Case: Lalji Raja &amp; Sons Vs. Firm Hansraj Nathuram

Both those courts have concurrently come to the conclusion that the previous execution proceedings had been prosecuted by the decree-holders with due diligence and with good faith and the same became infructuous in view of the fact that the Morena Court had no jurisdiction to proceed with the execution. The finding that the previous execution proceedings were carried on with due diligence and good faith and that the same became infructuous for want of jurisdiction on the part of the Morena court was not challenged before us. But it was urged on behalf of the judgment-debtors that S. 48 prescribed a bar and not a period of limitation and consequently the decree-holders cannot take the benefit of Section 14 (2) of the Limitation Act. It is necessary to examine the correctness of this contention.22. Section 48 read thus:"(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from -(a) the date of the decree sought to be executed, or,(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.(2) Nothing in this section shall be deemed -(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application; or(b) to limit or otherwise affect the operation of Article 183 of the First Schedule to the Indian Limitation Act, 1908".23. Article 183 of the Indian an Limitation Act, 1908 read thus:"Description of application.Period of Limitation.Time from which period begins to run.To enforce a judgment, decree or order of any Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction or an order of the Supreme Court.Twelve Years.When a present right to enforce the judgment decree or order accrues to some person capable of releasing the right:Provided that when the judgment decree or order has been revived, or some part of the principal money secured thereby or some interest on such money has been paid, or some acknowledgement of the right thereto has been given in writing signed by the person liable to pay such principal or interest or his agent, to the person, entitled thereto or his agent, the twelve years shall be computed from the date of such revivor, payment or acknowledgment or the latest of such revivors payments or acknowledgments, as the case may be."24. At this stage it is also necessary to read Art. 181 of the Limitation Act of 1908. That Article prescribed that an application for which no period of limitation is provided elsewhere in the Schedule to the Limitation Act, 1908 or by S. 48 of the Code, the period of limitation is three years and that period begins to run when the right to apply accrues. Article 182 of that Act provided that for the execution of a decree or order of any Civil Court not provided for by Article 183 or by S. 48 of the Code, the period of limitation is three years or where a certified copy of the decree or order has been registered-six years, The time from which the period was to run is set out in the 3rd column of the Schedule.25. The argument advanced on behalf of the judgment-debtors is that S. 48 is a self-contained Code and the period prescribed therein is a bar and not a period of limitation and hence the decree-holders cannot take the benefit of S. 14 (2). In support of this argument reliance is placed on sub-section 2 (a) of S. 48 of the Code. That sub-section undoubtedly lends some support to the contention of the judgment-debtors. It indicates as to when the period prescribed under S. 48 (1) can be extended. By implication it can be urged that the period prescribed under S. 48 (1) of the Code can only be extended under the circumstances mentioned in that clause and not otherwise. But in assessing the correctness of that contention we have to take into consideration cl. (b) of sub-section (2) of S. 48 of the Code as well as Arts. 181 and 182 of the Limitation Act, 1908.These provisions clearly go to indicate that the period prescribed under S. 48 (1) of the Code is a period of limitation. This conclusion of ours is strengthened by the subsequent history of the legislation. By the Limitation Act 1963, S. 48 of the Code is deleted. Its place has now been taken by Art. 136 of the Limitation Act of 1963.26. At one stage, there was considerable conflict of judicial opinion as to whether S. 48 is controlled by the provisions of the Limitation Act 1908. But the High Courts which had earlier taken the view that S. 48 prescribes a bar and not limitation have now revised their opinion.The opinion amongst the High Courts is now unanimous that S. 48 of the Code is controlled by the provisions of the Limitation Act, 1908-see Kandaswami Pillai v. Kannappa Chetty: AIR 1952 Mad 186 (FB) Durg v. Pancham ILR (l939) All 647 = (AIR 1939 All 403 ) Sitaram v. Chunnilalsa, ILR (19441 Nap 250 = (AIR 1944 Nag 155) Amarendra v. Manindra, AIR 1955 Cal 269 Krishna Chandra v. Paravatamma, AIR 1953 Orissa 13 and Ramgopal v Sidram, AIR 1943 Bom 164 .27. We are of the opinion that the ratio of the above decisions correctly lay down the law. That apart, it would not be appropriate to unsettle the settled position in law.