23 April 1970
Supreme Court


Case number: Appeal (civil) 350 of 1970






DATE OF JUDGMENT: 23/04/1970


CITATION:  1970 AIR 1525            1971 SCR  (1) 364  1970 SCC  (3) 440

ACT: Limitation  Act (9 of 1908), s’ 15 and Art. 182 and Code  of Civil Procedure (Act 5 of 1908), s. 48-Scope of.

HEADNOTE: The first respondent, in 1938, obtained a decree against the appellants branch of a joint family, and in 1941,  commenced proceedings  for the execution of the decree  in  Allahabad. Meanwhile, in 1939, a final decree had been passed in a suit for partitioning the family properties among the members  of the  joint family, and the matter was taken up in appeal  to the High Court of Allahabad.  Certain orders were passed  by the  High Court which were construed by the executing  court in  the years 1941 and 1942 as stay orders of the  execution proceedings  commenced  by the respondent.  The  High  Court passed  a  final decree in the partition  suit  in  December 1949,  but did not immediately discharge the  Receivers  who were  appointed  during  the  pendency  of  the  suit.   The respondent  revived the execution proceedings in  May  1,950 and  a mill belonging to the joint family was  attached  and sold ’but the sale was set-’aside in 1955 as the appellant’s branch applied for relief under the U.P. Encumbered  Estates Act,  1934.  Thereafter, in’ 1956, the decree in  favour  of the  respondent  was transferred to Madras  High  Court  for execution and on 13th August, 1956, the respondent filed  an execution application, for attainment of certain  properties which fell to the appellant’s share. High Court of Madras in Letters Patent Appeal held that  the execution application was in time.  On the question  whether the  execution application dated 13th August, 1956,  was  in time, or barred by limitation, HELD : (i) The respondent bonafide pursued execution against the mill and since his good faith was not questioned  before the  Appellate Court it was not open to the appellant to  do so in this Court. [370 A, C] (ii) It  was not possible to spell out any order of  partial stay  on  the facts and circumstances of the  present  case. The facts that the Receivers were not finally discharged  in 1949  when the final decree by the High Court was passed  in the partition suit, and the understanding of the parties and the  executing court that execution was stayed by  the  High



Court,  indicate  that the stay was  in  unqualified  terms. Therefore,  the  respondent could not have  applied  earlier ’for  execution with respect to other property of the  joint family either at Allahabad or at Madras. [369 A-C, D-G] (iii)     Further,  when  the  execution  proceedings   were revived in May 1950 the executing court held that  execution proceedings  had  been  stayed till December  1949  and  the appellant did not challenge the order of attachment and sale of  mill on-the ground that the proceedings were  barred  by limitation.   Therefore,  the appellant was  barred  by  the principle of res judicata from questioning the order of  May 1950 on the ground of limitation. [371 D-E] 365 (iv) Section  15  of  the  Limitation  Act  states  that  in computing  the period of limitation prescribed the  time  of the continuance of the injunction staying execution shall be excluded.   The  word "prescribed" would apply not  only  to Limitation  Act  but also to the  limitation  prescribed  in general statutes like the Civil Procedure Code.  Section  48 of  the  Code, as it then stood, laid down 12 years  as  the maximum  limit  of the period of execution but  it  did  not prescribe  the  period  within which  each  application  for execution  was  to be made.  Such an application was  to  be made  within three years from the dates mentioned  in  third column   of  Article  182  of  the  Limitation  Act,   1908. Therefore,  an  application for execution of a  decree  must first satisfy Article 182 and it would then have to be found out as to whether s. 48 of the Civil Procedure Code operated as a further bar. [370 C-H; 371 A-B] (v)  Since  the  execution proceedings were  stayed  in  the present  case,  the ’respondent was entitled  to  claim  its benefit  of  s. 15 of the Limitation Act in respect  of  the period  of  stay of the execution of his decree,  from  June 194.1 till end of 1949; and since the execution  application of  1950  was  finally  disposed of  in  1955,  the  present application filed in 1956 was within time. [372 E]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 350 of 1970. Appeal  by special leave from the judgment and  order  dated March     21,  1966 of the Madras High Court in O.S.  Appeal No. 11 of 1962. B.   R. L. lyengar, M. V. Goswami, S. R. Agarwala, A. T. M. Sampat    and E. C. Agrawala, for the appellant. U.   P. Singh, Santok Singh, Ugra Shankar Prasad and Shiva Pujan Singh, for respondent No. 1. S. P. Sinha and M. I. Khowaja, for respondents Nos. 2 and 3. The Judgment of the Court was delivered by Ray,  J. This appeal is by special leave from  the  judgment dated 21 March, 1966 of the Madras High Court dismissing the appeal  preferred  by  the  appellant  against  the   decree holders’ application for execution of the decree. The  appellant  is one of  the  judgment-debtors  brought-on record as legal representative of a deceased judgment debtor Lala  Baijnath  Prasad.  Respondent No.  1  Lakshman  Prasad Gupta  was one of the plaintiffs.  Pratap Chand and  Basudeb Prasad respondents Nos. 2 and 3 respectively are the sons of a judgment-debtor Girdharilal Agarwala. The  plaintiff respondent Lakshman Prasad Gupta was  married to  the sister of Lala Bansilal.  Bansilal belonged  to  the joint  family which consisted inter alia of the  appellant’s father.  There were five 366



