Case: Prem Raj Vs. Ram Charan

debtor, the creditor could not have presented any application in ordinary course for the further execution of his decree with the least hope of success. Two at least of the High Courts in India had already put so liberal a construction upon the insolvency provisions of the old Civil Procedure Code that an executing creditor must have foreseen that no application for the execution of the decree either by sale of property or arrest of the person of the judgment-debtor could have the least chance of success so long as the judgment-debtor had been declared an insolvent under Section 351, even although he had not been actually discharged within the meaning of Section 357. So that we think that in view of the Courts finding that this judgment-debtor was an insolvent early in 1906, the present appellant had no other course open to him than in the first instance to get this bar to the further execution of his decree removed, and the only way in which he could hope to obtain that result would be by first opposing the insolvency petition in the first court, and if he failed there, by appealing to higher authority".60. The principle adverted to in the above passage of the Bombay High Court appears to be correct. In that case also, as in the present appeal, there was no controversy about the proper court" within the meaning of the 2nd explanation to Article 182.61. Coming now to the facts of the case at hand, it is found that the appellant (decree-holder) was faced with resistance from the respondent judgment-debtor and his relations. The appellant, however, made abortive attempts to execute the mortgage decree in order to obtain possession of the suit property. Having failed to obtain possession by means of usual civil process, the appellant applied to the court for police aid but the prayer was rejected. Soon after the appellant was dragged to the court by the respondents son in a suit wherein both the appellant and the respondent were parties although the respondent was ex parte. If the respondents son had succeeded in the suit the entire foreclosure decree would have been a scrap of paper for the appellant. The appellant, therefore found in his front a hurdle which must first be crossed before he could successfully execute his decree in order to obtain possession of the suit house. No doubt his defence was successful in the trial court but the first appellate court partly accepted the appeal of the judgment-debtors son with reference to half of the share of the suit house and the decree thereafter was no longer the original foreclosure decree which he could execute.62. The form of the decree has already been set out above. The decree in the Civil Suit No. 75-A of 1957 had thus a direct and immediate connection with and effect upon the decree in Suit No. 27-A of 1952 sought to be executed. The nexus between the two is manifestly clear. In such circumstances it is obvious that the appellants successive ecphracice actions in defending the foreclosure decree in different ways in the course of the lengthy litigation until its final determination in the High Court are all steps-in-aid of execution of his foreclosure decree. These steps to remove the impediment in executing the foreclosure decree were absolutely incumbent upon the appellant to take the next move in furtherance of the execution of the foreclosure decree to facilitate the same. These being, therefore, necessarily "step-in-aid of execution" of the foreclosure decree, the appellants fifth execution application was within time, being within three years from the date of the final order in the High Court on January 1, 1962.63. It should also be remembered that there was a perpetual injunction restraining the appellant from executing the foreclosure decree in Prakash Chandras Appeal No. 37-A / 59 during the period from 31-12-1958 to 21-10-1959. Thereafter when the appeal was partly allowed the perpetual injunction was directed in the decree against half of the suit house. In other words the injunction against the decree in Suit No. 27-A / 52 was never raised fully at any time.64. It is clear that the original foreclosure decree in the form it was, was not capable of execution and the appellants all attempts in the series of litigation were to restore the said decree to its original form for proper and effective enforcement of the same. The appellant carried this race up to the High Court and having finally stopped there, turned to execute whatever is now left for enforcement. Although not directly on the point, the Privy Council in Maharaja Sir Rameshwar Singh Bahadur v. Homeshvar Singh, 40 Mad LJ 1 at p. 6 = (AIR 1921 PC 31) while dealing with Articles 181 and 182 of the Limitation Act 1908 laid down a kind of pragmatic principle in the following words:-"They (the Privy Council) are of opinion that, in order to make the provisions of the Limitation Act apply, the decree sought to be enforced must have been in such a form as to render it capable in the circumstances of being enforced. A decree so limited in its scope as that of the 27th July, 1906, under consideration cannot, in their opinion, be regarded as being thus capable of execution."65. In the view thus taken in this appeal it is not necessary to decide whether Article 182 (4) could be invoked in this case on the basis of an implied amendment of the foreclosure decree as a necessary consequence of the decree in the subsequent suit. It is also not necessary in this appeal to deal with the alternative submission of the appellant with regard to the theory of revival of his execution case earlier consigned to the records in 1956.66. In the result the appeal is allowed and the judgment of the High Court is set aside, but in the entire circumstances of the case the parties will bear their own costs in this Court.ORDER67.

