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PETITIONER: ANANDILAL & ANR.

       Vs.

RESPONDENT: RAM NARAIN & ORS.

DATE OF JUDGMENT10/05/1984

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1984 AIR 1383            1984 SCR  (3) 806  1984 SCC  (3) 561        1984 SCALE  (1)943

ACT:      Limitation Act  1908  s.  15  (1)  and  Code  of  Civil Procedure 1908  s. 48.  Execution of decree-Partial stay of- Decree holder  whether entitled to claim exclusion of period in computation of limitation.      Words and  Phrases :  "Execution "-Meaning of-S. 15 (1) Limitation Act 1908.

HEADNOTE:      The predecessor-in-title of respondent No. 1 obtained a decree against  the predecessor-in-title of respondent Nos 2 and 3.  The decree  was affirmed  by the State High Court on April 5,  1938. During  the pendency of the appeal, the High Court stayed  execution of  the decree under order XLI, r. 5 of the  Codes of  Civil  procedure  on  condition  that  the appellants-defendants  furnished   security  for   the   due satisfaction of the decree. Against the decree passed by the High Court  the defendants  preferred an  appeal before  the Judicial Committee of the State. In the appeal, the Judicial Committee passed  an interim  order dated  August  16,  1940 directing that  until further orders the properties attached in execution  shall continue  to remain under attachment but further proceedings for the sale thereof shall remain stayed on November  24, 1944  the Judicial  Committee dismissed the said appeal and the interim stay stood dissolved.      Respondent No.  1 who had purchased the decree from the heirs of the original decree-holder resumed the execution of the decree.  The execution  application  filed  by  him  was dismissed for default on June 11, 1945, restored on December 11, 1946 but again dismissed for default on January 21, 1954 Thereafter, a  fresh application  for execution was filed on February 18,  1954. This  application  was  opposed  by  the surety appellants  on the  ground  that  it  was  barred  by limitation having  been filed  beyond the period of 12 years prescribed by s. 48 of the Code of Civil Procedure.      The  District  Judge  rejected  the  objection  by  the appellants holding  that although  the stay of execution was partial as  only sale  of the  attached properties  had been stayed by  the Judicial  Committee,  the  decree-holder  was entitled to the benefit of s 15 (1) of the Limitation Act. 807      The appellants  preferred an  appeal  before  the  High

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Court which  was allowed by a Single Judge, who held that an order of  partial stay  like the one granted by the Judicial Committee only postponed the sale of the attached properties and  did   not  have   the  effect   of  making  the  decree inexecutable and  therefore s.  15(1) of  the Limitation Act was not attracted.      Respondent No.  1 preferred a Letters Patent Appeal and a Full Bench of the High Court held that the word execution" in s. 15 (1) must be construed in a broad sense, that it did not exclude  a partial  stay of  execution and therefore the decree-holder was  entitled to  the exclusion  of the period from August 16, 1940 to November 24, 1944 under s. 15 (1) of the Limitation Act for computation of the period of 12 years prescribed under s. 48 of the Code of Civil Procedure.      Dismissing the Appeal to this Court, ^      HELD : 1. The word "execution" in s. 15(1) embraces all the appropriate  means by  which a  decree is  enforced.  It includes  all  processes  and  proceedings  in  aid  of,  or supplemental to execution. [814B]      2. There is no rational basis for adopting a narrow and restricted construction  on a  beneficient provision like s. 15(1). There  is no  reason why  s. 15 (1) should be given a restricted meaning  as allowing  the benefit  to  a  decree- holder where  there  is  a  complete  or  absolute  stay  of execution and not a partial stay i.e. a stay which makes the degree altogether inexecutable. [814C]      3.  Stay  of  any  process  of  execution  is  stay  of execution  within  the  meaning  of  s.  15  (1).  Where  an injunction or  order has  prevented the  decree-holder  from executing the  decree, then  irrespective of  the particular stage of  execution,  or  the  particular  property  against which, or  the  particular  judgment  debtor  against  whom, execution was stayed, the effect of such injunction or order is to  prolong the  life of  the decree itself by the period during which  the injunction  or  order  remained  in  force [814D-E]      Kundo Mal  & Ors. v. Firm Daulat Ram Vidya Prakash, AIR 1940 Lah. 75, Virchand Kapur Chand v. Marualappa & Anr., AIR 1944 Bom.  303, Chanbasappa  v. Holibasappa,  ILR (1924)  48 Bom. 485  and Kirtyanand Singh v. Prithi Chand Lal. AIR 1929 Pat. 597. reversed.      Bai  Ujam  v.  Bai  Ruxmani,  AIR  1914  Bom.  211  and Govindnath Chaudhuri  v. Basiruddin  Mondal, AIR  1921  Col. 606, and Sitaram and Others v. Chunnilalsa ILR 1944 Nag. 250 approved.      Kirtyanand Singh  v. Prithi  Chand Lal,  AIR 1933 PC 52 explained. 808

