JUDGMENT
B.P. Griyaghey, J.
1. This Letters Patent Appeal is against the judgment and order passed by the learned single Judge of this Court disallowing the objection under Order XXI, Rule 58 of the Civil P. C. filed by the appellant in the execution of the decree in M J.C. No, 2 of 1970 in the original jurisdiction of the High Court of a decree passed by the High Court in Company Act Case No. 1 of 1958.
2. The brief facts relating to that claim case disallowed by the learned single Judge may be set down as follows :–
3. The Chotanagpur Banking Association went in liquidation. The Banking Company applied for liquidation on 7-1-1958. The High Court of judicature at Patna by order dated 21-8-1958 passed the order for winding up, The winding up process is still going on. The official liquidator filed Money Suits Nos. 5 and 6 of 1958 in the Court of the Sub Judge, Hazaribagih for certain claims against Raja Bahadur Kama-khya Narain Singh of Ramgarh. The suits were transferred to the High Court of Judicature at Patna under Section 45-C of the Banking Regulation Act as it related to a company which was under liquidation by order passed by the High Court. The High Court passed a decree for two items which are relevant here as Items 1-A and 1-B for a total sum of money which is to a tune of about Rs. 15,000,00/-. This decree was passed on 22-12-1961. In the meantime, the High Court had settled the debtors’ list under Section 45-D of the Banking Regulation Act and those two items of debt were settled against the said Raja as a debt. Execution Case No. 7 of 1967 was then filed by the decree-holder in the Sub Judge’s Court of Hazaribagh, but that was also subsequently transferred to the Patna High Court under the said Section 45-C, and was numbered as M. J. C. No. 2 of 1970, the present execution case in wlhich the claim of the objector has been disallowed which is the subject-matter of this appeal. It may be, however, also relevant to mention that previously some properties were given in the execution-petition which property was commonly known as ‘Padma Raj Palace’. The wife of the said Raja, Maharani Lalita Rajya Lakshmi, filed a claim case under Order XXI, R. 58 of the C. P. C., which claim was allowed and that property was released from the execution case. Thereafter the decree-holder, namely, the Chotanagpur. Banking Association (under liquidation) filed a petition in the High Court in the execution case (M. J. C. No. 2 of 1970) to add a new property in the execution case for realisation of the decretal dues, That prayer Was allowed and necessary amendment was made in the execution petition to proceed against the newly added property This prayer was allowed by order dated 13-5-1975. Then on 19-11-1975 the present appellant No. 1 namely Sardaj Badri Narain Singh filed objection under Order XXI, Rule 58 (which was registered as M. J. C. No, 6 of 1975) claiming the newly added property in question on the ground that the same is a property of a religious and Charitable Trust, namely, petitioner No. 2 of that objection petition. It was claimed that long ago, i.e., on 7-9-1950 the Raja Bahadur had created a trust to which this property was dedicated by a registered deed of that date and that the Trust in question is in possession of the property in its own right. Subsequently during the pendency of the hearing of that objection-petition it was on 3-5-1976 that the objector filed a petition before the High Court that after the amendment in the execution petition by substituting a new property, that application for execution in law would be deemed to be a fresh application for execution filed on the date when the newly added property was substituted and that that date being beyond 12 years of the date of the decree, the execution application was barred lay limitation. The appellant-objector pressed that point of limitation to be decided as a preliminary issue in the case. This point was heard and decided by the learned single Judge in that claim case of the appellant. The decree-holder, resisted that objection of the judgment-debtor. It was, however, conceded on point of law that when in an application for execution a new property is added, the execution application shall be deemed to be a fresh application on the date the new property is added and that would be the date relevant for the computation of the period of limitation. Learned single Judge has referred to in his judgment a case of the Supreme Court in Pentapati China Venkanna v. Pentapati Bangararaju, (AIR 1964 SC 1454) which position of law was not disputed by any of the party. The decree-holder,
however, resisted the objection taken by the objector on point of limitation on two grounds. The first ground was that it is beyond the scope of the enquiry in a claim case under. Order XXI, Rule 58 to go into the question of the limitation of the execution case and as such this ground was not available to the objector. The second ground taken by the decree-holder was that at any rate on the facts of the present case the limitation would be saved by virtue of Section 45-O of the Banking Regulation Act in view of that fact that the company was already under liquidation at the time the decree was passed for which the application for winding up was filed on 7-1-1958 and that the period of limitation would stop to run from the date the application for winding up was filed. The learned single Judge has accepted both the grounds taken by the decres-holder and thus overruled the objection of the objector appellant that the execution case was barred by limitation. It is against that order of the learned single Judge that this appeal has been filed by the objector.
