Savitri Devi v. Saraswati Devi — 1973 DIGILAW 59 (PAT)

Judgment S.Anwar Ahmad, J. 1. This appeal by the judgment-debtors is directed against the order of the Courts below holding that the application for execution (Execution Case No. 31 of 1963) filed by the decree-holders-respondents first party was not barred by limitation. 2. That application for execution was filed on the 16th October, 1963. The decree which was sought to be executed was the decree of the High Court, dated the 6th August. 1958, passed in First Appeal No. 236 of 1952 arising out of Money Suit No. 42 of 1951. It was passed in favour of Maheshwar Prasad husband of Mt. Saraswati Devi (respondent No. 1) and father of Suman Prasad (respondent No. 2). Prior to the decree passed by the High Court, respondents Nos. 1 and 2 along with others instituted Title Suit No. 2/22 of 1958/1959 against Maheshwar Prasad for partition of various properties including the decree in Money Suit No. 42 of 1951. The matter was referred to arbitration and on the 12th February, 1960, the suit was decreed in terms of the award, vide order sheet Ex. A/1. By the award the decree in the said money suit was allotted to the share of respondents Nos. 1 and 2 (Schedules 4 and 5 of the award). But before the final decree in terms of the award could be prepared, respondent No. 1 for self and as guardian of her son respondent No. 2 filed an application for execution of the decree of this Court passed in the aforesaid first appeal and Money Execution Case No. 13 of 1960 was started. In that execution case the appellant-judgment-debtor Dasrath Prasad Singh (after whose death his successors have been added as appellants) filed an objection which came to be registered as Miscellaneous Case No. 17 of 1961. By his order dated the 23rd April, 1963. the Additional Subordinate Judge. I Monghyr, held that as no decree in terms of the award had been prepared in the title suit, and respondents Nos. 1 and 2 were not parties to the decree passed by the High Court, they were not entitled to execute the decree in question. By his order dated the 23rd April, 1963. the Additional Subordinate Judge. I Monghyr, held that as no decree in terms of the award had been prepared in the title suit, and respondents Nos. 1 and 2 were not parties to the decree passed by the High Court, they were not entitled to execute the decree in question. It also appears from the certified copy of the order sheet in Money Execution Case No. 13 of 1960 (Exhibit A) that the prayer to amend the execution petition was rejected by order dated the 2nd July, 1963, and the execution case was dismissed as upto that date no decree had been prepared in terms of the award. The final decree in Title Suit No. 2/22 of 1958/1959, in accordance with the award, was prepared, sealed and signed on the 16th September. 1963, and on the 16th of October. 1963, the execution petition (Execution Case No. 31 of 1963) giving rise to this appeal was filed. The main objection taken by the appellant-judgment-debtor was that the execution case filed on the 16th of October. 1963, was barred by limitation and that the application for execution in Execution Case No. 13 of 1960 not being in accordance with law, could not save limitation. Other objections raised on behalf of the judgment-debtor was not pressed in any of the two Courts below and, therefore, require no consideration. 3. It is admitted that if the prior application for execution (Execution Case No. 13 of 1960) had been made in accordance with law, the present execution case (No. 31 of 1963) would not be barred by time under Article 182 (5) of the old Limitation Act which gave a period of three years from the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order. It is admitted that the present application for execution was filed within three years of the final orders passed in the earlier execution case. 4. The Court of appeal below in agreement with the executing Court has come to the conclusion that the decree passed by the High Court was a decree in favour of the joint family which in ordinary course of events was the subject of partition by metes and bounds. 4. The Court of appeal below in agreement with the executing Court has come to the conclusion that the decree passed by the High Court was a decree in favour of the joint family which in ordinary course of events was the subject of partition by metes and bounds. As a matter of fact, in the title suit aforesaid, this decree was the subject-matter of partition and was allowed to the share of respondents Nos. 1 and 2. This position was further clarified by order of the Court dated the 12th February, 1960, by which the suit was decreed in terms of the award. By this order, respondents Nos. 1 and 2 got an interest in the decree under execution in its entirety to the exclusion of any other person. The final decree was prepared in conformity with the order dated the 12th February, 1960 by which the decree sought to be executed became the exclusive property of respondents Nos. 1 and 2, but before the final decree could be prepared, as already stated, an application was made for execution which was dismissed on the 23rd April, 1963, as not maintainable. 