Case: Anandilal and Another Vs. Ram Narain and Others

Facts are somewhat complicated but it is necessary to disentangle them to bring out the point in controversy. One Ghasiram, the predecessor-in-title of the present respondent No. 1 Ram Narain obtained a decree for Rs. 5, 548.18 p. from the Court of the District Judge, Ujjain against one Bheraji, the predecessor-in-title of respondents Nos. 2 and 3 Chunnilal and Anandilal, now the Judgment-debtors. The decree was affirmed in appeal by the Gwalior High Court on April 5, 1938. During the pendency of the appeal, the High Court stayed execution of the decree under order XLI, r. 5 of the Code on condition that the appellants-defendants furnished security for the due satisfaction of the decree. Ratanlal, father of the two appellants Anandilal and Jankilal, executed a surety dated August 3, 1927. Against the decree passed by the High Court, the defendants preferred a revision before the Judicial Committee of the Gwalior State which Game to be dismissed on February 14, 1941. While the revision was pending before the Judicial Committee, the decree-holder Ghasiram put the decree in execution against the judgment-debtors as also against the surety on February 23, 1939 for attachment and sale of their immovable properties. It appears that some houses and certain zamindari lands of the surety Ratanlal were attached in execution of the decree. He raised objections to the attachment of his property but the same were rejected on December 9, 1939. Against the order dismissing his objections, the surety Ratanlal filed an appeal before the Gwalior High Court which was dismissed on July 22, 19 40. He then filed a Miscellaneous Appeal before the Judicial Committee of the Gwalior State.It is common ground that in that appeal the Judicial Committee passed an interim order dated August 16, 1940 directing that until further orders the properties attached in execution shall continue to remain under attachment but further proceedings for the sale thereof shall remain stayed. On November 24, 1944 the Judicial Committee dismissed the said appeal and consequently the interim stay stood dissolved. Thereafter, the present respondent No. 1 Ram Narain appears to have purchased the decree from the heirs of the original decree-holder and the execution proceedings were resumed. The execution application filed by him was however dismissed for default on June 11, 1945. It was restored on December 14, 1946 but was again dismissed for default on January 21, 1954 as the counsel for the decree-holder stated that he had no instruction. Thereafter, a fresh application for execution was filed by the decree-holder on February 18, 1954. This application was opposed by the surety Ratanlal inter alia on the ground that it was barred by limitation having been filed beyond the period of 12 years prescribed by 13 s. 48 of thequestion is whether respondent No 1 Ram Narain, the assignee-holder, was entitled to exclusion of the period from August 16, 1940 to November 24, 1944 under s 15 (1) of the Limitation Act for computation of the period of 12 years prescribed under s. 48 of the Code. The District Judge, Ujjain rejected the objection raised by the appellants holding that although the stay of execution was partial in as much as only sale of the attached properties had been stayed by the Judicial Committee, the decree-holder was entitled to the benefit of s 15 (1). The appellants preferred an appeal before the High Court which was allowed by the learned Single Judge by his order dated February 9, 1962. The learned Single Judge held that an order of partial stay like the one in question granted by the Judicial Committee which only postponed the sale of the attached properties did not have the effect of making the decree inexecutable and therefore s. 15 (1) of the Limitation Act. was not attracted. He understood the decision of Grille, C.J. and J. Sen, J. in Sitaram &Ors. v. Chunilalsa as laying down that s. 15 (1) was applicable only when there is absolute stay of execution.Aggrieved by the decision of the learned Single judge, respondent No. 1 preferred a Letters Patent Appeal which was referred by a Division Bench to a Full Bench as the question whether a partial stay was within s. 15 (1) or the Limitation Ac t was of considerable importance. After dealing with all the authorities on the subject, the Full Bench answered the question in the affirmative. It was of the view that the Limitation Act like any other enactment must receive a construction which the language in its plain meaning is capable of bearing and that there was no justification for placing a narrow and restricted construction on the word, "execution" occurring in the phrase "execution of the decree" in s. 15 (1) of the Limitation Act as implying an absolute bar to the execution of