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PETITIONER: SANTI RANJAN DASS GUPTA

       Vs.

RESPONDENT: M/S DASURAM MIRZAMAL

DATE OF JUDGMENT11/03/1976

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) BEG, M. HAMEEDULLAH SINGH, JASWANT

CITATION:  1976 AIR 2486            1976 SCR  (3) 625  1976 SCC  (2) 188

ACT:      Indian Limitation  Act, 1908, s. 15, whether attachment of decree  amounts to ’stay’ within the meaning of-Execution application  struck   off-Another  application   on   decree becoming executable, if continuation of the previous one.

HEADNOTE:      The respondent  obtained  a  money-decree  against  the appellant, from  the Subordinate judge, Gauhati, and applied for its  execution. The  appellant applied for an adjustment of  the   decree,  and   the  respondent’s  application  for execution was  dismissed.  The  appellant  then  obtained  a decree from  the Subordinate  Judge,  Nowgong,  against  the respondent, and  in its  execution, got  his Gauhati  decree attached.  The   appellant  then  withdrew  his  adjustment- application.      The High  Court allowed  the  respondent’s  appeal  for execution of  the Gauhati  decree.  The  Subordinate  Judge, Gauhati, struck  off his original execution application from the file.  Thereafter, the  attachment order  ceased  to  be operative on  account of  the High  Court’s allowance of the respondent’s  appeal   in  the   Nowgong  matter,   and  the respondent  again  applied  for  execution  of  the  Gauhati decree, but  the Subordinate  Judge, Gauhati,  dismissed the application as  time-barred.  The  High  Court  allowed  his appeal and  directed the execution to proceed. The appellant contended  before   this  Court   that  attachment   of  the respondent’s decree  did not  amount to  a ’stay’ within the meaning  of   S.  15  of  the  Indian  Limitation  Act,  and therefore, his  second application  for execution was barred by limitation,  not having  been filed within three years of the first  one being  struck off  by the  Subordinate Judge, Gauhati.      Dismissing the appeal, the Court ^      HELD: (1) The order obtained by the appellant attaching the decree  of the  respondent precluded the respondent from executing the  decree during  the time the attachment was in force. There  was no  question  of  limitation  because  the application was  filed within  three years  from  28  April, 1964, when  the bar  against execution  was raised  and  the

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attachment order ceased to be operative. [627B-C]      (2) The  order striking  off the  execution application was mere  consigning it  to the  record-room for statistical purposes. The  application for execution on 27th July, 1965, is a continuation of the old application. [627D-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 858 of 1968.      From the  Judgment and Decree dated 7-7-67 of the Assam and Nagaland  High Court  at Gauhati in Misc. Appeal Nos. 36 and 37 of 1966.      Sarjoo Prasad and A. K. Nag for the appellant.      B. P. Maheshwari for the respondent.      The Judgment of the Court was delivered by      RAY, C.J.  This appeal by certificate is from the order dated 26 July, 1967 of the High Court of Assam.      The  only  question  in  this  appeal  is  whether  the respondent’s  application   filed  on   27  July,  1965  for execution of  the  decree  obtained  by  him  is  barred  by limitation. 626      The respondent  on 7  January, 1952  obtained a  decree against the  appellant for  the sum of Rs. 71,980 in a money suit filed  in the Court of Subordinate Judge, Gauhati. On 8 December,  1956   the  respondent   decree-holder  filed  an application No.  89/56 for  executing the said decree. On 15 July, 1957  the appellant,  the judgment  debtor,  filed  an application pleading  adjustment of the decree. On 15 April, 1958 the  judgment debtor  withdrew the said application. On 18 December,  1957 the  Subordinate Judge  Gauhati dismissed the decree-holder’s application No. 89/56. The decree-holder preferred an  appeal. The  High Court  at Gauhati on 1 July, 1959 set  aside the  order  of  the  Subordinate  Judge  and allowed the appeal for execution of the decree.      Meanwhile on  18 January,  1958 the  appellant judgment debtor in  the Gauhati  suit obtained  a decree  against the respondent for  the sum  of Rs. 1,22,000 in the Court of the Subordinate Judge  at Nowgong. In execution of the decree in the Nowgong  suit the appellant on or about 29 January, 1958 obtained an  attachment of the respondent’s decree passed in the Gauhati suit.      On 13  August,  1959  the  Subordinate  Judge,  Gauhati struck off  the execution  application No.  89/56  from  the file.      The respondent  filed  an  appeal  against  the  decree obtained by  the appellant  in the  Nowgong suit.  The  High Court on  28 April  1964 accepted  the appeal  filed by  the respondent and  dismissed the  Nowgong  suit  filed  by  the appellant.      On 27  July, 1965  the respondent  filed an application for  execution  in  the  Court  of  the  Subordinate  Judge, Gauhati. The  appellant preferred  an  objection  contending that the  application is  barred by  limitation. On 4 March, 1966  the   Subordinate  Judge   dismissed   the   execution application as barred by time.      On 26  July, 1967  the High  Court accepted  the appeal filed by  the  respondent  and  directed  the  execution  to proceed.      The contention  of the  appellant  is  that  the  order obtained by  the appellant attaching the respondent’s decree did not amount to a stay within the meaning of section 15 of the  Indian   Limitation  Act,   1908,  and  therefore,  the

