Firm Rambux Nath Mal v. Firm Mansaram Murlidhar — 1946 DIGILAW 146 (ALL)

JUDGMENT Bind Basni Prasad, J. - This is an appeal from an order passed by the learned Civil Judge of Cawnpore allowing the objection of the judgment-debtor of an attached decree. We have arrived at the conclusion that this appeal should be allowed. The material facts are as follows : 2. On 1-7-1927, Firm Earn Bus Nath Mal (hereinafter referred to for the sake of brevity as Nath Mal), the appellant in this case, obtained a money decree in Suit NO, 1975 of 1927 from the Court of the Judge, Small Causes, Cawnpore, against Firm Ramdin Hazari Lal. Firm Ramdin Hazari Lal held a money decree, No. 227 of 1920, against Firm Mansa Ram Murli Dhar (hereinafter referred to for the sake of brevity as Mansa Ram) from the Court of the Judge, Small Causes, acting as Civil Judge. It was affirmed in appeal by the High Court on 35-6-1929. See Ram Din Hazari Lal Vs. Mansa Ram Murlidhar, AIR 1929 All 890 3. On 22-8-1932, Nath Mal applied for the execution of decree in suit No. 1975 of 1927 by the attachment of the money decree NO. 227 of 1920, The attachment was made according to the law and the execution application was dismissed on 9-8-1933, with an express order that the attachment of the decree shall subsist. 4. There was another application for the execution of decree NO. 1975 of 1927, on 17- 4-1935, with the request that the decree should be transferred to Nagaon, district Jhansi. That application was dismissed on 24-8-1935. 5. On 8-7-1937, Nath Mal applied, as the attaching creditor, for the execution of decree NO. 227 of 1920 praying that the decree be realised by the arrest of Earn Saran, proprietor of Firm Mansa Ram Murlidhar Ram Saran deposited 1/12th of the decretal amount and grayed for the stay of the execution under the Temporary Postponement of Execution of Decrees Act (U.P. Act 10 [x] of 1937). This was granted and on 23-8-1939, the execution record was consigned to the record room. 6. The Temporary Postponement of Execution of Decrees Act expired on 31-12-1940, and on 7-3-1941, Nath Mal prayed that the attached decree NO. 227 of 1920 be transferred to the Court of the Civil Judge for execution. The judgment-debtor Ram Saran filed an objection raising various pleas including the plea of 12 years limitation. 6. The Temporary Postponement of Execution of Decrees Act expired on 31-12-1940, and on 7-3-1941, Nath Mal prayed that the attached decree NO. 227 of 1920 be transferred to the Court of the Civil Judge for execution. The judgment-debtor Ram Saran filed an objection raising various pleas including the plea of 12 years limitation. The objection remained pending for about two years and on 17-7-1943, it was dismissed and the decree was transferred to the Court of the Civil Judge. 7. On 11-10-1913, Nath Mal, as attaching creditor, applied to the Civil Judge for the execution of the attached decree No. 227 of 1920 by the sale of certain immovable properties belonging to Mansa Ram. Thereupon Mansa Ram made an objection to the execution of the decree. A large number of grounds were taken, but most of them were abandoned and only the following two were pressed before the learned Civil Judge: (1) That on 11-10-1943, when the last application for the execution of decree No. 227 of 1920 was made, not only that decree but also decree No. 1975 of 1927 was barred under S. 48, Civil P.C. by the 12 years rule of limitation. (2) That as only decree No. 227 of 1920 had been transferred from the Court of the Judge, Small Causes, to that of the Civil Judge and decree NO. 1975 of 1927 was not transferred, execution could not proceed on the application dated 11-10-1943. 8. The learned lower Court held that the application for the execution of the attached decree No. 227 of 1920 was within time, but as decree No. 1975 of 1927 in which decree NO, 227 of 1920 was attached was barred by the 12 years rule of limitation, so the execution application dated 11.10-1943, was also time-barred and the execution could not proceed thereupon. The second ground taken by the judgment-debtor was repelled by the learned Civil Judge. 9. The decree-holder comes in appeal and assails the view taken by the learned lower Court. 10. The learned lower Court has lost sight of the fact that the present application dated 11-10-1943, for the execution of decree No. 227 of 1920 is a continuation of the execution proceedings initiated by the application dated 8-7-1937, by which the attached decree No. 227 of 1920 was sought to be executed. 10. The learned lower Court has lost sight of the fact that the present application dated 11-10-1943, for the execution of decree No. 227 of 1920 is a continuation of the execution proceedings initiated by the application dated 8-7-1937, by which the attached decree No. 227 of 1920 was sought to be executed. The execution proceedings initiated on 8-7-1937 were stayed at the Instance of the judgment-debtor, Mansa Ram, under the provisions of the U.P. Temporary Postponement of Execution of Decrees Act. The proceedings had not terminated. The record was consigned to the record room with the intention of the proceedings being revived when the stay order was lifted. Within nine weeks of the expiration of the Temporary Postponement of the Execution of Decrees Act, the appellant applied for the continuation of those proceedings