	Another authority cited for the rule that if co-decree-holders do not object, execution by one is permissible and judgment-debtor cannot challenge adequacy of protection for other decree-holders.	Cited as part of the body of case law supporting the Court's conclusion on maintainability under Order 21, Rule 15.
ILR (1939) Mad 338	Further authority on the same proposition regarding execution by one co-decree-holder where others do not object.	Relied on along with the other cases to support the view that the first objection lacked substance.
9 Pat 7477	Held that Sections 19 and 20 of the Limitation Act apply to suits governed by Schedule 3 of the Tenancy Act (i.e., that certain Limitation Act provisions operate on Tenancy Act limitation periods).	The Court cited this case as authority for the proposition that provisions of the Limitation Act (other than those expressly excluded) apply to periods prescribed by the Tenancy Act, supporting the application of Section 15.
33 CWN 2278	Held that Section 14 of the Limitation Act was not excluded in computing the period of limitation prescribed by the Tenancy Act.	Referenced by analogy to support the conclusion that Section 15 of the Limitation Act similarly operates on Tenancy Act prescribed periods.
36 CWN 8339	Held that Sections 19 and 20 of the Limitation Act apply in computing limitation periods prescribed by the Tenancy Act.	Used (by analogy) to reinforce the Court's view that Section 15 also applies to periods prescribed by the Tenancy Act.

Court's Reasoning and Analysis

The Court's analysis proceeded in two main stages corresponding to the two issues raised.

Maintainability under Order 21, Rule 15

The Court examined the purpose and requirements of Order 21, Rule 15: where a decree is passed jointly in favour of more than one person, any one or more may apply for execution of the whole decree for the benefit of all, and the Court must satisfy itself that sufficient cause exists and make orders to protect the interests of persons who have not joined in the application.

The appellants argued that the execution application failed to state expressly that it was made for the benefit of both decree-holders as required by Rule 15, relying on authorities where applications were struck down when the non-applicant co-decree-holder's name did not appear on the face of the application and so could not be afforded protection.

The Court distinguished those authorities on the facts: in the present case the name of Mt. Ramjhari Kuer was stated in the application and she actually appeared in the execution proceedings. The Court observed that the object of Rule 15 is to enable protection of the interest of a decree-holder who has not applied and that where co-decree-holders do not object, it is not open to the judgment-debtor to contend that insufficient steps were taken. The Court also noted that the executing Court had taken steps to protect the interest of Mt. Ramjhari Kuer.

Limitation under Article 6, Schedule 3, Bihar Tenancy Act and Section 15, Limitation Act

The Court recognised that Article 6 (Schedule 3, Tenancy Act) prescribes a three-year period for execution of a decree and that, prima facie, the application dated 21 June 1938 was beyond three years from the decree dated 14 June 1935.

However, the Court noted that the rent suit decree was passed on compromise, and the compromise provided that the rent decree should not be executed until the decision in a pending title suit because certain pecuniary adjustments depended on that decision. The title suit was not decided until 24 May 1937. The respondents contended that Section 15 of the Limitation Act applied because the compromise petition forming part of the decree operated as an order staying execution until the decision in the title suit. The Court explicitly stated that the petition of compromise is a part of the decree and "must be regarded as an order staying the execution of the decree until 24th April 1937" (as expressed in the opinion).

The appellants argued that Section 15 of the Limitation Act did not apply because the Tenancy Act contains special provisions (Sections 184 and 185 and Schedule 3) which, they said, limit application of the Limitation Act provisions. The Court analysed Sections 184 and 185 of the Tenancy Act and Section 29(2) of the Limitation Act (as amended in 1922). The Court concluded that the combined effect of Sections 184 and 185 is that the Limitation Act applies to periods of limitation mentioned in Schedule 3 of the Tenancy Act, except that the operation of Sections 7, 8 and 9 of the Limitation Act is barred. Further, there was nothing in the Tenancy Act to show that Section 15 of the Limitation Act had been excluded.

The Court referred to authorities (including decisions in 9 Pat 7477, 33 CWN 2278 and 36 CWN 8339) which supported the proposition that various sections of the Limitation Act apply in computing the periods prescribed in the Tenancy Act. The Court rejected the contention that the reference to the Limitation Act in Article 6 should be read as limited to Section 18 only, observing that Section 18 deals with fraudulent concealment and is confined to a different state of affairs.

