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Calcutta High Court
Raj Gir Sahay vs Ishwardhari Singh And Ors. on 27 March, 1910
Equivalent citations: 5 Ind Cas 660
Author: Mookerjee
Bench: Mookerjee, Holmwood


Mookerjee, J.

1. This is an appeal on behalf of the judgment-debtor against an order of the District Judge of Mozuffarpur by which he allowed execution to proceed on the basis of a decree which was obtained by the respondents against the present appellant in June 1901.

2. On the 19th of November 1901, the record room was destroyed by fire and the original of the decree in question was destroyed at the same time. In March 1902, the respondents made an application to have the decree re-constructed and on the basis of this application the decree appears to have been re-constructed. So far as we can make out, this re-construction was made in the absence of the present appellant. On the 23rd of March 1905, the application out of which the present appeal arises was presented by the decree-holders for execution of the decree which they had obtained.

3. The Munsif dismissed the application for execution. On appeal his judgment has been reversed by the learned District Judge.

4. The first question which requires decision is whether or not the application is barred by limitation. This is a question which does not appear to have been argued in either of the Courts below. Under Section 4 of the Limitation Act, however, we are bound to take notice of it specially as it appears to us that there is no, answer possible to the objection. The decree, as we have already stated, was obtained in June 1901 and the application for execution was not presented till the 23rd March 1905.

5. Under Article 179 of the second Schedule of the limitation Act, an application for execution of decree is to be presented within three years from the date of the decree It has been laid down by this Court in case of Golam Gaffar Mandal v. Goljan Bibi 25 C. 109 that the words date of the decree mean the date which the decree ought to bear under Section 205, Civil Procedure Code, that is, the date of the judgment, so that an application made more than three years from the date on which the judgment was pronounced would be barred by limitation. The present application, therefore, is manifestly barred by limitation, unless the application which was made by the decree-holders to re-construct the decree can be treated as an application in accordance with law to the proper Court to take some step-in-aid of execution of the decree within the meaning of Clause 4 of Article 179. In our opinion, that application cannot be so regarded. It was not necessary for the decree-holders to file a copy of the original decree with the application for execution. This was laid down in the case of Modhoo Dossia v. Nobin Chunder Roy 16 W.R. 25 and the same view has been subsequently adopted by Mr. Justice O’Kinealy in the case of Rajkumar Banerji v. Rajlakhi Dabi 12 C. 441 and by the learned Judges of the Bombay High Court in the case of Raja Ram v. Banaji Mairal 23 B. 311. The Code is perfectly clear on this point. Section 235, Civil Procedure Code, does not require that a copy of the decree is to be attached to the application for execution. Under Section 224, no doubt, a copy of the decree has to be forwarded if the decree is sought to be executed in a Court other than the one which made the decree. When, however, the decree is sought to be executed in the Court which made it, it is not necessary for the applicant to supply a copy of the decree. I he original decree which is in the record-room of the Court is sent for and execution is allowed to proceed on this basis. If the original decree is not in existence, it would be open to the party applying for execution to give secondary evidence of its contents under Section 65 of the Evidence Act, which provides that secondary evidence may be given of the contents of the document when the original has been destroyed or lost. Section 63 then provides that such secondary evidence may consist of oral accounts of the contents of a document given by some parson who has himself seen it. If, therefore, in the present case, the decree has been destroyed and it was not possible for the decree-holders either to obtain a certified copy of the decree or to produce the original, it was nevertheless open to them to present an application for execution, and it would have been open to them to prove the contents of the decree by oral evidence of the description mentioned in Section 63 of the Evidence Act. It was wholly unnecessary for them to apply for re-construction of the decree. Under these circumstances it is impossible to hold that the application for reconstruction was an application of the kind contemplated by Clause 4 of Article 179 of Schedule II of the Limitation Act. On these grounds we must hold that the application for execution is barred by limitation. The view we take, namely, that the application for re-construction of the decree is not an application of the description contemplated by Clause 4 of Article 179 is supported to some extent by the decision of this Court in Raj Kumar Banerji v. Raj Lakhi Dabi 12 C. 441.