branches  of the said joint family of the  judgment-debtors, three  whereof were at Banaras, Calcutta and Naini  and  the other  two were the branches of the descendants of  Mohanlal and  of  Lala  Baijnath Prasad, father  of   the  appellant, respectively.  The said joint family had valuable properties in and around the town of Arrah in Bihar.  There are alleged to  be  valuable  properties of the  joint  family  also  at Allahabad, Banaras, Bombay, Calcutta and Madras. Some  time  in the year 1926 Lala Pratap Chand, one  of  the descendants  of  Mohanlal  who was  a  grand-uncle  of  Lala Bansilal  filed  a  partition  suit  in  the  court  of  the Subordinate  Judge at Allahabad.  A preliminary  decree  was passed in the said partition suit on 14 February, 1927.  An appeal  was  preferred and it was  dismissed.   An  amicable settlement  was arrived  at in the partition  suit  on  13 January,  1931  for partition of the  properties  into  five equal  lots  and  allotment of  the  shares.   Thereafter  a Commissioner was appointed in the partition suit to go  into accounts  and  prepare  five lots.  The  branches  inter  se raised  disputes as to liability for loans  alleged  against the  joint family.  The Commissioner prepared his report  on 18 May, 1936.  Final decree was passed on 13 January,  1939. An appeal was preferred against the said final decree in the partition  suit to the High Court at Allahabad.  The  appeal was disposed on 6 December, 1949. The  plaintiff Lakshman Prasad Gupta and six  others  filled suit  No. 76 of 1937 in the Court, of the First  Subordinate Judge  at Arrah in Bihar and obtained a decree on  20  July, 1938 for Rs. 18,540 and for costs Rs. 1,840/4/-  aggregating Rs.  20,380/4/-.   This decree was  against  Banwarilal  and other  members of the joint family to which the  appellant’s father  belonged.  The decree was transferred from Arrah  to the Court of the Civil Judge at Allahabad where. on 2  June, 1941  the  decree-holder  commenced  execution   proceedings marked  as  Execution  Petition No. 38  of  1941.   In  that execution  petition the decree-holder prayed for  attachment and sale of Shri Krishna Desi Sugar Works at Jhusi known  as the  Jhusi  Sugar Mills in the District of  Allahabad  which belonged to the joint family. The  execution  proceedings were according  to  the  decree- holders stayed under orders of the Allahabad High Court  and after  the stay order was vacated the execution  proceedings were  revived  on 13 May, 1950.  The jhusi  Sugar  Mill  was attached  on 1 1 July, 1952 and it was sold on 19  February, 1955.   The sale was set aside on 31 May, 1955  pursuant  to objections of the judgment-debtors that the Jhusi Sugar Mill could  not  be sold because of the provisions  of  the  U.P. Encumbered  Estates Act, 1934.  It may be stated  here  that some time in the month of September, 1935 367 Baijnath Prasad filed an application before the Collector of Allahabad   for  protection  and  relief  under   the   U.P. Encumbered  Estates  Act of 1934 and it  was  registered  as Encumbered Estates, Suit No. 25 of 1935. Thereafter  the  decree-holders on 17 March,  1956  made  an application  in the Arrah Court for transfer of the  decree. On   6,  June,  1956,  the  Subordinate,  Judge,  at   Arrah transferred  the  decree to the Madras High  Court.   On  13 August,  1956 the decree-holders, filed in the  Madras  High Court  an  application for attaching the properties  of  the joint family.  This application in the Madras High Court  is the subject matter of the present appeal. The  matter-was heard first by the Master of the High  Court of  Madras who held that the application for  execution  was barred  by limitation.  An appeal from the decision  of  the



