Sekh Rahat Husain v. Babu Bhawani — 1966 DIGILAW 157 (ALL)

JUDGMENT G.C. Mathur, J. - This special appeal is directed against the Judgment of a learned Single Judge allowing an execution second appeal, dismissing the objection of the appellant-judgment-debtors to an application for execution filed by the respondent-decree-holder and holding that the application for execution was not barred by time. 2. The only question that arises for consideration in this case is whether the fourth application for execution made by the decree-holder was barred by time or not. The question arises in the following circumstances: - 3. On July 26, 1940, the respondent obtained a decree for a sum of Rs. 1,437/- and odd against the appellants. The first application for execution was filed on August 13, 1941, and was struck off on September 18, 1941. The second application for execution was made on May 5, 1943, but it was dismissed for default on October 22, 1943. On December 6, 1943, one of the judgment-debtors paid a sum of Rs. 35/- to the decree-holder before the court and a receipt for the payment was filed in court. Again, on February 9, 1944, a sum of Rs. 15/- was similarly paid to the decree-holder and a receipt was filed in court. The third application for execution was made on February 8, 1947, more than three years after the dismissal of the second application for execution. The third application was dismissed for default on July 9, 1947. The decree-holder thereupon filed the fourth application for execution in 1950. There is no dispute that the fourth application for execution was filed within three years of the dismissal of the third application. An objection was filed by the Judgment-debtors before the execution court that the third application for execution, not having been made within three years of the dismissal of the second application, was time-barred and, consequently, the fourth application also was barred by time. The decree-holders answer to this objection was that the two payments of Rs. 35/- and Rs. 15/- made on December 6, 1943 and February 9, 1944, respectively were steps-in-aid of execution and saved the limitation for the third application. Obviously, the payment of Rs. 35/- on December 6, 1943, could be of no avail in saving the limitation for the third application for execution as the third application was made more than three years after this payment. Obviously, the payment of Rs. 35/- on December 6, 1943, could be of no avail in saving the limitation for the third application for execution as the third application was made more than three years after this payment. The only question that arose for consideration was whether the payment of Rs. 15/- made on February 9, 1944, could be regarded as a step-in-aid of execution within the meaning of Cl. (5) of Article 182 of the Indian Limitation Act, 1998, so as to save the limitation for the third application for execution. By order dated October 20, 1951, the executing court, relying upon the decision of a Division Bench of this Court in B. Adya Prasad Singh v. Lal Girjish Bahadur Pal, A.I.R. 1933 Alld. 364 held that the payment of Rs. 15/- did not save limitation for the third application for execution and, allowing the objection of the judgment-debtors, it dismissed the execution application. Against this order, the decree-holder preferred an appeal but the appellate court also took the same view and dismissed the appeal. Thereupon the decree-holder filed an execution second appeal in this Court and Kailash Prasad, J. by judgment dated October 10, 1961, allowed the execution second appeal and dismissed the objection of the judgment-debtors with costs throughout, He, however, granted leave to the judgment-debtors to file a special appeal. 4. The case of the decree-holder is that the sum of Rs. 15/- was paid by the judgment-debtors before the court in accordance with Order XXI, Rule 1 (a) of the Code of Civil Procedure and rule 37 of Chapter XI of the General Rules (Civil) then in force. Order XXI, Rule 1 (a) of the Code permits money payable under a decree to be paid into the court whose duty it is to execute the decree. Rule 37 of Chapter XI of the General Rules (Civil), as it stood in 1944, corresponds to the present Rule 313 which runs thus: - "313 - Moneys paid by one party to another in court but not through an officer of the court shall not be entered in the courts registers of accounts. Rule 37 of Chapter XI of the General Rules (Civil), as it stood in 1944, corresponds to the present Rule 313 which runs thus: - "313 - Moneys paid by one party to another in court but not through an officer of the court shall not be entered in the courts registers of accounts. When money is to be paid by one person to another and both are present in court, the money may be passed direct from the one to the other under the sanction of the presiding Judge who shall have a receipt (Form No. 50) executed in his presence, a copy of which shall be filed with the record of the case ......." 5. Form No. 50 for the receipt shows that the presiding Judge has to certify that the payment was made in his presence. Assuming that the payment was made in accordance with these provisions, it has still to be seen whether it amounted to a step-in-aid of execution, as contemplated by ,C1. (5) of Article 182 of the Indian Limitation Act. Clause (5) of Article 182 makes provision regarding the limitation for the making of applications for execution. In the first instance, it provides that an application for execution may be made within three years of the final order passed on a previous application for execution of the decree. Secondly, it provides that an application for execution may be made within three years of an application made in accordance the date of the final order passed on with law to the proper court to take some step-in-aid of execution of the decree or order. We are concerned with the second case. [Before any question can arise for consideration whether a step taken by the decree-holder is a step-in-aid of execution or not, the following three conditions must be fulfilled: - (i) That an application was made by the decree-holder to take a step; (ii) that the application was in accordance with law and was made to the proper court; and (iii) that a final order was passed on the application. What has first to be seen in this case is whether these three conditions have been fulfilled or not]. 6. In our opinion, no application was made by the decree-holder in the present case at the time when the payment of Rs. 15/- was made. Neither Or. What has first to be seen in this case is whether these three conditions have been fulfilled or not]. 