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 109 of 1971.      Appeal by  Certificate from  the  Judgment  and  Decree dated 17th  October, 1969  of the Madhya Pradesh High Court, in Letters Patent Appeal No. 16 of 1962      V.A. Bobde and A.G. Ratnaparkhi for the appellants.      S.S. Khanduja for the respondents.      The Judgment of the Court was delivered by      SEN, J.  The short  point involved  in this  appeal  by certificate from  the judgment  and order of a Full Bench of the Madhya  Pradesh High  Court dated  October 17,  1969  is whether a  partial stay  of execution of the decree like the

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one in  question staying  sale of  the attached  property is within sub-s. (1) of s. 15 of the Limitation Act, 1908 so as to entitle  the decree-holder  to  claim  exclusion  of  the period during  which there was stay of sale but the property was  to  continue  under  attachment,  for  the  purpose  of computation of the period of limitation provided by s. 48 of the Code  of  Civil  Procedure,  1908.  Since  the  question involved is  a substantial  question of  law, the High Court has granted  a certificate of fitness Under Art. 133 (1) (c) of the Constitution.      Facts are  somewhat complicated  but it is necessary to disentangle them  to bring out the point in controversy. One Ghasiram, the predecessor-in-title of the present respondent No. 1  Ram Narain obtained a decree for Rs. 5,548.18 p. from the Court of the District Judge, Ujjain against one Bheraji, the  predecessor-in-title   of  respondents  Nos.  2  and  3 Chunnilal  and  Anandilal,  now  the  Judgment-debtors.  The decree was  affirmed in  appeal by the Gwalior High Court on April 5,  1938. During  the pendency of the appeal, the High Court stayed  execution of  the decree under order XLI, r. 5 of the  Code on  condition  that  the  appellants-defendants furnished security  for the  due satisfaction of the decree. Ratanlal,  father   of  the  two  appellants  Anandilal  and Jankilal, executed  a surety  dated August  3, 1927. Against the  decree   passed  by  the  High  Court,  the  defendants preferred a  revision before  the Judicial  Committee of the Gwalior State  which Game  to be  dismissed on  February 14, 1941. While  the revision  was pending  before the  Judicial Committee, the  decree-holder Ghasiram  put  the  decree  in execution against  the judgment-debtors  as also against the surety on February 23, 1939 for attachment and sale of their immovable properties. lt appears that some 809 houses and  certain zamindari  lands of  the surety Ratanlal were  attached   in  execution  of  the  decree.  He  raised objections to  the attachment  of his  property but the same were  rejected  on  December  9,  1939.  Against  the  order dismissing his  objections, the  surety  Ratanlal  filed  an appeal before  the Gwalior High Court which was dismissed on July 22,  1940. He  then filed a Miscellaneous Appeal before the Judicial Committee of the Gwalior State.      It is  common ground  that in  that appeal the Judicial Committee passed  an interim  order dated  August  16,  1940 directing that  until further orders the properties attached in execution  shall continue  to remain under attachment but further  proceedings  for  the  sale  thereof  shall  remain stayed.  On   November  24,   1944  the  Judicial  Committee dismissed the  said appeal and consequently the interim stay stood dissolved.  Thereafter, the  present respondent  No. 1 Ram Narain  appears to  have purchased  the decree  from the heirs  of  the  original  decree-holder  and  the  execution proceedings were resumed. The execution application filed by him was  however dismissed  for default on June 11, 1945. It was restored  on December  14, 1946  but was again dismissed for default  on January  21, 1954  as the  counsel  for  the decree-holder stated that he had no instruction. Thereafter, a  fresh   application  for   execution  was  filed  by  the decree-holder on  February 18,  1954. This  application  was opposed by the surety Ratanlal inter alia on the ground that it was  barred by  limitation having  been filed  beyond the period of 12 years prescribed by 13 s. 48 of the Code.      The question is whether respondent No 1 Ram Narain, the assignee-holder, was  entitled to  exclusion of  the  period from August  16, 1940 to November 24, 1944 under s 15 (1) of the Limitation Act for computation of the period of 12 years