Master  was heard by the learned Single Judge of the  Madras High Court who held that the application was not within  the mischief  of  bar of limitation  Thereafter  Letters  Patent Appeal  was  heard by a Division Bench of  the  Madras  High Court.  The appeal is from the Bench decision upholding  the judgment of the learned Single Judge. Before the Master of the Madras High Court the contention on behalf  of  the  judgment debtors was that  the  decree  was passed  on  20 July, 1 9 3 8 and  therefore  the  execution petition filed on 1 3 August, 1956 was barred by limitation. The  decree  holders on the other hand  contended  that  the execution  of  the decree which commenced on  2  June,  1941 before the Civil Judge at Allahabad was stayed till the  end of 1949 and was revived on 13 May, 1950 and finally disposed on  31  May, 1955, and, therefore,  the  execution  petition filed  on 13 August, 1956 was within time.  ’he Master  held that the decree holders had failed to prove as to from  what point  of  time  the  execution of  the  decree  was  stayed pursuant  to the order of the Allahabad High Court and  also the  time  when the stay was vacated.  The  application  for execution  was therefore found by the Master of  the  Madras High Court to be barred by limitation. The  learned Single Judge of the Madras High Court  referred to  the  revival of execution proceedings before  the  Civil Judge  at Allahabad on 13 May, 1950 and also the finding  of the Civil Judge at Allahabad who in passing the final  order on  31 May, 1955 setting aside the sale of the  Jhusi  Sugar Mill  stated that the execution proceedings were  stayed  by orders  of the High Court at Allahabad., The Civil Judge  at Allahabad  set  aside  the Sale  because  of  the  mandatory provisions of sections 7(2) and 9(5) of the U.P.  Encumbered Estates  Act.   The  Madras High Court  placed  reliance  on Exhibits P-2, P-3 and P-3A on the question of stay of execu- tion  proceedings.   It  may also be stated  here  that  the judgment 3 68 debtor did not dispute the translation of those Exhibits P-3 and  P-3A.   The Exhibits set out the orders  of  the  Civil Judge  at Allahabad.  Exhibit P.-2 is the judgment dated  31 May,  1955 passed by the Civil Judge setting aside the  sale of the Jhusi Sugar Mill.  Exhibits P-3 and P-3A comprise the orders passed by the Civil Judge.  The three relevant orders in  Exhibits  P-3  and P-3A are dated 18  August,  1941,  23 August,  1941  and  30 August, 1941 in  the  said  execution proceedings. The  order dated 18 August, 1941 was to the effect that  the receivers   were   to  be  informed  about   the   execution proceedings  and  their objections, if any.   The  receivers were the receivers in the partition suit No. 4 of 1926.  The said order further recited that the orders of the High Court at  Allahabad in the, partition suit were also received  in the  executing  court.   The order  dated  23  August,  1941 recited that the execution application of the decree  holder was  presented in the presence of the lawyers of the  decree holder  and the receivers.  Further, the order was that  the request for permission should be submitted in suit No. 4  of 1926  namely, the partition suit of the defendants  judgment debtors.   The order dated 30 August, 1.941 recorded by  the Civil Judge at Allahabad was inter alia as follows :-               "The proceedings remain stopped on account  of               the  injunction of the High Court.   Hence  it               was ordered that receivers should be  informed               accordingly.   Further  steps  will  be  taken               after getting permission . These  orders  are  relied  on  by  the  decree  holder   to



