Gopalan v. Abdul Kadir — 1955 DIGILAW 32 (KER)

Judgment :- 1. This appeal arises out of proceedings in execution of the decree in OS No. 145 of 1110 on the file of the District Court, Alleppey. The decree is one for sale of the hypotheca and it was passed on 20.3.1111. It provided a period of 2 months for payment of the decree-debt. The decree-holder was therefore entitled to take out execution only after 20.5.1111. The decree was a registered one and under the Travancore Limitation Act, VI of 1100 (Art. 166), which governs the case, the period of limitation prescribed for execution of such a decree was 6 years. The decree, therefore remained executable till 20.5.1117. The first execution application in the case was, however, filed only on 20.11.1122 and that application was filed by an attaching decree-holder. 2. The Travancore National and Quilon Bank Ltd., which had obtained a decree in OS 122 of 1115 against the decree-holder in OS 145 of 1110 had attached the latter decree on 25.5.1120 and it was the said Bank, as attaching decree-holder, that filed the execution application mentioned above. To escape from the bar of limitation reliance was placed upon the provisions of S. 7, Limitation Act (VI of 1100, Travancore) which provided for suspension of limitation during the disability of the legal representative of a person entitled to bring a suit or to make an application for the execution of a decree. The petition averred that the decree-holder in OS 145 of 1110 died on 15.5.1116 and that his legal representatives were all minors even on the date of the petition. Subsequently the decree in OS 122 of 1115 was assigned in favour of the present appellant and he sought to get himself impleaded in place of the Bank to continue the execution proceedings. On notice of that application being given to the judgment-debtors in OS 145 of 1110, judgment-debtor No. 4 contended inter alia that the execution was barred by limitation. According to the objection petition filed by him the decree-holder in OS 145 of 1100 died on 14.5.1117 and not on 15.5.1116 as stated in the execution petition. On notice of that application being given to the judgment-debtors in OS 145 of 1110, judgment-debtor No. 4 contended inter alia that the execution was barred by limitation. According to the objection petition filed by him the decree-holder in OS 145 of 1100 died on 14.5.1117 and not on 15.5.1116 as stated in the execution petition. Thereafter on 4.1.1125, judgment-debtor No. 4 moved the court by a fresh petition to have the question of limitation heard on the basis that the decree-holder died on 15.5.1116 as mentioned in the execution petition and stating that the question of the correct date of the decree-holder's death and the other objections raised by him to the execution, need be inquired into only in case the execution was found to be not barred on the attaching decree-holder's own showing. This course was agreed to by the present appellant and the lower court after hearing the question of limitation as a preliminary point, held that the execution was time-barred. The present appeal is against that decision. The basis of the decision is that the provisions of the Limitation Act enabling persons under disability to have extended periods of limitation to file a suit or make an application in execution, applied only to those persons and not to their assignees. 3. The Division Bench before whom the appeal originally came up for hearing found that the questions raised by it are of considerable importance and that it was desirable that those questions are decided by a Full Bench of the Court. The learned judges of the Division Bench while holding that it was well settled that the benefit of S. 6 of the Limitation Act could not be extended to the assignees of persons under disability, thought that the decision of this court in Lakshmi Amma v. Kunjukunjamma 1951 K.L.T. 557 to the effect that the benefit of S. 8 of the Travancore Limitation Act (corresponding to S.7 of the Indian Limitation Act) was available not only to persons under disability but also to their assignees supported the appellant's contention. On the strength of that decision it was contended before them that the benefit of S. 7 of the Travancore Limitation Act should not be confined to persons under disability but that it should be extended to their assignees as well. On the strength of that decision it was contended before them that the benefit of S. 7 of the Travancore Limitation Act should not be confined to persons under disability but that it should be extended to their assignees as well. The question whether the benefit under S.7 of the Travancore Limitation Act was personal to those under disability or can be availed of by their assignees is bereft of authority. The further contention raised before the Division Bench that the attaching decree-holder was not in the position of an assignee of the attached decree but was only a representative of the holder of the attached decree, that he executes the attached decree on behalf of the holder thereof and that the period of limitation that applies to him will therefore be the same as that applicable to the holder of the attached decree, was also taken to be not covered by the authority of any decided case. The learned judges accordingly referred the case for decision by a Full Bench. 