6. The result, therefore, is that this appeal, must be allowed, the order of the Court below discharged and the application for execution dismissed. Under the circumstances of the case, we make no order as to the costs.

7. The respondents subsequently applied for review of the above judgment on the ground that notice of the appeal had not been served on them, and that they had, therefore, been prevented from appearing in support of the judgment of the lower appellate Court.

8. Babu Baldeo Narain Singh, for the Petitioners.


9. We have been invited in this Rule to review our judgment in an appeal in an execution case, heard ex parte and decreed in the absence of the petitioners. Our order was made on the 27th March 1907. On the 23rd July 1908, the petitioners filed the present application on the allegation that the processes of this Court had been suppressed, that notices of the appeal had not been served on them, and that it was not till the 15th June 1908 that they were first apprised of the appeal and of its result. On the 21st December, 1908, the present Rule was issued calling upon the appellant to show cause why the appeal should not be re-heard. At the hearing of this Rule, there has been no appearance on behalf of the appellant, and no affidavit has been filed on his behalf to contradict the allegations of non-service of notice made in the petition. The affidavit on the side of the petitioners is, no doubt, somewhat vague, but as the question raised in the appeal was one of some novelty, and as the effect of our decision was to reverse that of the District Judge, we have heard the learned Vakil for the petitioners at full length and have carefully considered the arguments, addressed by him to show that our judgment was erroneous. We shall, therefore, proceed to deal at once with the merits of the question raised in the original appeal.

10. In June 1901, the respondents obtained a decree against the appellant. On the 19oh November 1901, the record room of the Court was destroyed by fire, and the original of the decree in question was destroyed. In March 1902, the respondents applied for reconstruction of the decree. This was done apparently in the absence of the appellant. On the 23rd March 1905 the respondents applied for execution of the decree. The Court of first instance dismissed the application. Upon appeal, the District Judge allowed execution to proceed. It was found, however, on the evidence that the decree as re-constructed was erroneous in two particulars, and as we understand the judgment of the District Judge, he directed execution of the re-constructed decree as varied by him. On behalf of the appellant in this Court, it was argued at the original hearing that the application for execution, was barred by limitation, and this contention prevailed. On behalf of the petitioners, respondents in the appeal, this view has been impugned on the ground that the decree could not be executed till it had been re-constructed, that consequently there was no decree capable of execution till within three years from the date of the application for execution, and that in any view the application for re-construction ought to be treated as a step-in-aid of execution sufficient to save the decree from the bar of limitation. In our opinion, these contentions are erroneous and must be overruled.