On this basis the Court held that Section 15 of the Limitation Act operated to extend the period in the present case because execution had been stayed by an order (the compromise forming part of the decree).

Holding and Implications

Holding: The Court concluded that the execution application was maintainable in the form in which it was made and that it was not barred by limitation. The Court therefore dismissed the appeal.

APPEAL DISMISSED

Implications:

The direct effect is that the judgment-debtors' appeal was dismissed and the execution application by Babu Lal Sah may proceed; the Court ordered dismissal of the appeal with costs.
The Court's decision rests on factual distinctions (the co-decree-holder's name appearing in the application and her actual appearance) and on the application of Section 15 of the Limitation Act where execution was stayed by an order forming part of the decree; the opinion does not purport to lay down a broader novel principle beyond these conclusions.

G.N/R.K

Final Disposition: "Appeal dismissed." (as stated in the opinion)

Show all summary ...

1. On 14th June 1935, Babu Lal Sah and Mt. Ramjhari Kuer obtained a decree for rent against Jagdeo Singh and others. Babu Lal Sah alone applied for execution of this decree on 21st June 1938. In the appropriate column of the application for execution the names of both the decree-holders were stated and Mt. Ramjhari in fact appeared in the execution proceedings.

2. Two questions have been raised in this appeal by the judgment-debtor-appellants. The first is whether the application for execution itself was maintainable in the form in which it was made. It is contended that as the provisions of O. 21, R. 15, were not complied with, the application is not maintainable.

3. That rule provides that in a case where a decree has been passed jointly in favour of more persons than one, any one or more of them may apply for execution of the whole decree for the benefit of them all and requires the Court to satisfy itself that sufficient cause exists for allowing the decree to be executed on an application made under the rule and to make such order as it deems necessary for protecting the interests of persons who have not joined in the application. The application, in the present case, did not expressly state that Babu Lal Sah sought to execute the decree for the benefit of both the decree-holders. Accordingly it is contended on the basis of two decisions of this Court that the application was not in proper form. The first case is that in 4 Pat LJ 575.1 There, one of two decree-holders applied for execution. The judgment-debtors objected that the application was invalid and this contention was upheld by a Division Bench of this Court; but it is to be observed that in that case the name of the other decree-holder was not mentioned in the application at all so that the latter had no opportunity of appearing to raise any objection which he might have to the execution of the decree by his codecree-holder and there was nothing on the face of the application to inform the Court that anybody but the applicant was interested in the decree, so that the Court was not in a position to pass necessary orders for the protection of the interest of the decree-holder who had not joined in the application.

4. The other case is that in 17 Pat 223.2 There the decree-holder A assigned 7 annas interest in the decree in favour of N, who took the assignment in the name of M. A and N applied to execute the decree when M objected that he was the real assignee. The application for execution was struck off. A question arose whether the application for execution made by A and N was a valid application to save limitation for a subsequent application. It was held that as M, the person whose name appeared on the record as the assignee of the decree, had not joined in the application, there was no application by the assignee within the meaning of R. 16 of O. 21, and that the application by a and N could not be held to be an application under R. IS as it was not stated therein that it was for the benefit of the applicants and of H who was also entitled to the benefit of the decree. It does not appear that the name of M was disclosed in the application for execution as the person beneficially interested in that part of the decree which was the subject-matter of the assignment. On the facts therefore the present case is distinguishable from those cited because, as I have already stated, the name of Mt. Ramjhari Euer was not only stated in the application for execution but she actually appeared in the proceedings. The object of R. 15 is clearly to enable the Court to protect the interest of a decree-holder who has not applied for execution when such an application has been made by a co-decree-holder. It has been held in a number of cases that where one of several decree-holders applies for execution and others do not object to the execution being granted to him, it is not for the judgment, debtor to say that sufficient steps have not been taken to safeguard the interest of the other decree-holders: see 8 MLJ 91,3, 14 Lah 212,4 AIR 1926 Mad 11985 at p. 1199 and ILR (1939) Mad 338.6 In my view, there is no substance in the first objection raised on behalf of the appellant. It may be added that in the present case the executing Court has taken steps to protect the interest of Mt. Eamjhari Kuer in the decree.