the decree. According to the Full Bench, such a construction was not warranted as it would involve reading into the section words such as "totally. wholly, as a whole, or by all possible means" which are not there. According to its plain language, it held, that s. 15(1) did not exclude a partial stay of execution. After referring to several decisions of different High Courts, the Full Bench particularly placed reliance on the decision of the Calcutta High Court in Sreenath Roy v. Radhanath Mookerjee holding that the words "execution of the decree" mean enforcement of the decree by what is known as by any of the "processes of execution". It accordingly. held that the word "execution" in s. 15 (1) must be construed in a broad sense taking in all or any of the various processes of execution and observed that the decision in Sitarams case, supra, does not take a contrary view . The Full Bench therefore held that the decree-holder was entitled to the exclusion of the period from August 16, 1940 to November 24, 1944 under s. 15(1) of the Limitation Act in reckoning the period of 12 years prescribed by s. 48 of the Code. We concur with the view expressed by the Full Bench.It is well settled that s. 48 of the Code was controlled by s. 15 (1) of the Limitation Act. S. 48 of the Code enacted a rule of limitation and prescribed a period of 12 years for an application for execution of decrees and orders. It has since been repealed by s. 28 ofthe Limitation Act, 1963 which enacts that "in theCode of Civil Procedure, 1908, (Act V of 1908) s. 48 shall be omitted". In its place a new provision Art. 136 has been introduced and that prescribes "for the execution of any decree other than a decree granting a mandatory injunction) or order of any Civil Court a period of 12 years, etc. Thus, the substance of s. 48 continues to be the la w and for that reason, and also for the reason that with regard to pending applications, the law as laid down in the decisions interpreting s. 48 might have to be referred to, it is necessary to give reasons.

Reasoning: We feel that there is no, justification for placing a rigid construction on a beneficent provision like s. 15(1) of the Limitation Act. It is not necessary for us to go into the history of the legislation which has been dealt with at length in many of the decisions laying down that s 48 of the Code is controlled by 3. 15(1) of the Limitation Act. All that we need say is that both the enactments have throughout been treated as supplementary to each other, and concern with procedural law. It is also true that in construing statutes of limitation considerations of hardship and anomaly are out of place. Nevertheless, it is, we think, permissible to adopt a beneficent construction of a rule of limitation if alternative constructions are possible. It ;9 plain on the terms of s. 15(1) that the word "execution" appearing in the collocation of words "the execution of which has keen stayed" must be construed in a liberal and broad sense . As observed by the Calcutta High Court in Sreenath Roys case, supra, the words "execution of the decree" mean the enforcement of the decree by what is known as "process of execution".Agreeing with the Full Bench, we are inclined to the view that the word "execution" in s. 15(1) embraces all the appropriate means by which a decree is enforced. Ot includes all process and proceeding in aid of, or supplemental to, execution. We find no rational basis for adopting a narrow and restricted construction on a beneficent provision like the one contained in s. 15(1). There is no reason why s .15 (1) should be given a restricted meaning as allowing the benefit to a decree-holder where there is a complete or absolute stay o f execution and not a partial stay i.e. a stay which makes the decree altogether inexecutable. Nor can we subscribe to the proposition that in cases of partial stay, the benefit under s. 15(1) can be had only where an execution application is directed against the same judgment-debtor or the same property, as against whom an execution was previously stayed. Stay of any process of execution is therefore stay of execution within the meaning of the section. Where an injunction or order has prevented the decree-holder from executing the decree, then irrespective of the particular stage of execution, or the particular property against which, or the particular judgment-debtor against whom, execution was stay ed, the effect of such injunction or order is to prolong the life of the decree itself by the. period during which the injunction or order remained in force. The majority view to the contrary taken-by some of the High Courts overlooks the well settled principle that when the law prescribes more than one modes of execution, it is for the decree-holder to choose which of them he will pursue.