by the transfer of the decree to the Court of the Civil Judge. It was owing to the objection filed by the respondent Firm Mansa Ram that the case remained pending for about two years in the Court of Judge, Small Causes, acting as a Civil Judge, and it was on 17-7-1943, that the decree could be transferred for execution to the Court of the Civil Judge. Within about three months of this order, the decree-holder applied for the execution of the attached decree, Having regard to the provisions of S. 5, Temporary Postponement of Execution of Decrees Act (U.P. Act 10 [x] of 1937), it is clear that the execution application dated 11-10-1943, for the execution of decree NO. 227 of 1920 was within time. No doubt on that date, viz. 11-10-1943 no application for the execution of decree No. 1975 of 1927 could be made as it would have been time barred, but the appellant did not apply for the execution of decree NO. 1975 of 1927. The application was for the execution of the attached decree NO. 227 of 1920. By the attachment of this decree, the attaching creditor had stepped into the shoes of firm Ramdin Hazari Lal so far at least as the powers of its execution were concerned. The attaching creditor had a right to execute the attached decree for so long as its original decree-holder had. 227 of 1920. By the attachment of this decree, the attaching creditor had stepped into the shoes of firm Ramdin Hazari Lal so far at least as the powers of its execution were concerned. The attaching creditor had a right to execute the attached decree for so long as its original decree-holder had. Where an application for the execution of a decree has been made within the statutory period of limitation by the attachment of a decree, an application for the execution of the attached decree can be made even after the expiry of the statutory period of limitation for the execution of the decree in which such attachment is made, provided there is limitation for the latter. To take an example, suppose an application for the execution of a decree is made within 12 years by the attachment and sale of some property and the attachment is made accordingly. It is obvious that further action can be taken by the decree-holder for the sale of the attached property even after the expiry of the period of limitation. In the same way if in the execution of any decree, a money decree is attached, the attaching creditor can execute the attached decree for so long as there is limitation for the execution of the attached decree. 11. The learned Civil Judge has relied upon AIR 1935 508 (Lahore) Devi Das v. Mahomed Akbar Khan ('12) 9 A.L.J. 365 : 34 All. 396 : 14 I.C. 172, Khetpal Singh v. Tikam Singh and Saklu Chaudhari and Another Vs. Harbansdeo Rai, AIR 1926 All 660 A perusal of these cases will show that their facts are distinguishable from those of the present one. In none of these cases was there any attachment of decree. None of them lay down that for the execution of the attached decree it is essential that the decree in the execution of which such attachment was made should also be within time. All that they lay down is that an application for transfer of a decree for execution by another Court is not a substantive application for execution though according to Saklu Chaudhari and Another Vs. Harbansdeo Rai, AIR 1926 All 660 an application for transfer of decree can be treated as an application for taking a step in aid of execution. We are unable to see how these rulings help the judgment-debtor's case. Harbansdeo Rai, AIR 1926 All 660 an application for transfer of decree can be treated as an application for taking a step in aid of execution. We are unable to see how these rulings help the judgment-debtor's case. It is not disputed that the period of limitation for the execution of the attached decree No. 227 of 1920 had not expired on 11th October 1943. Sub-rule (3) of O. 21, R. 53, Civil P.C. provides as follows: The bolder of a decree sought to be executed by the attachment of another decree of the nature, specified in sub-r. (1) shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof. 12. The learned Civil Judge has not rightly interpreted this provision of the law. He has remarked that an attaching creditor does not acquire all the rights open to the decree-holder of the attached decree and has arrived at the conclusion that the attaching creditor cannot execute the attached decree after the expiry of the limitation of his own decree. We do not agree with this. There can be no doubt that for the purposes of executing the attached decree the attaching creditor possesses all the rights which the decree-holder of the attached decree possesses and he can execute that decree for as long as the decree-holder of the attached decree can under the law execute it. When the period of limitation for the execution of the attached decree No. 227 of 1920 had not expired on 11th October 1943, it cannot be held that the application made by Nath Mal on that date was time-barred. 13. For the reasons given above, we allow the appeal, set aside the order passed by the lower Court and dismiss the objection filed by firm Mansa Ram Murli Dhar. The appellants shall have the costs of both the Courts from the respondents. The record shall forthwith be returned to the lower Court to proceed with the execution in accordance with the law.