4. This appeal has, therefore, to be decided on the self same points of the two grounds mentioned above taken by the decree-holder resisting the objection of the objector on the plea of limitation.
5. As stated above, the first ground on which the objection of the objector was overruled by the learned single Judge was that the plea of limitation was not available to the objector filing an application under Order XXI, Rule 58 of the C. P. C. as it is beyond the scope of the investigation, that is contemplated under that Rule. The relevant provisions of Rule 58 showing the scope of the objection and fine determination thereof run as follows:–
“58. Adjudication of claims to or objections to attachment of, property.– (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions therein contained : … . . … …
(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this Rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit” .. … .. …
The above underlined words of the quoted rule show that the only scope of investigation in a claim petition under that rule is to find out as to whether that property of the execution case which is claimed by the objector is likely to attachment or not. The objector in such a case has to establish that the property belonged to him in his own right and he was possessed of it, That is the only scope of the investigation in such a claim case. The objector has not the power to challenge the decree or that the execution-application of the decree-holder which is levied against the judgment-debtor is barred by limitation or is illegal on any account. The claim of the objector is limited to his claim to the property on his own account claiming that the property in question did not belong to the judgment-debtor. In this view of the matter in a Bench decision of this Court in Thakur Prasad Sah v. Shedem Sah (AIR 1958 Pat 534), the law was laid down that the Court has no jurisdiction while investigating a claim of the objector under Order XXI, Rule 58 to enter into the question of limitation of the execution-application. It was held that the question of limitation was beyond the scope of the enquiry under that rule. It was further decided that the only question at issue in the claim case is as to whether the property was or not at the time of attachment in possession of the judgment-debtor. That is the only issue to be decided in a claim case. Learned Advocate for the appellant has not been able to cite any decision which may run counter to this view expressed in that Bench decision of this Court.
6. The only point that the learned Advocate for the appellant has raised is by relying on Section 3 of the Limitation Act which runs as follows :–
“3. (I) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence… ……”
It is on the basis of this section that it is contended by the learned Advocate that despite the fact that the objector cannot be permitted to raise the plea of limitation, but the said Section 3 places an obligation on the Court itself to dismiss the application which is barred by limitation although the Hmitation has not been set up as a defence. But this contention of the learned counsel is not tenable in view of the spirit of Section 3 aforesaid. The spirit of Section 3 is that the Court can dismiss an application if it is found that it is barred by limitation although the limitation has not been set up as a defence by the contending party. But in the present case it is not the question as that , the contending party, namely the objector, has not set up the defence. In the present case the objector has set up his defence, but the question is as to whether that can be done by the Court while investigating the claim of the objector in the claim case. Since that question of limitation is beyond the scope of the investigation under that Rule 58, the Court investigating the claim cannot invoke the provisions of Section 3 to dismiss the execution application while investigating tbe claim under that Rule 58.
6-A. Learned counsel for the appellant has cited certain authorities for the application of the provisions of Section 3. One is of the Privy Council in Sir Mohammad Akbar Khan v. Mt. Motai (AIR 1948 PC 36) but in that case the matter of Section 3 decided was relating to the question of onus to prove the limitation and, therefore, is not relevant. The second case of this Court in Atul Krishna Glhosh v. Brindaban Naik, (1930) ILR 9 Pat 306 : (AIR 1930 Pat 330) cited by the learned counsel is only to say that the judgment-debtor can at any stage of the pendency of an execution application show that the application is barred by limitation and the Court will have to dismiss the application under Section 3. That is also not relevant. So also the Supreme Court case of Kalipada v. Palani Bala, (AIR 1953 SC 125) cited by the learned counsel is on a different point. The Full Bench decision of the Orissa High Court in Rajkishore v. Kan-gali, (AIR 1972 Orissa 119) is also a case limited to the point that though the judgment-debtor had not raised the plea of limitation, the Court could dismiss the application as barred. That was not the claim case by a third party-objector as is the instant one. Therefore, none of those authorities cited on behalf of the appellant is of any assistance by which it can be said that the executing Court should have dismissed the application for execution in the course of investigation of the claim case under Rule 58 of the C. P. C. The position of law is, therefore, beyond doubt that the execution application cannot be dismissed while investigating a claim of the obiector under Rule 58 of the C. P. C. on such plea being taken by the objector in the claim case. Finding in this respect by the learned single Judge is beyond challenge.