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

Explanation:
0[ds]7. The final decree in favour of the appellant was drawn up under Order XXXIV, Rule 3, Civil Procedure Code. The decree absolutely debarred the respondent and all persons claiming under him from redeeming the mortgage. It also directed the respondent to deliver possession of the disputed house which was mortgaged. The decree was binding on the respondent and any one claiming under him. It could not and did not purport to bind a third person claiming any interest in the house in his own right. In his suit Prakash Chandra challenged the decree, inter alia, on the ground that he was the sole owner of the house. He claimed a declaration that the decree was not binding on him and a permanent injunction restraining the appellant from taking possession of the house in execution of the decree. The appeal court found that Prakash Chandra was the owner of a half share in the house by virtue of the gift from Save who had a half share and that accordingly the decree was not binding on him to the extent of a half share. The appeal court granted a declaration to that effect and an injunction restraining the appellant from taking possession of the half share of Prakash Chandra in the house in execution of the decree. The decree of the appeal court was affirmed by the High Court.8. It is plain that neither the decree of the appeal court nor the decree of the High Court reversed, varied or amended in any manner the final foreclosure decree of the appellant. The foreclosure decree remained intact and fully alive. It could be executed against the respondent according to its tenor. He could be ejected from whole house. But it could never have any effect against Prakash Chandras paramount title to a half share in thedo not think that the rule of liberal construction gives a free hand to the Court to stretch and strain the statutory language to accord with our abstract notions of justice and fair play. In our view, if the statutory language is susceptible of two constructions, the rule of liberal constructions should incline the Court to prefer the one which accomplishes the legislative purpose. But where the statutory language will bear one and only one meaning, there is no room for the application of the rule of liberal construction. Howsoever liberally one may construe the word application, it is not possible to regard the written statement of the appellant in Prakash Chandras suit as an application, for it made no request to the court.15. Just as the written statement of the appellant cannot be regarded as an application, so also the resistance to the appeal filed by Prakash Chandra cannot be held to be an application. Counsel for the appellant, however, submits that the appellants second appeal in the High Court would be an application.As we have held that the appellants appeal in the High Court was not an application to the proper court it is unnecessary to decide whether in the suit and in the appeal filed by Prakash Chandra the written statement of the appellant and his resistance to the appeal and his second appeal in the High Court amounted to a step-in-aid in execution of the decree sought to be executed by him.In the first case the decree-holder and the judgment-debtor compromised and agreed that the latter should be given three months time for payment of the decretal sum and that if he failed to pay within the said period the execution should proceed. The court then ordered; "The execution case be struck off for the present". The judgment-debtor did not pay the amount within the agreed period. Then the decree-holder filed an application for execution. On the judgment-debtors objection that it was time-barred, the Allahabad High Court held that the application was one to revive the execution proceedings. The facts of the case are plainly distinguishable from the facts of the case before us. The execution application was not finally disposed of and, in any case, the decree-holder was not at fault.26. In the second case the decree-holder had applied for execution by attachment and sale of certain property. One Kanshi Ram filed an objection that he had a lien on it. The objection was allowed and the proceedings in execution were stayed because the decree-holder had instituted a suit under O.XXI R. 63,Code of Civil Procedure and did not wish to proceed with the execution till the decision of the suit. The suit was decreed, but a little before that the application for exceution was dismissed in default of the decree-holder and the attached property was released. The subsequent application was made to revive the previous application and to sell the property which had already been attached after the decision of the suit. In the meanwhile Kanshi Ram preferred an appeal to the High Court. So the execution court directed that the application be filed for the present. They can be restored when appeals in the High Court are decided. When the appeals were dismissed, the decree-holder applied for the sale of the property which had already been attached. The judgment-debtor then objected on the score of limitation. The Lahore High Court held that the subsequent application was one to revive the previous application (which was dimissed in default). It is true that the previous application was finally disposed of and that too for default of the decree-holder, but it may be recalled that at the request of the decree-holder the execution court had stayed the execution proceedings until the decision of the question of Kanshi Rams lien. The court therefore could not dismiss the execution application for default of the decree-holder before the decision of his suit under Order XXI, Rule 63,Code of Civil Procedure. As the order of the court was not correct, the application was deemed to be pending. Thus understood, the decision would not be helpful to the appellant.27. The third and fourth cases have nothing to do with the question of revival of an execution application. In the last case the execution application was ordered to be dismissed. More than three years thereafter the decree - holder made another application. The judgment-debtor objected on the ground of limitation. His objection was overruled. A learned single Judge of the Madras High Court held that on the facts and circumstances of the case, as construed by him, the previous application was really pending and that the subsequent application fell under Cl. (5) of Article 182. On the facts as construed by him the case becomes distinguishable from the facts of the present case. We should, however, make it clear that we should not be understood to have given our approval to theis so, but the blame lies squarely on him. He could have executed his decree with respect to the half share in the house after the decision of the appeal court. But he did not avail of the opportunity and waited for the decision of the High Court in the appeal and cross-objection filed by Prakash Chandra. He was not vigilant and should suffer the consequences.29. As a result of the foregoing discussion, we are of opinion that the High Court rightly dismissed the fifth application as time-barred. So we dismiss the appeal. But in the circumstances of this case parties shall bear their own costs.