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respondent’s application for execution which was filed on 27 July, 1965 was barred by limitation. The appellant contended that when  the Subordinate Judge, Gauhati on 13 August, 1959 struck off  the execution  application of the respondent the respondent should  have filed  an application  for execution within three years from that date.      The High  Court referred to the order dated 29 January, 1958 passed  by  the  Nowgong  Court  attaching  the  decree obtained by  the respondent.  The High  Court relied  on the provisions contained in Order 21 Rule 53 (1) (b) of the Code of Civil  Procedure and  held that  the attachment continued restraining the  respondent from  executing the decree until the notice  issued by  the Court  attaching the  decree  was recalled. The Nowgong court did not pass any order recalling the 627 order. On  1 March,  1958 the  Nowgong court passed an order which was as follows:           "Notice  served.  No  objection  filed  by  J.  D.      (meaning thereby  judgment debtor). Heard both parties.      Execution  case   is  struck   off  for   the  present.      Attachment to continue until further orders."      In the  context of  this order  of attachment passed by the Nowgong court the attachment continued until the Nowgong suit was  dismissed by the High Court on 28 April, 1964. The High Court  rightly held  that  there  was  no  question  of limitation because  the application  was filed  within three years from 28 April, 1964 when the bar against execution was raised and  the  order  restraining  the  respondent  decree holder from  executing the decree in the Gauhati suit ceased to be operative.      Another  contention   which  had  been  raised  by  the appellant and  repeated here  is that when the Gauhati court on 13  August, 1959  struck off the execution case No. 89/56 the execution  application filed on 27 July, 1965 was barred by time.  The High  Court held  that the Gauhati Court on 13 August, 1959  merely struck  off the  execution application, and, therefore,  the subsequent  application which  was made was a  continuation of  the execution  proceedings. The High Court held  that striking off the application did not amount to any order deciding the merits of the application.      The order  obtained  by  the  appellant  attaching  the decree of  the respondent  in  the  Gauhati  suit  has  been rightly held  by  the  High  Court  to  have  precluded  the respondent from  executing the  decree during  the time  the attachment was  in force.  The other  conclusion of the High Court that the execution application dated 27 July, 1965 was a continuation  of the  earlier application is also correct. The order  striking off  the execution  application has been rightly construed by the High Court as merely consigning the application to the Record Room for statistical purposes. The application dated 27 July, 1965 indicates in column 2 as the respondent rightly  stated that the previous application for execution was  struck off  on 13 August, 1959 because of the order  of  attachment  passed  by  the  Nowgong  court.  The attachment order  was nullified  only when  the  appellant’s suit was  dismissed by the High Court on 28 April, 1964. The respondent’s decree  became executable  at  that  time.  The inescapable conclusion is that the application for execution on 27 July, 1965 is a continuation of the old application.      For these  reasons, the  judgment of  the High Court is affirmed. The appeal is dismissed with costs. M.R.                                       Appeal dismissed. 628

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