7. Then is the second ground of the de-cree-holder resisting the plea of limitation of the objector on the facts of the case, which ground of the decree-holder is based on Section 45-O of the Banking Regulation Act which runs as follows :–
“45-O. Special period of limitation.–(1) Notwithstanding anything to the contrary contained in Indian Limitation Act, 1908 or in any other law for the time being in force, in computing the period of limitation prescribed for a suit or application by a banking company which is being wound up, the period commencing from the date of the presentation of the petition for the winding up ot the banking company shall be excluded… .. ..”
The objection of the objector-appellant regarding the plea of limitation is that the decree in question which is being executed in the present execution case (M. J. C. No. 6 of 1975) was passed on 22-12-1961 and that the decree-holder had got a fresh property added in the execution-petition by order dated 3-12-1974. Tt is contended that since the addition of another property and the consequent amendment in the execution-petition amounted in law to the filing of a fresh application tor execution on that date 3-12-1974, which is a date beyond a period of 12 years from the date of the decree, the execution-application is barred by limitation. On the other hand, the decree-holder has resisted this plea of the objector on fact that since the decree-holder is a Banking company which went on liquidation and the application for winding up was filed on 7-1-1958, in view of the provisions of the above-quoted Section 45-O, the period commencing from the date of the presentation of the petition for the winding up shall be excluded and that means that the period of limitation shall stop to run from that date. It is claimed that since the application for winding up in the instant case was filed on 7-1-1958 the period of limitation would stop to run tfiere-after, and that since the decree itself was passed in 1961 in the instant case, by application of Section 45-O aforesaid, the time would not have run at all against the decree since the liquidation proceeding is still in process.
8. Learned counsel for the appellant-objector has firstly at the outset tried to contend that Section 45-O woulf not be ap
plicable in the present case as that does not specifically speak of application for execution. Learned counsel contended that the word ‘application’ occurring in that section refers to tne specified applications filed under the Act and not to an application for execution. But this contention of the learned counsel has been made just to be rejected because all the decisions that have been cited at the Bar, which I would instantly refer to, are of cases relating to applications for execution.
9. Learned counsel for the appellant has disputed the application of this section in the present matter on three other grounds. His first ground is that this Section 45-O cannot come in aid to a case where the decree was already barred before the commencement of the winding up proceeding and the enforcement of the new provisions of Section 45-O, which came in operation in December, 1953. But this point is not relevant in the present case because the decree-holder company had gone in liquidation in 1958 and the decree in the present case was passed subsequent to that in 1961 and, therefore, the question of the decree having been already barred by limitation before winding up did not arise. In support of this contention learned counsel for the appellant has cited four authorities, namely, in the cases of Sarkar Dutt Roy & Co. v. Shree Bank Ltd., AIR 1960 Cal 243, Punjab Commercial Bank v. Brij Lal, (AIR 1955 Punj 45J, Official Liquidator v. A. R. Chadha, (1973) 43 Com Cas 376: (1973 Tax LR 2555) (Delhi) and R. C. Abrol v. A. R. Chadha, (1979) 49 Com Cas 77: (1978 Tax LR 2000) (Delhi) (FB). But since that point is not relevant, they need not be discussed. The second point that the learned counsel for the appellant has raised in support of his contention for the non-application of this Section 45-O in the present case is that this section is not contemplated to come in aid in respect of a claim arising or a decree passed subsequent to the date when the company went in liquidation. Learned counsel has contended that the objective of the section which is to stop the running of limitation in case of the company going in liquidation in that when the company goes in liquidation, the official liquidator has to get time to be acquainted about the assets and liabilities of the company and, therefore, some time should be given to him in that respect and, therefore, this provision in this section was made that limitation would not run for such a claim from the date the application for winding up was filed. It was contended by the learned counsel, therefore, that the decree itself was passed long after the winding up process bad started, the official liquidator was already acquainted with the matter and, therefore, he could not have the necessity ot getting acquaintance and, therefore, the limitation would