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PETITIONER: PARBATI DEVI & ORS.

       Vs.

RESPONDENT: MAHADEO PRASAD TIBREWALLA

DATE OF JUDGMENT31/07/1979

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. SEN, A.P. (J)

CITATION:  1979 AIR 1915            1980 SCR  (2) 156  1979 SCC  (4) 761

ACT:      Limitation Act  1908, Art.  183, Limitation  Act  1963, Art. 136  & Code of Civil Procedure 1908 (V of 1908), S. 48- Money suit  based on  mortgage Consent  decree by Court-Part payments made-Legal  representative substituted  on death of judgment-debtor-Consent order  on basis of settlement passed by Court-Execution field-if time-barred.

HEADNOTE:      In a  suit for  recovery of  money on  the basis  of  a mortgage, a  consent decree  was passed.  When the judgment- debtors failed  to pay  the amount  the mortgaged properties were ordered  to be  sold. The  decree-holder  assigned  his interest under  the decree  in favour  of the respondent and this was  approved by  the Court. A part-payment was made to the decree-holder.  On the  death of  one of  the  judgment- debtors, his  heirs and legal representatives (appellants in this appeal)  were substituted.  On June  17, 1953 a consent order was  passed by  the Court on the basis of the terms of settlement arrived  at between the parties. According to the will left  by one  of the  judgment-debtors his daughter was the universal  legatee  and  his  son-in-law  was  the  sole executor. When  the decree-holder  sought execution  of  the decree a  Single Judge  of  the  High  Court  dismissed  the application on  the grounds-(1) that the terms of settlement between  the  parties  recorded  on  17th  June,  1953  were entirely different  from the  original decree  and  had  the effect of  superseding it; (2) that the fact of the death of one of  the judgment-debtors  was not recorded and his heirs were not  substituted and  (3) execution was barred under s. 48 of  the Code  of Civil  Procedure. On  appal, a  Division Bench of  the High  Court reversed  the order  of the Single Judge.      Dismissing the appeal, ^      HELD:  1.  There  was  no  bar  of  limitation  in  the execution instituted  in 1965.  At  no  point  of  time  the mortgage decree  had been  fully satisfied. It is not a case in which  the execution was barred either under s. 48 CPC or Art. 183  of the  Limitation Act,  1908. Execution  was  not barred under Art. 136 of the Limitation Act, 1963. [159D]      2. There  is no  force in  the contention  that it  was

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already barred  when the  1963  Act  came  into  force.  All through steps had been taken by the decree holder to enforce the  decree.  When  the  order  of  sale  of  the  mortgaged properties was  passed in  1929 some  payments were made and finally accounts  were settled  in 1934. Thereafter the mode of execution  proceeded by  appointment of  a receiver. Some money was  paid  in  1939.  In  1945  the  heirs  and  legal representatives of one of the deceased judgment-debtors were substituted. Appellant  no 1  was allowed  to take steps for the satisfaction  of the  decree; but  nothing was  done.  A settlement was  again arrived at in 1953 for satisfaction of the decree  but on  the judgment-debtor’s  failure to comply with the  terms of  the settlement  the present  proceedings were started well within 12 years. [159E-H] 157      3. The  daughter  of  the  second  judgment-debtor  was competent to represent the estate of her father. Even if her husband who  was the  sole executor  of  the  will  was  not substituted, execution was not defective. [160B]      The Andhra Bank Ltd. v. R. Srinivasan and Others [1962] 3 S.C.R. referred to.      4. The  settlement  of  17th  June,  1953  was  not  an altogether renovation  of the  old decree. All that was done was that  the amount  due was  quantified and  the  mode  of satisfaction  was   prescribed  giving  opportunity  to  the judgement-debtors to  satisfy the decree by conveying one of the two  mortgaged houses. The judgment-debtors did nothing. Though the  terms of  settlement were  silent with regard to what was  to happen  on failure to satisfy the decree, it is legitimate to  assume that  the parties  intended  that  the decree holders  would be  entitled to  realise the  dues  by execution of the original mortgage decree. The order of 17th June, 1953 passed by the Court had not the effect of passing a new  decree in  substitution of the old one. It had merely the effect  of giving  facility to  the judgment debtors for the satisfaction  of the  decretal dues. On their failure to do so  they were liable to be proceeded with in execution of the original mortgage decree. [160C-F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2494 of 1969.      From the  Judgment and  Decree dated  24-1-1969 of  the Calcutta High  Court  in  Appeal  from  Original  Order  No. 111/66.      D. N. Mukherjee and N. R. Chaudhary for the Appellants.      P. K. Chatterjee and Sukumar Ghosh for the Respondent.      The Judgment of the Court was delivered by      UNTWALIA, J.  This is an appeal by certificate filed by the judgment-debtors  from the decision of the Calcutta High Court given in appeal from that of a learned single Judge of that Court.  The facts  of the  case clearly demonstrate the fighting attitude  of the  judgment-debtors to gain time for the satisfaction of the decree.      On August 15, 1925 one Indera Chand Kejriwal instituted on the  original side  of the  Calcutta High Court a suit on the basis of a mortgage against Ram Chander Saragogi, Sewbux Saraogi and  Tejpal Saraogi  for recovery of Rs. 38,000/- as principal and Rs. 6,082.8 annas as interest. By an equitable mortgage the  property mortgaged consisted of two houses (1) No. 126, Harrison Road and (2) No. 13/2, Syed Salley Lane in the town  of Calcutta. On November 26, 1926 a consent decree was passed  for a sum of Rs. 41,000/- together with interest