5. The only point for determination in this appeal is as to whether the final order passed in Miscellaneous Case No. 17 of 1961, dismissing Execution Case No. 13 of 1960, was an order on an application for execution which was in accordance with law to the proper Court or was it a step in aid of execution of the decree. The Courts below have come to the conclusion that the earlier application for execution was in accordance with law and as such the present execution petition was not barred by time. 6. Mr. Kaushal Kishore Sinha, learned Counsel for the appellants, contended that as the decree of the High Court which was sought to be executed did not contain the names of respondents Nos. 1 and 2, they could not be regarded as decree-holders and had no right to apply for execution of the decree. His further contention was that there being no transfer in favour of respondents Nos. 1 and 2 as contemplated in Order 21, Rule 16 Code of Civil Procedure the earlier petition filed by them could not be regarded as a petition in accordance with law. 7. His further contention was that there being no transfer in favour of respondents Nos. 1 and 2 as contemplated in Order 21, Rule 16 Code of Civil Procedure the earlier petition filed by them could not be regarded as a petition in accordance with law. 7. On the facts of the present case, it cannot be disputed that the decree passed in favour of Maheshwar Prasad was a decree in favour of the joint family, it was made subject of partition and was finally allotted to the share of respondents Nos. 1 and 2 by the order of the Court dated the 12th February, 1960, in pursuance of which a final decree was prepared on the 16th September. 1963. The Court of appeal below relying upon the decision in Akhori Ramsewak Prasad V/s. Saran Singh, (AIR 1937 Pat 607) came to the conclusion that as the debt in the present case was due to the joint family, respondent No. 2 being the son of Maheshwar Prasad was the holder of the decree within the meaning of Order 21, Rule 10, Code of Civil Procedure. But the matter does not stop there. In the instant case, during the pendency of the partition suit, the matter relating to partition of properties was with the consent of parties concerned referred to arbitration and by an award the decree which is sought to be executed was allotted exclusively to the share of respondents Nos. 1 and 2. The contention of Mr. Sinha is that unless the award had been incorporated in the decree it had no legal effect. In support of his submission, learned Counsel relied upon the decision in Seonarain Lal V/s. Prabhu Chand, ( AIR 1958 Pat 252 ). Mr. Prem Lall for the respondents, however, drew my attention to a decision of the Supreme Court in Satish Kumar V/s. Surindar Kumar, ( AIR 1970 SC 833 ) by which the Full Bench decision of the Patna High Court ( AIR 1958 Pat 252 ) was overruled and it was laid down that the award was not a mere waste paper but had some legal effect. It was final and binding on the parties and it could not be said that it was a waste paper unless made a rule of the Court. It was final and binding on the parties and it could not be said that it was a waste paper unless made a rule of the Court. It was observed: "The award does create rights in that property but those rights cannot be enforced until the award is made a decree of the Court. It is one tiling to say that a right is not created, it is an entirely different thing to say that the right created cannot be enforced without further steps ............... A document may validly create rights but those rights may not be enforceable for various reasons..............." It has, therefore to be held that respondents Nos. 1 and 2 acquired a full and complete right by the award which was later on confirmed by the order of the Court. It is also true that the award could not be enforced till a decree in terms thereof had been prepared, but it can be safely said that on the date they applied for earlier execution, the respondents were solely interested in the execution of the decree to the exclusion of everybody else. They got the right toy the order of the Court and it cannot toe said that they were not entitled to file an application for execution. 