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prescribed under  s. 48  of the  Code. The  District  Judge, Ujjain rejected  the  objection  raised  by  the  appellants holding that  although the  stay of execution was partial in as much  as only  sale of  the attached  properties had been stayed by  the Judicial  Committee,  the  decree-holder  was entitled  to  the  benefit  of  s  15  (1).  The  appellants preferred an  appeal before the High Court which was allowed by the  learned Single  Judge by his order dated February 9, 1962. The learned Single Judge held that an order of partial stay like  the one  in  question  granted  by  the  Judicial Committee which  only postponed  the sale  of  the  attached properties did  not have  the effect  of making  the  decree inexecutable and therefore s. 15 (1) of the Limitation Act. 810 was not  attracted. He  understood the  decision of  Grille, C.J. and  J. Sen,  J. in  Sitaram &  Ors. v.  Chunilalsa  as laying down that s. 15 (1) was applicable only when there is absolute stay of execution.      Aggrieved by  the decision of the learned Single judge, respondent No. 1 preferred a Letters Patent Appeal which was referred by a Division Bench to a Full Bench as the question whether  a  partial  stay  was  within  s.  15  (1)  or  the Limitation Act was of considerable importance. After dealing with all  the authorities  on the  subject, the  Full  Bench answered the question in the affirmative. It was of the view that the  Limitation  Act  like  any  other  enactment  must receive a  construction which  the  language  in  its  plain meaning  is  capable  of  bearing  and  that  there  was  no justification  for   placing   a   narrow   and   restricted construction on  the  word,  "execution"  occurring  in  the phrase "execution  of the  decree"  in  s.  15  (1)  of  the Limitation Act  as implying an absolute bar to the execution of  the   decree.  According  to  the  Full  Bench,  such  a construction was  not warranted  as it would involve reading into the section words such as "totally. wholly, as a whole, or by  all possible means" which are not there. According to its plain language, it held, that s. 15(1) did not exclude a partial  stay  of  execution.  After  referring  to  several decisions  of   different  High   Courts,  the   Full  Bench particularly placed reliance on the decision of the Calcutta High Court  in Sreenath  Roy v.  Radhanath Mookerjee holding that the words "execution of the decree" mean enforcement of the decree  by what  is known as by any of the "processes of execution". It  accordingly. held  that the word "execution" in s.  15 (1)  must be  construed in a broad sense taking in all or  any  of  the  various  processes  of  execution  and observed that  the decision  in Sitaram’s  case, supra, does not take a contrary view. The Full Bench therefore held that the decree-holder  was entitled  to  the  exclusion  of  the period from  August 16,  1940 to  November 24, 1944 under s. 15(1) of  the Limitation  Act in  reckoning the period of 12 years prescribed  by s.  48 of  the Code. We concur with the view expressed by the Full Bench.      It  is  well  settled  that  s.  48  of  the  Code  was controlled by  s. 15 (1) of the Limitation Act. S. 48 of the Code enacted a rule of limitation and prescribed a period of 12 years  for an  application for  execution of  decrees and orders.  It  has  since  been  repealed  by  s.  28  of  the Limitation Act, 1963 which enacts that "in the Code of Civil 811 Procedure, 1908, (Act V of 1908) s. 48 shall be omitted". In its place  a new  provision Art. 136 has been introduced and that prescribes  "for the execution of any decree other than a decree  granting a  mandatory injunction)  or order of any Civil Court  a period  of 12 years, etc. Thus, the substance