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thereon @  6.3/4% per  annum. On  failure of  the  judgment- debtors to  pay the  amount the mortgaged properties were to be sold. On 3rd of January, 1929 it was ordered and 158 decreed that  the mortgaged property be sold. On 16th April, 1934 Indera  Chand Kejriwal by a deed of assignment assigned his interest in the decree to Mahadeo Prasad Tibrewalla, the respondent  in  this  appeal.  On  the  application  of  the assignee decree-holder  an order  was made  on the  8th May, 1934 substituting  his name  in place of the original decree holder and  recording some  terms of  settlement between him and  the   judgment-debtors.  The   amount   with   interest quantified on that date was Rs. 60,023.12 annas which was to carry an  interest of  6.3/4% per  annum. Subsequently on an application of  the decree  holder one  Anandilal Poddar was appointed on  the 14th  June, 1938  a receiver  of rents and profits of  the mortgaged  properties. A sum of Rs. 10,000/- was paid  to the  decree holder  on the  7th September, 1939 towards part satisfaction of the decree. On the death of Ram Chander Saraogi, one of the judgment-debtors, by order dated the 7th August, 1945 Smt. Parbati Devi, Ananta Kumar Saraogi and   Suraj    Kumar   Saraogi,    his   heirs   and   legal representatives, were substituted. They are appellant Nos. 1 to 3 in this appeal.      No further  payment was  made to  the decree holder and eventually a  consent order  was passed  by the Court on the 17th June,  1953 on  the basis  of the  terms of  settlement arrived at  between the  parties which  were incorporated in the letter  written by the Solicitor of the judgment-debtors to  the  Solicitor  of  the  decree  holder.  The  terms  of settlement are  quoted in  full in the appellate judgment of the High  Court. The  salient terms of the settlement may be stated as follows:-           (1)   That the  total dues on the date came to Rs.                1,10,000/-.           (2)   That Shri Anandilal Poddar, the receiver was                to pay Rs. 35,000/-.           (3)   That a sum of Rs. 40,000/- was to be paid by                conveying premises  No. 13/2 Syed Salley Lane                to the decree holder, and,           (4)   That a sum of Rs. 35,000/- was to be paid in                cash by  raising money  by  execution  of  an                another  mortgage   of  premises   No.   126,                Harrison Road.      Anandilal Poddar  paid the  sum of  Rs.  35,000/-.  But nothing further was done by the judgment-debtors pursuant to the settlement  arrived at  on the  17th June,  1953. Sewbux Saraogi, one of the judgment-debtors, died leaving a Will in which the  universal legatee  was his daughter Smt. Kapurbai and  the   sole  executor   appointed  therein  was  Motilal Jhunjhunwalla, husband of Kapurbai. On the 7th 159 June, 1965  the respondent  affirmed a tabular statement for execution of  the decree.  A learned  single  judge  of  the Calcutta High Court dismissed that application mainly on the grounds-(1) that  the terms  of bargain  between the parties recorded on the 17th June, 1953 were entirely different from the original  decree and  had the  effect of superseding it; the former  decree, therefore,  was not executable; (2) that the factum  of the  death of Sewbux Saraogi was not recorded and his heirs were not substituted in the tabular statement. In passing, the learned single Judge also expressed the view that the  execution was  barred under section 48 of the Code of Civil  Procedure. On  appeal by  the  decree  holder  the Appellate Bench  has reversed  the decision  of the  learned