substantiate the case of stay of execution proceedings. The  contention  which was advanced before the  Madras  High Court  and  repeated  in this Court was that  there  was  no absolute  stay  of  the execution of  the  decree.   It  was amplified to mean that the execution proceedings before  the Civil  Judge at Allahabad related only to one  property  and therefore the decree holders would not be entitled to  claim benefit  of exclusion of time by reason of partial  stay  of execution  proceedings at Allahabad.  The Madras High  Court rightly  found that there was no evidence that the  judgment debtors  were  possessed of other  properties  in  Allahabad where the decree was being executed.  The Madras High  Court rightly  held  that the decree holders  were  restrained  by injunction issued by the Allahabad High Court from executing the decree and were therefore entitled to claim the  benefit of section 15 of the Limitation Act in respect of the period of stay of execution of the decree. It  was  contended-by  counsel for-the  appellant  that  the decree holder could start execution proceedings in Madras or in  other States where the judgment debtors had  properties. Simultaneous 3 6 9 execution proceeding in more places than one is possible but the power is used sparingly in exceptional cases by imposing proper  terms  so that hardship does not occur  to  judgment debtors by allowing several attachments to be proceeded with at  the  same  time.   In the  present  case,  however,  the important features are that a partition suit was  instituted in  the year 1926 among the defendants. and  receivers  were appointed of the properties.  The judgment of the  Allahabad High  Court  dated 6 December, 1949  disposing  the  appeals filed  by the parties in the partition suit  directed  inter alia  "that  the parties will be put in  possession  of  the immoveable properties at once, but the two receivers will be legally  discharged only after they have accounted  for  the period they were in charge of the properties".  Counsel  for the  decree  holder rightly relied on this  portion  of  the judgment of the Allahabad High Court that this would fortify the  construction  that there was stay of execution  of  the decree. In  the present case, the effect of the order passed by  the Allahabad  High  Court  was recorded  by  the  Civil  Judge, Allahabad  in his judgment dated 31 May, 1955 to  amount  to stay  of  execution  proceedings.. The order  of  the  Civil Judge, Allababad dated 30 August, 1941 was that "proceedings remain stopped on account of the injunction order issued  by the  High  Court.  in  the Madras  High  Court  the  parties proceeded on thee basis of the order as corded by the  Civil Judge  at Allahabad.  The order indicates that the  stay  of execution proceedings was in unqualified terms, namely, that the execution proceedings were stopped.  It is not  possible to  spell  out any order of partial stay in  the  facts  and circumstances  of  the  present case  as  was  contended  by counsel for the appellant.  The order is on the contrary  to the  effect  that there was an absolute, stay  of  execution proceedings.  It is, therefore, manifest that the  execution proceedings before the Civil Judge at Allahabad were  stayed and  the decree holder was rightly found by the Madras  High Court  to the benefit of exclusion of time during which  the execution, was stayed, Though  the  judgment debtors did not  question  before  the Master  of  the  Madras High Court the  bona  fides  of  the decree holder in prosecuting the execution proceedings, that contention  was advanced before the learned Single Judge  of the  Madras  High Court.  The learned Single  Judge  of  the



Madras  High  Court held that the decree  holders  commenced execution  proceedings for sale of the Jhusi Sugar Mill  for realisation  of the decretal amount but the attempt  of  the decree holder failed because of the objections of R    the judgment-debtors under the provisions of the U.P. Encumbered Estate  Act.   The  sale was set a side  by  reason  of  the mandatory  provisions  of the statute.  The  learned  Single Judge of the Madras High Court rightly held that  the-decree holders prosecuted the exe-- 370 cution  case in good faith and with due diligence  and  were entitled  to protection under section 14 of  the  Limitation Act. Before  the Division Bench of the Madras High Court no  argu ment was advanced touching the bona fides or good faith with which  the execution proceedings were carried  on.   Counsel for  the appellant repeated the contention that  the  decree holders were guilty of lack of good faith and diligence.  It is  not  open  to  the  judgment  debtors  to  advance  that contention  having  abandoned the same before  the  Division Bench  of  the  Madras High Court.  We  are  furthermore  of opinion  that the conclusion of the learned Single Judge  of the Madras High Court on that point is correct. The other question which arise before the Madras High Court was  whether  section 15 of the Limitation Act,  1908  would apply  to limitation prescribed in statutes other  than  the Limitation  Act.  Section 48 of the Code of Civil  Procedure until  its amendment on the passing of the  Limitation  Act, 1963 enacted that the decrees of the Civil Courts were to be executed  within 12 years and not after that.   The  present case  is  governed  by  section 48  of  the  Code  of  Civil Procedure as it stood prior to the deletion of that  section along  with  the passing of the Limitation  Act,  1963.   In section 15 of the Limitation Act, 1908 it is enacted that in computing the period of limitation prescribed for any  suit or   application  for  a  decree  execution  of  which   has been  stayed by injunction, the time of the  continuance  of the injunction shall be excluded.  In the Madras High ,Court it  was  argued  that the  word  ’prescribed’  occurring  in section  15 of the Limitation Act could apply only to  cases of  limitation  prescribed  by the  First  Schedule  to  the Limitation  Act,  1908 with the result that the  benefit  of exclusion  of time by reason of operation of stay could  not be  availed of in cases of limitation prescribed by  section 48  of the Code of Civil Procedure.  The Madras  High  Court relied  on  the decision in Kandaswami  Pillai  v.  Kannappa Chetty(1)  which  held that the expression  ’prescribed’  in section 15(1) of the Limitation Act would apply not only  to limitation   prescribed  in  the  First  Schedule   to   the Limitation Act but also to limitation prescribed in  general statutes  like  the Code of Civil Procedure.   That  is  the correct  statement of law and counsel for the appellant  did not  advance  any  contention  to  the  contrary.   It  may, however, be stated that the effect of section 48 of the Code of Civil Procedure is not to supersede the law of limitation with  regard  to execution of decrees.  The  Limitation  Act prescribes a period of limitation for execution of  decrees. Section  48 of the Code of Civil Procedure dealt  with  the maximum  limit of time provided for execution, but  it  did not prescribe the period within (1)  (1951) 2 M.L.J. 668 3 7 1 which  each  application for execution was to be  made.   An application for execution was to be made within three, years from  any  of  the dates mentioned in the  third  column  of