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We are unable to accede to this contention. As mentioned earlier, the judgment-debtors were served with the notice of the suit. They did not choose to appear before the Court. Hence there is no basis for the contention that any principle of natural justice had been contravened. Further as held earlier the judgment question is not a foreignmay be more appropriate to say that the decree in question is not executable in Courts outside this country. The board itself had noticed that this rule of Private International Law is subject to special local legislation. Clause (c) of Section 20 of the Code provided at the relevant time and still provides that subject to the limitations mentioned in the earlier sections of the Code, a suit can be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part, arises. There is no dispute in this case that the cause of action for the suit which led up to the decree under execution arose within the jurisdiction of Bankura Court. Hence it must be held that the suit in question was a properly instituted suit. From that it follows that the decree in question is a valid decree though it might not have been executable at one stage in Courts in the former Indianwas admittedly a foreign court for the purpose of any proceedings under the Code. The ratio of that decision is wholly inapplicable to the present case. The question whether a decree is a foreign decree or whether it can be transferred to another court for execution has to be judged by the provisions of the Code.This provision undoubtedly protects the rights acquired and privileges accrued under the law repealed by the amending Act. Therefore the question for decision is whether the non-executability of the decree in the Morena court under the law in force in Madhya Bharat before the extension of the Code can be said to be a right accrued under the repealed law. We do not think that even by straining the language of the provision it can be said that the non-executability of a decree within a particular territory can be considered as a privilege. Therefore the only question that we have to consider is whether it can be considered as a right accrued within the meaning of S. 20 (1) (b) of the Code of Civil Procedure (Amendment) Act, 1951. In the first place, in order to get the benefit of that provision, the non-executability of the decree must be a right and secondly it must be a right that had accrued from the provisions of the repealed law. It is contended on behalf of the judgment-debtors that when the decree was passed, they had a right to resist the execution of the decree in Madhya Bharat in view of the provisions of the Indian Code of Civil Procedure (as adapted) which was in force in the Madhya Bharat at that time and the same is a vested right. It was further urged on their behalf that that right was preserved by Section 20 (1) (b) of the Code of Civil Procedure Amendment Act, 1951.It is difficult to consider the non-executability of the decree in Madhya Bharat as a vested right of the judgment-debtors. The non-executability in question pertains to the jurisdiction of certain courts and not to the rights of the judgment-debtors. Further the relevant provisions of the Civil Procedure Code in force in Madhya Bharat did not confer the right claimed by the judgment-debtors. All that has happened in view of the extension of the Code to the whole of India in l951 is that the decrees which could have been executed only by courts in British India are now made executable in the whole of India. The change made is one relating to procedure and jurisdiction. Even before the Code was extended to Madhya Bharat the decree in question could have been executed either against the person of the judgment-debtors if they had happened to come to British India or against any of their properties situate in British India. The execution of the decree within the State of Madhya Bharat was not permissible because the arm of the Code did not reach Madhya Bharat. It was the invalidity of the order transferring the decree to the Morena court that stood in the way of the decree-holders in executing their decree in that court on the earlier occasion and not because of any vested rights of the judgment-debtors. Even if the judgment-debtors had not objected to the execution of the decree; the same could not have been executed by the court at Morena on the previous occasion as that court was not properly seized of the execution proceedings. By the extension of the Code to Madhya Bharat, want of jurisdiction on the part of the Morena court was remedied and that court is now made competent to execute thethe executing court as well as the High Court have taken the view that on the facts of this case, the limitation prescribed in S. 48 of the Code is extended under S. 14 (2) of the Limitation Act, 1908. Both those courts have concurrently come to the conclusion that the previous execution proceedings had been prosecuted by the decree-holders with due diligence and with good faith and the same became infructuous in view of the fact that the Morena Court had no jurisdiction to proceed with the execution. The finding that the previous execution proceedings were carried on with due diligence and good faith and that the same became infructuous for want of jurisdiction on the part of the Morena court was not challenged before us. But it was urged on behalf of the judgment-debtors that S. 48 prescribed a bar and not a period of limitation and consequently the decree-holders cannot take the benefit of Section 14 (2) of the Limitation Act. It is necessary to examine the correctness of thissub-section undoubtedly lends some support to the contention of the judgment-debtors. It indicates as to when the period prescribed under S. 48 (1) can be extended. By implication it can be urged that the period prescribed under S. 48 (1) of the Code can only be extended under the circumstances mentioned in that clause and not otherwise. But in assessing the correctness of that contention we have to take into consideration cl. (b) of sub-section (2) of S. 48 of the Code as well as Arts. 181 and 182 of the Limitation Act, 1908.These provisions clearly go to indicate that the period prescribed under S. 48 (1) of the Code is a period of limitation. This conclusion of ours is strengthened by the subsequent history of the legislation. By the Limitation Act 1963, S. 48 of the Code is deleted. Its place has now been taken by Art. 136 of the Limitation Act of 1963.We are of the opinion that the ratio of the above decisions correctly lay down the law. That apart, it would not be appropriate to unsettle the settled position in law.