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of s.  48 continues  to be  the law and for that reason, and also  for   the  reason   that  with   regard   to   pending applications,  the   law  as  laid  down  in  the  decisions interpreting s.  48 might  have to  be referred  to,  it  is necessary to give reasons.      There has been a sharp divergence of judicial authority on the  question whether a partial stay was within s. 15 (1) of the Limitation Act. The preponderance of judicial opinion appears to  be  in  favour  of  the  view  that  s.  15  (1) contemplates an  absolute stay.  There is  a  long  line  of decisions starting  from Kundo  Mal & Ors v. Firm Daulat Ram Vidya Prakash  where Din  Muhammad  J.  laid  down  that  if execution is not completely and absolutely stayed, s. 15 (1) of the  Limitation Act  does not  come into  play,  down  to Virchand Kapur  Chand v.  Marualappa &  Anr  where  Sen,  J. reaffirmed that  s. 15  (1) contemplates  an  absolute  stay which renders  the decree-holder incapable of taking out any proceeding for  execution of the decree, which are all based on  the   dictum  of   Macleod,  C.  J.  in  Chanbasappa  v. Holibasappa to  the effect that s. 15 (1) only applies to an absolute stay.  The Patna High Court also took the same view in Kirtyanand  Singh v.  Prithi  Chand  Lal.  The  dicta  of Maclood, C. J. in Chanbbsappa’s case and of Din Muhammad, J. in Kundo  Mal’s case  do not  give any  reasons for the view taken. Sen,  J. in  Virchand’s case and however gave reasons for taking  the view that s. 15 (1) contemplates an absolute stay which renders the decree-holder incapable of taking out any proceeding  for execution  of the  decree.  The  learned Judge observed  that a partial stay e.g. a stay of execution in one  particular mode  is not stay of execution within the meaning of  s. 15  (1) if  it is  open to  the decree-holder incapable of  taking out any proceeding for execution of the decree. The  learned Judge observed that a partial stay e.g. a stay of execution within the meaning of s. 15 (1) if it is open to the decree-holder to execute his decree in any other manner. He referred to the contrary view taken by the Bombay High Court  in Bai  Ujam v.  Bai Ruxmani by the Rangoon High Court in Nachiappa Reddy v. Maung Pe and 812 by the  Calcutta  High  Court  in  Govindnath  Chaudhari  v. Basiruddin Mondol  where it  had  been  held  that  stay  of execution of  a part  of the  decree or against a particular property will nevertheless save limitation’ for execution of the decree  as a  whole, and  remarked that  in view  of the decision of  the Privy Council in Kirtyanand Singh v. Prithi Chand Lal,  these decisions were no longer good law. We find it difficult to accept the reasoning.      The decision of the Privy Council in Kirtyanand Singh’s case does  not lay down any contrary proposition. There, the point appears  to have  arisen from  an order  passed by the Court in  the Raj Suit to the effect that "the decree-holder were to  wait for  some time  for payment".  That order  was subsequently set  aside having  been in  operation for about seven months.  The decree-holders’  contention was that they were entitled  to the  benefit of  s. 15 (1) with respect to the  aforesaid   period  of   seven  months.   Lord  Tomlin, delivering the judgment of the Judicial Committee, construed the  aforesaid   order  as  meaning  not  an  order  staying execution within  s. 15  (1)  of  the  Limitation  Act,  and observed:           Now the  first thing to be observed is that at the      time when  that order  was made  there was  in fact  no      application for  execution pending  at all.  It was  an      order again  made in  the Raj  Suit and not in the rent      suits; it  was all  order made  on application  by  the