Article 182 of the Limitation Act 1908.  An application  for execution  of a decree would first have to  satisfy  Article 182  and  it would also have to be found out as  to  whether section  48  of the Code of Civil Procedure  operated  as  a further bar. In   the   present  case,  there  was  stay   of   execution proceedings.  On 13 May, 1950 the execution proceedings were revived.   The judgment debtors did not challenge the  order dated 13 May, 1950.  The judgment debtors impeached the sale only on a ground covered by the U.P. Encumbered Estates Act, 1934.  The judgment debtor further in impeaching the sale of Jhusi  Sugar Mill did not advance before the Civil Judge  at Allahabad any contention that any of the orders,of the Civil Judge  at  Allahabad  reviving  the  execution  proceedings, attaching the Jhusi Sugar Mill and directing the sale of the Sugar  Mill was barred by limitation.  The principle of  res judicata  applies  to execution  procedings.   The  judgment debtors  in the present case did not raise any objection  as to  limitation in regard to execution of the  decree  before the Civil Judge at Allahabad.  On the contrary the  judgment debtors  asked  for setting aside the sale on the  basis  of revival of execution proceedings.  The revival of  execution was  not  challenged and the judgment  debtors  are  thereby barred  by  the principle of rem judicate  from  questioning directly or indirectly the order dated 13 May, 1950 reviving the execution proceedings. When  the appellant made the application for special  leave, the  appellant  referred  to an affidavit  affirmed  by  the appellant’s  father  on 12 February, 1957 in  the  execution proceedings in the Madras High Court.  The copy of the  said affidavit annexed to the petition for special leave in  this Court  is in seven paragraphs.  In paragraph 6 of  the  said affidavit it is alleged that the decree is against 5  bran- ches and the plaintiff Lakshman Prasad in collusion with the other branches excluded the other four branches and chose to proceed only against the appellant’s branch though the other four  branches  were  possessed  of  vast  properties.   The further allegations in paragraph 6 of the said affidavit are that  the  object  of the plaintiff is to  harass  only  one branch  and the application is not bonafide.  The  plaintiff respondent  in  answer  to the petition  for  special  leave affirmed an affidavit in this Court that paragraph 6 in  the said  affidavit was an interpolation and was not at  all  in existence  in the affidavit filed in the Madras High  Court. The plaintiff respondent ti obtained a photostat copy of the said  affidavit  filled  in  the  Madras  High  Court.   The photostat  copy established that paragraph 6 was  not  there and further that the affidavit was affirmed at Allahabad bad on 12 February, 1957 and not at Madras.  Furthermore, the 372 affidavit  was explained to the deponent Baijnath Prasad  as will  appear  from  the photostat copy  as  annexed  to  the petition  whereas  in the copy annexed to the  petition  for special leave there was no such statement.  It is a  serious matter  that the appellant asked for relief on the basis  of false copies of affidavits.  An explanation was suggested in the affidavit-of the appellant that the copy was annexed  in accordance  with the draft that had been sent by the  Madras lawyer.   It is beyond comprehension as to how an  incorrect copy  would be sent by the Madras lawyer.  Counsel  for  the appellant realised the gravity of the situation and conceded that the matter should be proceeded, with on the basis as it paragraphs  did not exist.  The appellant is guilty of  lack of  uberrimae  fidei.  We have therefore  proceeded  on  the basis that paragraph 6 did not exist in the copy of the said



affidavit. The Madras High Court upheld the order of the learned Single Judge  entitling the decree holder to the exclusion  of  the period  spent  in prosecuting  prior  infructuous  execution proceedings before the Civil Judge at Allahabad.  The decree holder was allowed to proceed with the execution proceedings and t he Madras High Court remitted the matter to the Master to consider the questions indicated in the judgment and  the judgment  debtors  were allowed to raise objections  to  the executability of the decree apart from that of limitation as indicated  in the judgment of the learned Single Judge.   We are  of  opinion  that the Madras High  Court  is  right  in holding that the decree holder is entitled to the benefit of exclusion  of  time during which the  execution  proceedings were stayed by the order of the Allahabad High Court and the decree holder proceeded with the said execution  proceedings in good faith and with the deligence. For  these reasons we are of opinion that the appeal  fails. The appellant will pay the costs to the respondents. Y.P.                               Appeal dismissed. 373