11. Under the Limitation Act of 1877, an application for execution of a decree must be presented within three years from the date of the decree, that is, within three years from the date when the judgment was pronounced. The question, therefore, arises whether when a decree has been lost an application for execution can be entertained, because if there is no bar to such an application being made even at a time when the decree has been, destroyed and has not been re-constructed, there is no intelligible principle why the operation of the rule of limitation should be suspended for the benefit of the decree-holder. Now, as pointed out in our original, judgment, the Code of Civil Procedure does not require that a copy of the decree should be annexed to the application for execution. Gunga Gobind v. Makhun Lall 9 W.R. 362; Ramdhum Rukhit v. Punchanun Chuckerbutty 10 W.R. 144; Khettar Mohun Chuttopadhya v. Ishur Chunder Surma 11 W.R. 271; Dhunput Singh v. Lila Nund Singh 11 W.R. 28 : 2 B.L.R. App. 18. There is, therefore, in theory, nothing to prevent a decree-holder from presenting an application for execution even though the decree has been lost or destroyed. The principle applicable, to cases of this description has been thus explained: A judgment is the sentence of the law pronounced by the Court. The judgment necessarily precedes its entry. The entry or record is not the judgment, but merely the best, evidence of the fact that the judgment exists. As a judgment may exist preceding the record-evidence of its existence, so it may continue in full force after this evidence has been lost or destroyed. Hence the destruction or mutilation of the record by no means divests the Court nor the proper officers thereof of authority to issue execution.” Freeman on Executions, Volume I, Section 18; Cheesewright v. Franks (1838) 6 Dowling P.C. 471. No doubt, there are solitary cases for instance Beckham v. Medlach 46 S.W. 402 where it has been suggested that no execution should issue on a lost judgment or decree till the record has been replaced in some mode authorized by law. This view, however, cannot be supported on principle. It is open, to the decree-holder to apply for execution and to prove by secondary evidence the contents of the lost decree, it is unnecessary for him to have the record re-constructed before he applied for execution. (American and English Eneyclopoedia of Law, Volume XI, page 610). No doubt, as pointed oat by this Court in Narsingh Narain Singh v. Harkhu Singh 8 C.L.J. 521, a Court has an inherent power to restore its record when it has been lost or destroyed. Douglas v. Yallop 2 Burrows 722; Sanderson v. Walker 1 My. And Cr. 359; Mclendon v. Jones (1845) 8 Alab 298 : 42 Am. Dec. 640; Freeman on Judgments, Volume I, Section 89; Black on Judgments, Volume I, Section 125; American and English Encyclopaedia of Law, Volume XIX, page 557. But although a Court has inherent power in the case of loss or destruction of a, judicial record to restore such record, it does not follow by any means that execution may not be issued before reconstruction of the record. It is further clear that to prove the contents of the lost judicial record, secondary evidence may be given, and there is no restriction as to the nature of the secondary evidence admissible. This is clearly set forth in the following passage from Green leaf on Evidence, (Volume I, Sections 84 and 509) quoted in Freeman on Judgments, Volume II, Section 407: “if the record is lost and is ancient, its existence and contents may sometimes be presumed, but whether it be ancient or recent, after proof of the lost, its contents may be proved like any other document by any secondary evidence, where the case does not, from its nature, disclose the existence of other and better evidence”. [Black on Judgments Volume II, Section 969; Thurston v. Slatford (1701) 1 Salk 284; Petrie v. Benfield (1789) 3 T.R. 476. To the same effect is the provision in Section 65 of the Indian Evidence Act, Clause (c). We must consequently hold that the application for execution is barred by limitation as it was not made within three years from the date of the decree, that is, the date when the judgment was pronounced. This view is supported to some extent by the observation in the case of Nuzur Banoo v. Hosein Ali Khan (1864) W.R. (Gap) 378 where Bayley and Jackson, JJ., held that a decree-holder is at liberty to prove a lost decree by secondary evidence and get execution. It is worthy of note, however, that upon the main point decided in that case, namely, whether a suit could be maintained on a lost decree, the decision was contrary to that of Pundit and Levinge, JJ., in Imamun v. Hardyal Singh (1864) W.R. (Gap) 301.

12. The only other point which requires consideration is whether the application for reconstruction of the decree may legitimately be treated as an application to the proper Court to take a step-in-aid of execution of the decree. Reliance has been placed on behalf of the respondents upon the case of Kunhi v. Seshagiri 5 M. 141 in which it was ruled that an application by a judgment-creditor, to the Court which passed, the decree for a certificate that a copy of the revenue register of the land is necessary so as to enable him to obtain such copy from the Collector and thereupon, to attach the land, is a step-in-aid of execution. The case relied upon, however, is clearly distinguishable because as pointed out in Gopilandhu v. Domburu 11 M. 336 the principle of that decision is that the step taken, in order that it may be a step-in-aid of execution, must be necessary for purposes of execution. This test was applied in the cases of Rangachariar v. Balaramasami Chetty 21 M. 400 and Rajaram v. Banaji Mairal 23 B. 311. In the view we take, namely, that if was open, to the decree-holders to present an application for execution without a copy of the decree, the application to re-construct the decree was needless, and cannot properly be regarded as an application to take a step-in-aid of execution. If it had been obligatory upon the decree-holders to produce a copy of the decree along with the application for execution, the position, perhaps, might have been different, although as is clear from the cases of Sadashiva Raghunath v. Ramchandra Chintaman 5 Bom. L.R. 394 and Pachiappa Achari v. Poojali Seenan 28 M. 557 even in that contingency there might be room for divergence of judicial opinion.

13. The result, therefore, is that upon a re-examination of the whole question, we must affirm our previous decision and discharge this Rule for review of judgment.

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