4. Admittedly, but for S.7 of the Travancore Limitation Act - which has no counter-part in the Indian Limitation Act, 1908 - the execution application giving rise to the appeal was clearly barred by time. The Cochin Limitation Act II of 1079 and the Cochin Limitation Act XII of 1112 which replaced the former contained provisions similar to those enacted in S.7 of the Travancore Limitation Act, VI of 1100 but that was subsequently deleted from Cochin Act XII of 1112 by Act LXI of 1112. S.7 of the Travancore Limitation Act is in these terms: "Where the disability to sue or to make an application for the execution of a decree begins after the time has begun to run, but before the expiration of the prescribed period, or where the person entitled to sue or to make and application for the execution of a decree dies after the time has begun to run, but before its expiration, and his legal representative is, at the date of the death, affected by any disability, the running of the time shall be suspended while the disability continues". As the decree-holder in OS 145 of 1110 is taken to have died on 15.5.1116 before the decree got barred, and all his legal representatives continued to be minors even on the date of the execution petition, the decree was a live one on the latter date. We do not appreciate what difference it would have made even if the decree-holder had died only on 14.5.1117 as contended by judgment-debtor No. 4. In the normal course the decree would have got barred only on 20.5.1117 and therefore remained a live one even on the date when according to judgment-debtor No. 4 the decree-holder died. As pointed out in the order of reference to the Full Bench and as held by the lower court, it is well settled that an assignee of a person under disability is not entitled to the benefit of S.16 of the Indian Limitation Act, 1908 (In the Travancore Act also the section dealing with'legal disability' bears the same number i.e. S. 6). However in 1951 K.L.T. 557 it was held that the benefits of S. 8 were not merely personal to those under disability but also extended to assignees from them. This view was based on the difference between the language of S. 6 and that of S. 8. S. 8 of the Travancore Limitation Act, VI of 1100 corresponded word for word of S. 7 of the Indian Limitation Act, 1908. The language of S. 7 (Travancore) is very similar to the language of S. 8 (Travancore). The Division Bench was, if we may say so, therefore, right in thinking that the said decision supported the contention of the appellant that even assignees are entitled to the benefit of S.7. As there is no provision in the Indian Limitation Act, 1908 corresponding to S.7 of the Travancore Limitation Act, occasions calling for the application of S. 7 of the Travancore Limitation Act would hereafter be few and far between. In view of this and the further fact that the assumption that an attaching decree-holder's position is for all purposes the same or similar to that of an assignee, is, in our opinion, unwarranted, we do not consider it necessary in this case to pronounce upon whether an assignee from a person under disability would be entitled to the benefit of S. 7 of the Travancore Limitation Act. The appellant is in our opinion entitled to succeed on the second of the two points mentioned in the order of reference, that is, that an attaching decree-holder is but a representative of the holder of the attached decree and that as he executes the decree on behalf of the latter, the period of limitation that applies to him will be the same as that applicable to the holder of the attached decree. 5. The true status of an attaching decree-holder vis-a-vis the holder of the attached decree arose for consideration by the Judicial Committee of the Privy Council in Radhakissen Chamria v. Durga Prasad Chamria A.I.R. 1940 Privy Council 167. In that case Their Lordships were called upon to construe the provisions contained in 0. 21, Rr. 2 and 53, Civil Procedure Code Act, V of 1908 and S.19 of the Bengal Public Demands Recovery Act (Bengal Act III of 1913). The provisions in R.53 of 0.21 C.P.C. and those in S.19 of the Bengal Public Demands Recovery Act are similar. We need, however, notice here only R. 53 Cl. (3) and S.19(3) of the respective Acts. R.53(3) states: "The holder 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". S.19(3), Public Demands Recovery Act (Bengal) is as follows: "The certificate holder 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". In the case cited above, the question for decision was whether the holder of a certificate under the Bengal Public Demands Recovery Act who had attached a decree passed in favour of his judgment-debtor and had applied under S.19 of the Act for its execution, was competent, as the representative of the holder of the attached decree, to adjust such decree with the judgment-debtors thereof for a sum smaller than the amount of the decree. The statutory provisions referred to above were all construed by their Lordships. The statutory provisions referred to above were all construed by their Lordships. They said that the certificate-holder was not an assignee of the decree, so as to acquire all the rights of the original decree-holder and that he was not therefore competent, as the representative of the holder of the attached decree, to adjust such decree with the judgment-debtors thereof for a sum smaller than the amount of the decree. It was stated that the intention of the legislature was to make the certificate-holder by a legal fiction, the representative or the agent of the attached decree for the limited purpose of executing the decree, that is, enforcing it by a process of the court and satisfying his own decree out of the proceeds of such