6. In our opinion, no application was made by the decree-holder in the present case at the time when the payment of Rs. 15/- was made. Neither Or. XXI, Rule 1 (a) of the Code of Civil Procedure nor rule 313 of the General Rules (Civil) requires the making of any application. No written application, in fact, was made by the decree-holder, nor is there any evidence that any oral application was made by the decree-holder. Kailash Prasad, J., was of the view that, since Rule 313 of the General Rules (Civil) provided that the money may be paid by the judgment-debtor to the decree-holder "under the sanction of the presiding Judge," an application was required for obtaining such sanction and, therefore, it could be presumed that the decree-holder made an oral application to the court to grant such sanction. We are unable to agree with this view. These words contemplate nothing more than that the money should pass hands in the presence of the presiding Judge. The object of Rule 313 (old Rule 37) is that the payment of money by the judgment debtor to the decree-holder should be formally recorded, so that, in the discharge, satisfaction or execution of the decree, the amount paid may be taken into account. In this respect, the payment of money under Rule 313 and the execution of the receipt in Form-No. 50 stand on par with the certification of the payment made out of court and the recording of the payment by the court on such certification. In Raja Shri Prakash Singh v. The Allahabad Bank Limited, A.I.R. 1929 P.C. 19 it was held by the Privy Council that the mere certification by the decree-holder of a payment to him out of court by the judgment-debtor was not an application within the meaning of Art, 181 of the Indian Limitation Act. In that case, a formal written application had been filed by the decree-holder and was headed as "application under Or. XXI, Rule 2, C. P. C." In that application, the decree-holder certified certain payments as having been received and prayed that the court may be pleased to record the same. In that case, a formal written application had been filed by the decree-holder and was headed as "application under Or. XXI, Rule 2, C. P. C." In that application, the decree-holder certified certain payments as having been received and prayed that the court may be pleased to record the same. In spite of this, the Privy Council held that, since the law did not contemplate the making of an application, the certification could not be treated as an application within the meaning of Article 181. Following this decision, a Division Bench of this Court, in B. Adya Prasad Singh's case, A.I.R. 1933 Alld. 364 held that mere certification by the decree-holder of a payment of money under the decree is not an application to take some step-in-aid of execution of the decree within the meaning of sub-Clause (5) of Article 182 of the Indian Limitation Act. A full Bench of the Oudh Chief Court, in Ram Bharose v. Razzan Lal, ILR 7 Lucknow 590 (F.B.) took the same view. These decisions apply to the present case also. The provisions of law referred to above did not require the making of any application by the decree-holder for having the payment of Rs. 15/-recorded and as such there is no warrant for presuming that an oral application was made. In our opinion, in the present case, no application was made by the decree-holder to take any step on the date on which the payment of Rs. 15/- was made by the judgment-debtors and as such, the provisions of Cl. (5) of Article 182 of the Indian Limitation Act are not attracted. 7. Another reason for our holding that the decree-holder is not entitled to save limitation under Cl. (5) of Article 182 is that there is no final order such as is contemplated by that clause. The words "final order" in this clause mean a judicial order. Under the provisions under which the payment of Rs. 15/- is said to have been made, the court is not required to decide anything; it is not required to exercise any discretion. The presiding Judge is not required to consider judicially whether heshould give or withhold permission to make the payment. In fact, the law empowers the judgment-debtor to make the payment to the decree-holder in the presence of the presiding Judge and no sanction or permission of the court is necessary to do so. The presiding Judge is not required to consider judicially whether heshould give or withhold permission to make the payment. In fact, the law empowers the judgment-debtor to make the payment to the decree-holder in the presence of the presiding Judge and no sanction or permission of the court is necessary to do so. He is required merely to see that the money passes hands in his presence and the only thing he has to do is to sign the receipt in token of the fact that the payment has been made in his presence. This does not involve the passing of any judicial order. It is only a ministerial act which the court performs. The presiding Judge performs the same function under this rule as he does in recording payment upon certification by the decree-holder of payment made out of court. In Ram Bharose v. Razzan Lal, ILR 7 Lucknow 590 (F.B.) it was held that an order of the court recording payment upon certification by the decree-holder did not involve the exercise of any judicial function and was not a "final order", as contemplated by Cl. (5) of Article 182. In the present case, there is no written order passed by the court and it cannot be assumed that an oral judicial order was passed when the law did not contemplate the passing of any judicial order. In these circumstances, we hold that no final order, as contemplated by Cl. (5) of Article 182 of the Indian Limitation Act, was passed by the court at the time of the payment of Rs. 15/-. 8. For the reasons given above, we have come to the conclusion that two of the essential conditions for the application of Cl. (5) of Article 182, namely, the making of an application by the decree-holder and the passing of a final order thereon by the court, have not been fulfilled in the present case. It is unnecessary to consider whether the payment amounted to taking a step-in-aid of execution. The decree-holder was therefore, not entitled to any benefit on account of the payment of the aforesaid sum of Rs. 15/- on February, 9, 1944. The third execution application made by him on February 8, 1947, was not made within three years of the passing of the final order on the second application and was clearly time-barred. The decree-holder was therefore, not entitled to any benefit on account of the payment of the aforesaid sum of Rs. 15/- on February, 9, 1944. The third execution application made by him on February 8, 1947, was not made within three years of the passing of the final order on the second application and was clearly time-barred. Since the third application was time-barred, the fourth application was also barred by time. 9. We accordingly allow this appeal, set aside the judgment and order of the learned Single Judge and restore those of the executing court and the first appellate court. The appellants will be entitled to their costs oh this appeal and of the appeal, before the learned Single Judge.