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single Judge  on all  the points.  Hence this  appeal by the judgment-debtors.      We shall first dispose of the point of limitation. From the facts stated above it is abundantly clear that there was no bar  of limitation in the present execution instituted in the year  1965. At  no point of time the mortgage decree had been fully satisfied. All through steps were being taken and it was  not a  case where  the execution  was barred  either under section  48 of  the Code of Civil Procedure or Article 183 of  the Limitation Act 1908. It was conceded and rightly so by  learned counsel for the appellants that the execution was not  barred under  Article 136  of the  Limitation  Act, 1963. But the submission was that it was already barred when that Act  came into  force on the 1st of January, 1964 under Article 183  of the  old  Act.  We  have  no  difficulty  in rejecting the  argument of limitation. All through steps had been taken  by the  decree-holder. The  case was  not  lying dormant at  any point  of time  for a period of more than 12 years. When  in the year 1929 there was an order for sale of the mortgaged  properties it appears some payments were made and  finally   accounts  were  settled  in  the  year  1934. Thereafter the mode of execution proceeded by appointment of a receiver. A sum of Rs. 10,000/- was paid in the year 1939. In the  year 1945  steps were  taken for substitution of the heirs and  legal representatives of Ram Chander Saraogi, one of the  deceased judgment-debtors.  Parbati Devi,  appellant No. 1,  was allowed  to take some steps for the satisfaction of the decree. But nothing was done. Eventually a settlement was again arrived at on the 17th June, 1953 for satisfaction of the decree but on the judgment-debtors’ failure to fulfil the settlement  the  present  proceedings  were  started  by filing the  tabular statement  on the 7th of June, 1965 well within 12  years of  the  17th  June,  1953.  The  point  of limitation raised  on behalf  of the  appellants, therefore, must be rejected. 160      A statement had been made in the tabular statement that Sewbux Saraogi,  one  of  the  judgment-debtors,  was  dead. Kapurbai, his  daughter along  with others were sought to be substituted in  his place.  Later on  it transpired that she was a  universal legatee  under a  will executed  by  Sewbux Saraogi.   She   was,   therefore,   undoubtedly   a   legal representative competent  to represent  the estate of Sewbux Saraogi. Even  in absence  of the  substitution  of  Motilal Jhunjhunwalla, the  sole executor of the will, the execution was not  defective. Reference in this connection may be made to the decision of this Court in the case of The Andhra Bank Ltd. v.  R. Srinivasan and Others, (1)  decision relied upon by the Appellate Bench.      Coming to  the third  and the  last  point  it  may  be mentioned that  the settlement  arrived at on the 17th June, 1953 was not an altogether renovation of the old decree. The amount due  was quantified  and the mode of satisfaction was prescribed giving liberty to the judgment-debtors to satisfy the decree  by conveying one of the two mortgaged houses and by paying a sum of Rs. 35,000/- in cash by raising the money by mortgage  of the  other house.  The judgment-debtors  did neither. The  terms of settlement were silent as to what was to happen  on the failure of the judgment-debtors to satisfy the decree in the manner agreed upon. In such a situation it was quite  legitimate to  assume that  the parties  intended that the  decree holders  would be  entitled to  realise the dues by  execution of  the original mortgage decree. Reading the terms  of settlement in the context of the letter of the Solicitor of the Judgment-debtors it is plain to us that the

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order dated  17th June, 1953 had not the effect of passing a new decree in substitution of the old one. It had merely the effect of  giving facility  to the  judgment-debtors for the satisfaction of the decretal dues. On their failure to do so they were  liable to  be proceeded  with in execution of the original mortgage decree.      For the  reasons stated above, we hold that there is no substance in  any of  the points  arising in this appeal. We accordingly dismiss this appeal with costs. N.V.K.                                     Appeal dismissed. 161