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    decree-holders  seeking   leave  to   proceed   against      property in  the hands of the receiver in the Raj suit.      It was  an order  which did not stay at all, but simply      said that  so far  as that application in that suit was      concerned the  appellants were  to wait.  That seems to      their Lordships  not to  be in  any  sense  within  the      meaning of  the section  a stay  of  the  execution  by      injunction or order." (Emphasis supplied)      In Lala  Baijnath Prasad  & Ors. v. Nursinghdas Gujrati the Calcutta  High Court  appears to  have adopted  a middle course, Chakravarti,  C. J.  delivering the  judgment of the Court observed:           "If the decree-holder is prevented altogether from 813      executing his  decree, it  is but  reasonable that time      should not  run against  him  so  long  as  he  remains      disabled and the section says so. But there seems to be      no reason  why  the  section  should  be  construed  as      meaning that  even when  the  injunction  or  order  is      limited to  one or  some of several judgment-debtors or      to  one   or  some  of  their  properties  or  to  some      particular mode  of execution and even when the decree-      holder is  left  free  to  proceed  against  the  other      judgement-debtors or  other properties or in other way,      he will be entitled to the benefit of the section.      The learned  Chief Justice observed that in such a case the execution of the decree is not stayed but only execution in certain ways and against certain persons or properties is prevented, and then added.      "But assuming  ’stayed’ include  ’stayed in  part’, the      utmost that  can be  claimed under  the  terms  of  the      section is  that if a decree-holder is restrained for a      time   from    proceeding   against   some   particular      judgment-debtor or  some particular property or in some      particular way,  and when the bar is lifted, he applies      for execution  against the  same judgment debtor or the      same property  or in  the same way, he will be entitled      to exclude  the period  during which  he remained  i.e.      strained."      We feel  that there  is no, justification for placing a rigid construction  on a  beneficent provision like s. 15(1) of the Limitation Act. lt is not necessary for us to go into the history  of the legislation which has been dealt with at length in many of the decisions laying down that s 48 of the Code is  controlled by  3. 15(1)  of the Limitation Act. All that we need say is that both the enactments have throughout been treated  as supplementary  to each  other, and  concern with procedural  law. It  is also  true that  in  construing statutes  of   limitation  considerations  of  hardship  and anomaly are  out of  place. Nevertheless,  it is,  we think, permissible to  adopt a beneficent construction of a rule of limitation if  alternative constructions are possible. It ;9 plain on  the terms  of s.  15(1) that  the word "execution" appearing in  the collocation  of words  "the  execution  of which has  keen stayed"  must be  construed in a liberal and broad sense.  As observed  by the  Calcutta  High  Court  in Sreenath Roy’s  case, supra,  the words  "execution  of  the decree" mean  the enforcement of the decree by what is known as "process of execution". 814      Agreeing with  the Full  Bench, we  are inclined to the view that  the word "execution" in s. 15(1) embraces all the appropriate means by which a decree is enforced. lt includes all process  and proceeding  in aid  of, or supplemental to, execution. We  find no  rational basis for adopting a narrow

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and restricted  construction on  a beneficent provision like the one  contained in s. 15(1). There is no reason why s .15 (1) should  be given  a restricted  meaning as  allowing the benefit to  a decree-holder  where there  is a  complete  or absolute stay  of execution  and not  a partial  stay i.e. a stay which makes the decree altogether inexecutable. Nor can we subscribe  to the  proposition that  in cases  of partial stay, the  benefit under  s. 15(1)  can be had only where an execution  application   is  directed   against   the   same judgment-debtor or  the same  property, as  against whom  an execution was  previously stayed.  Stay of  any  process  of execution is  therefore stay of execution within the meaning of the  section. Where  an injunction or order has prevented the  decree-holder   from   executing   the   decree,   then irrespective of  the particular  stage of  execution, or the particular  property   against  which,   or  the  particular judgment-debtor against  whom,  execution  was  stayed,  the effect of such injunction or order is to prolong the life of the decree itself by the. period during which the injunction or order  remained  in  force.  The  majority  view  to  the contrary taken-by some of the High Courts overlooks the well settled principle that when the law prescribes more than one modes of  execution, it  is for  the decree-holder to choose which of them he will pursue.      For  these   reasons,  the  appeal  must  fail  and  is dismissed with costs. N.V.K.                                     Appeal dismissed. 815