execution. Regard being had to the similarity of the concerned provisions of the Civil Procedure Code with the provisions of Bengal Public Demands Recovery Act, it is needless to observe that the position of an attaching decree-holder under the Civil Procedure Code is the same as that of a certificate-holder under the Bengal Act mentioned. Indeed by reference to the history of Cl. 3 of R. 53 O. 21 C.P.C. their Lordships have categorically held that the representative character of the attaching decree-holder is limited to matters in execution of the decree. Referring to Cl. 3 Their Lordships said: "In their Lordships' opinion, the context as explained above is vital, and indicates that the intention of the Legislature was not to clothe the "representative" with all the rights of the holder of the attached decree in the sense of making him an assignee of such rights. This view gains further support from the other wording of R. 3. It does not say that the attaching decree-holder will be "deemed to be" the "holder of the attached decree". This would certainly have been a simpler way of stating the intention of the Legislature if it was to clothe the attaching decree-holder with all the rights of the holder of the attached decree as if he was his assignee. If the certificate-holder in S.19 or the attaching decree-holder in R. 53 were intended to be the full assignees of the rights of the certificate-debtor or of the holder of the attached decree, one would not expect to find the latter's rights preserved for certain purposes, as they are in Cl. (1)(ii) of S.19 and Cl. If the certificate-holder in S.19 or the attaching decree-holder in R. 53 were intended to be the full assignees of the rights of the certificate-debtor or of the holder of the attached decree, one would not expect to find the latter's rights preserved for certain purposes, as they are in Cl. (1)(ii) of S.19 and Cl. (1)(b)(ii) of R. 53. These clauses provide for the right of the certificate-debtor or of the holder of the attached decree to intervene and apply to the court to execute its decree, under certain circumstances. Cls. 4, 5 and 6 of 0.21. R. 53, are not reproduced in the provision of S. 19, Public Demands Recovery Act, and there is in that Act a later Section, No. 26 which provides that the balance of the amount recovered by attachment shall be paid to the certificate-debtor. For all these reasons it appears to their Lordships that the intention of the Legislature was to make the certificate-holder by a legal fiction, the representative or agent of the holder of the attached decree for the limited purpose of executing the decree i.e. enforcing it by process of the court and of satisfying his own decree out of the proceeds of such execution. He was not to be an assignee of the decree, so as to acquire all the rights of the original decree-holder in the decree. Their Lordships are in agreement with the observations in 53 Mad. 796 at 799, where a distinction is drawn between the assignee of a decree and the attaching decree-holder acting as the representative of the original decree-holder under Cl. 3 of R. 53". 6. This view as to the true status of an attaching decree-holder has, of course, been followed by High Courts in India. The latest case we come across on the point is Balwant Singh v. Maharaj Singh A.I.R. 1954 Allahabad 484. It is in recognition of this position that an attaching decree-holder is a representative for a limited purpose, and not clothed with the authority of an assignee of the attached decree, that we thought it bootless to consider whether S. 7 of the Travancore Limitation Act would apply to an assignee. 7. If the closing words of Cl. It is in recognition of this position that an attaching decree-holder is a representative for a limited purpose, and not clothed with the authority of an assignee of the attached decree, that we thought it bootless to consider whether S. 7 of the Travancore Limitation Act would apply to an assignee. 7. If the closing words of Cl. 3 of R. 53 of 0.21 C.P.C. "to be entitled to execute an attached decree in any manner lawful for the holder thereof" are construed as applicable to rules of limitation also, nothing more need be said to reverse the decision of the lower court and hold that the execution petition was not barred by limitation. The words, however, are, not clear in that sense and we do not seek to rest our decision of the appeal on such a construction. We will in due course refer to a decision which would seem to follow that line of reasoning. 8. Having found that an attaching decree-holder's position is not that of an assignee, we shall now consider the nature of his rights to execute the attached decree. Pending the attachment of a decree Cl. 2 of R. 53 of 0.21 C.P.C. entitles the attaching decree-holder as also the holder of the attached decree to execute it, and the court is enjoined to apply the net proceeds of the execution in satisfaction of the decree sought to be executed. Cl. 3 states, as we have seen, the attaching decree-holder shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute that decree. The question is whether the execution by the attaching decree-holder is on behalf of the holder of the attached decree and for his benefit or whether it is in his own right and not as an agent of the holder of the attached decree. The question came up for consideration before Sir Lionel Leach, C.J. and Patanjali Sastri, J. in Nukamma v. Bhansayya A.I.R. 1947 Madras 121 and the learned judges held that an execution application by an attaching