5. The next question is whether the application for execution was barred by limitation as having been made more than three years from the date of the decree. The period of limitation is that prescribed by Article 6 of Sch. 3, Bihar Tenancy Act, and is three years from the date of the decree. Prima facie, therefore, the application was barred by limitation, but it appears that at the time when the rent suit in which the decree was passed was pending there was also pending a title suit between the same parties. The decree in the rent suit was a decree passed on compromise. The compromise provided that the decree should not be executed until the decision in the title suit as certain pecuniary adjustment would have to be made pending on the decision in that suit. The title suit was not decided until 24th May 1937. It is accordingly contended on behalf of the respondents that Section 15 of the Limitation Act, has the effect of extending the period of limitation in the present case, that is to say, it is contended that execution of the decree in the rent suit has been stayed by an order. The petition of compromise containing the stipulation that the rent decree should not be executed until the decision of the title suit is a part of the decree in the rent suit and, in my opinion, must be regarded as an order staying the execution of the decree until 24th April 1937.

6. But, on behalf of the appellant, it has been strenuously contended that Section 15 of the Limitation Act, does not apply at all in the present case. Section 184 of the Tenancy Act, provides that all suits, appeals and applications specified in Sch. 3 shall be instituted and made within the time prescribed in that schedule for them respectively, and imposes upon the Court a duty to dismiss any suit, appeal or application not made within the prescribed time although limitation had not been pleaded. Sub-section (1) of S. 185 provides that Sections 7, 8 and 9 of the Limitation Act, shall not apply to the suits and applications mentioned in S. 184, but sub-s. (2) of that section provides that subject to the provisions of this chapter, the provisions of the Limitation Act shall apply to all suits, appeals and applications mentioned in S. 184. The combined effect of these two sub-sections appears to be quite clearly this, that the provisions of the Limitation Act apply to the periods of limitation mentioned in Sch. 3, Tenancy Act, except that the operation of SS. 7, 8 and 9, Limitation Act, is barred. Section 29(2) of the Limitation Act, as amended in 1922, provides that where a special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by Sch 1, the provisions of S. 3 shall apply, as if such period were prescribed therefor in that schedule, and that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in S. 4, ss. 9 to 18 and S. 22 shall apply only in so far as, and to the extent to which they are not expressly excluded by such special or local law.

7. There is nothing in the Tenancy Act to show that the provisions of Section 15 of the Limitation Act, have been excluded in computing the period of limitation prescribed by the Tenancy Act. It has accordingly been held in 9 Pat 7477 that ss. 19 and 20, Limitation Act, apply to all suits which are governed fey Sch. 3, Tenancy Act. In 33 CWN 2278 it was held that the operation of Section 14 of the Limitation Act, was not excluded in computing the period of limitation prescribed by the Tenancy Act. In 36 CWN 8339 ss. 19 and 20 were held to apply in computing the period of limitation prescribed by the Tenancy Act. By analogy these cases are clearly authorities for the view that Section 15 of the Limitation Act, operates on the periods of limitation prescribed by the Tenancy Act. It was contended however that the reference to the Limitation Act in Article 6 of Sch. 3 negatives the suggestion that any section of the Limitation Act other than S. 18 can apply to a case governed by Article 6. Article 6 provides a period of three years for the execution of a decree between a landlord and tenant to whom the provisions of the Tenancy Act are applicable eseept where the judgment-debtor has by fraud or lorce prevented the execution of the decree in which case the period of limitation shall be governed by the provisions of the Limitation Act.

8. It would be observed that Article 6 provides a period of three years for the execution of a decree in which no fraud is alleged and further provides that in the case where the judgment-debtor has prevented by fraud or force the execution of the decree the period of limitation shall not be that prescribed by the Tenancy Act but shall be the period prescribed by the Limitation Act. The re-ference to the Limitation Act in this article has nothing to do with Section 18 of the Limitation Act. That section applies to a different state of affairs altogether and is confined to cases in which a person has been fraudulently kept out of knowledge of his rights. For the above reasons I would hold that the application was maintainable in the form in which it was made and it is not barred by limitation, and would accordingly dismiss the appeal with costs.