not stop to ruq in such a case and as such this Section 45-O would not be applicable to such a case. In support of this contention, the learned counsel has relied upon a case of the Madras High Court in Messrs. Brahmayya v. Mohammed Rowther, (AIR 1959 Mad 366). On the face of the principles as the objective of the section, as contended by the learned counsel, may appear to be attractive, but the point was finally settled in a decision of the Supreme Court in Sri Bank Ltd. v. Section D. Roy and Co., (AIR 1966 SC 1953) in which by a majority decision such a contention, as has been raised by the learned counsel for the appellant before us, was repelled. It is no doubt true that Wanchoo, 3. who was one of the members of the Bench of three Hon’ble Judges of that case had taken that view as minority view as has been contended by the learned counsel for the appellant before us. wlhich would be found in para 24 of the judgment. It may, however, also be noted that the Hon’ble Judge though took that view on the position of law, but on fact (his Lordship interpreted that all the instalment claims had arisen before the windingup application was tiled and, therefore, on fact, however, his Lordship also made that Section 45-O applicable to that case. This would be found in para 25 of that judgment.
10. Besides that, the majority view of the two other Hon’ble Judges of that Bench was to reject such a plea, as has been taken by the learned counsel for the appellant, on the ground that though the objective of the section might appear so, but as the statute stands it has to be interpreted that the provisions of Section 45-O would be applicable not only to claim or decree passed before the winding up application, but also to such claim arisen or decree passed even subsequent to the winding up application. While rejecting such a contention, ttoat this section would not be applicable to a claim arisen subsequent to the winding up application, Sarkar, J. observed in para 11 as thus:–
“11. I am not inclined to accept this contention. I see no reason wby it should have been intended that debts which fell due before the winding up petition was presented but were not barred on that date could be recovered and not those which became due
thereafter. It (has to be remembered that a liquidator is not always appointed on the presentation of the petition for winding up and it does not infrequently happen that a long time elapses between the two. It has also to be remembered that a liquidator would require quite some time after his appointment to get acquainted with the state of affairs of the company in liquidation and start taking steps for the recovery of its dues. Therefore, there is no reason to think that it was not intended to give the benefit of the Act to a debt accruing to a banking company after presentation of a petition for its winding up”.
Therefore, the Hon’ble Judge in para 12 of the judgment held that the provisions of this section would be applicable not only to the claim arisen before the date of the application for winding up, hut also to ‘he claim arisen subsequently.
11. Another Hon’blc Judge of the Bench Raghubar Dayal, J. also rejected such a contention, as has been raised by the learned counsel for the appellant in the mutant case, and which point was accepted by the High Court in that case. The learned Judge at the end of paragraph 60 in his judgment observed that the High Court was in error is that respect and in para 61 his Lordship observed as follows :—
“It appears to me that the object and intention of the Legislature in enacting Sub-section (1) of Section 45-() was that the period subsequent to the presentation of the petition for winding up be not taken into consideration in computing the period of limitation. The entire period will be excluded from consideration if the litigation had begun to run prior to the presentation of the petition for winding up and the relevant lesser period, i. e., the period commencing from the accrual of the cause of action subsequent to the date of presentation of the petition for winding up of the company would be excluded from the period of limitation which also commences from the accrual of the cause of action”.
The above observation would show that the learned Judge expressed the view that even the period subsequent to the presentation of the petition for winding” up would not be taken into consideration in computing the period of limitation, i. e. the same would be also excluded. Thus, the concluded position of law in this respect, as is the majority view, is that the benefit of the provisions of Sub-section (l) of Section 45-O would be given also to a case where the cause of action had arisen or the decree, (as in the present case) passed was subsequent to the filing of the application for winding up. Therefore, the learned single Judge of this Court in his judgment under, appeal has rightly decided this point also against the appellant.
12. There is, thus no merit in this appeal. It is hereby dismissed with costs. Hearing fee is assessed at Rs. 200/-.
Birendra Prasad Sinha, J.
13. I agree.