decree-holder was in substance an application for the execution of the attached decree by the holder of that decree acting through his representative-in-law and enured for the benefit of the holder of the attached decree. The following words from the judgment of Leach, C.J. may usefully be quoted here: "0.21, R. 53 makes provision for execution when the property attached is a decree. Sub-r. (2) states that where a court makes an order for the attachment of a decree, it shall, on the application of the creditor who has attached the decree or his judgment-debtor, proceed to execute the decree and apply the net proceeds in satisfaction of the decree sought to be executed. Sub-r. (3) says that the holder of a decree sought to be executed by the attachment of another decree shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute the attached decree, "in any manner lawful for the holder thereof". Therefore when the Government filed its applications for execution on the 9th November 1939 and the 22nd March 1943, it was acting and had the right to act, on behalf of the decree-holder. In other words, the applications have to be treated as applications for execution by the plaintiff acting through her representative-in-law". The question that arose for decision in that case was whether the applications by the Government to enforce payment of the court-fee due from a pauper plaintiff by attachment and sale of the decree passed in favour of that plaintiff would enure to the benefit of the plaintiff-decree-holder so as to keep the decree alive for execution by her when her own application happened to be filed beyond 3 years of the decree but within 3 years from the date of the final order passed on the last application by the Government. The answer given, as can be seen from the above quotation, was in the affirmative. When an execution application by an attaching decree-holder has to be treated as an application by the holder of the attached decree himself, acting through his agent or representative-at-law, it does not require much persuasion to hold that the period of limitation applicable to it would be the same as that applicable to an application by the holder of the attached decree. In the case before us, had the legal representatives of the deceased decree-holder applied for execution on the date the attaching decree-holder applied, by virtue of S. 7 of the Travancore Limitation Act, the application would necessarily have been held to be within time. In the case before us, had the legal representatives of the deceased decree-holder applied for execution on the date the attaching decree-holder applied, by virtue of S. 7 of the Travancore Limitation Act, the application would necessarily have been held to be within time. The present application was, therefore, in our opinion not barred by limitation. Anomalies without end would be the consequence of an opposite view. 9. The above Madras decision also does not make it clear whether the words "in any manner lawful for the holder thereof" in Cl. 3 R. 53 applies to rules of limitation. However, in Rambux Nath Mal v. Mansaram Murlidhar A.I.R. 1947 Allahabad 174, Iqbal Ahmad, C.J., and Bind Basni Prasad, J. held that where an application for execution of a decree has been made within the statutory period of limitation by the attachment of a money decree, the attaching decree-holder possesses all the rights which the decree-holder of the attached decree possess and that an application for the execution of the attached decree can be made by the attaching decree-holder even after the expiry of the statutory period of limitation (under S. 48 C.P.C.) for the execution of the decree in which such attachment is made, provided the execution of the attached decree is not barred by time. The judgment states inter alia that when a decree is attached the attaching creditor steps into the shoes of the holder of the attached decree so far at least as the powers of execution are concerned and that the attaching creditor had a right to execute the attached decree for so long as its original decree-holder had. Whether these observations are founded on the concluding words of Cl. 3 quoted above or on the theory that the attaching decree-holder is a representative of the holder of the attached decree, is not clear from the judgment. The case is, however, authority for the position that even if his decree is barred by limitation, the attaching decree-holder can execute the attached decree provided its execution is not barred by time. The fate of an application by the attaching decree-holder to execute the attached decree cannot be different when his own decree is not barred and execution by the legal representatives of the holder of the attached decree would be within time. The fate of an application by the attaching decree-holder to execute the attached decree cannot be different when his own decree is not barred and execution by the legal representatives of the holder of the attached decree would be within time. In other words, standing in the shoes of the legal representatives of the holder of the attached decree, the present appellant is entitled to execute the attached decree so long as they could execute it. 10. In the result, we allow the appeal, set aside the order of the lower court and remit the execution petition back to that court for disposal according to law after due consideration of the other objections raised by judgment-debtor No.4. The appellant will get his costs of the appeal from judgment-debtor No.4. Order accordingly. Allowed.