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
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
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