8. True it is, as has been contended by Mr. Sinha, that there was no assignment or transfer in favour of the respondents, i.e., the case was not covered by Order 21, Rule 16 Code of Civil Procedure, but it cannot be doubted that the application comes within the four-corners of Sec.146, Code of Civil Procedure. Sec.146 came up for consideration before their Lordships of the Supreme Court in Jugalkishore Saraf V/s. Raw Cotton Co. Ltd., ( AIR 1955 SC 376 ). In that case the persons who applied for execution of the decree had got a transfer in their favour during the pendency of the suit but did not apply for bringing their names on the record. The decree which was passed stood in the name of the transferors but the transferees applied for execution. In that case the persons who applied for execution of the decree had got a transfer in their favour during the pendency of the suit but did not apply for bringing their names on the record. The decree which was passed stood in the name of the transferors but the transferees applied for execution. In those circumstances it was held toy their Lordships that a transferee of a debt on which a suit was pending was entitled to execute the decree which was subsequently passed therein under Sec.146, Code of Civil Procedure, as a person claiming under the decree-holder, even though an application for execution by him would not lie under Order 21, Rule 16. According to their Lordships, the original plaintiffs after they had transferred the subject-matter of the suit to the applicants for execution of the decree were not in a better position than benamidars. The real interest vested in the applicants and, therefore, they were fully entitled to execute the decree. In the words of their Lordships: ".....The respondent company were, after the transfer, the owners of the debt which was the subject-matter of the suit and the legal incidents thereof and consequently were the real owners of the decree. The respondent company derived their title to the debt by transfer from the transferors and claimed the same under the latter. When the respondent company became the owner of the decree immediately on Its passing they must, in relation to the decree, be also regarded as persons claiming under the transferors. The respondent company would not have become the owner of the decree unless they were the owners of the debt and if they claimed the debt under the transferors they must also claim the relative decree under the transferors as accretions, as it were, to their original right as transferees of the debt. In my opinion, the respondent company are entitled under Sec.146 to make the application for execution which the original decree-holders could do." In Saila Bala Dassi V/s. Nirmala Sundari Dassi, ( AIR 1958 SC 394 ), their Lordships while referring to the above decision in Jugalkishore Sarafs case ( AIR 1955 SC 376 ) further held that Sec.146 was introduced for the first time in the Code of Civil Procedure. 1908, with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally so as to advance justice and not in a restricted or technical sense. In the instant case also, as has already been pointed out toy the award which was accepted by the Court by its order dated the 12th February, 1960, the respondents were the only persons who could be held to be entitled to apply for execution of the decree more so because, as found by the Courts below, the debt was a joint family debt and Maheshwar Prasad was representative or karta of the joint family. Therefore. Respondents Nos. 1 and 2 can very safely be held to be claiming under the original decree-holder Maheshwar Prasad in whose name the decree of the High Court was passed. 9. In coming to the conclusion as to whether the application for execution was in accordance with law the other point to toe seen is whether the application filed by the respondents fulfilled the requirements of Order 21. Rules 11 to 14, Code of Civil Procedure. The finding of the learned Additional District Judge is that as the Court had admitted the application for execution and taken steps upon that application, it cannot be doubted that the requirements of Rules 11 to 14 of Order 21 had been complied with. Counsel for the appellants has not submitted anything before me to the contrary. Thus, it is clear that the application for execution filed by them fulfilled the requirements of Order 21, Rules 11 to 14, and it has to be held that the application in question was in accordance with law. 10. Mr. Sinha also contended that as the final decree in accordance with the order of the Court, dated the 12th February, 1960, had not been passed in terms of the award, the application for execution should be held to be not in accordance with law. I am not in a position to accept this submission of learned Counsel. A distinction must always be made between the right of a person to a certain property and the right to get the relief in respect of that property. I am not in a position to accept this submission of learned Counsel. A distinction must always be made between the right of a person to a certain property and the right to get the relief in respect of that property. In the instant case, as the award of the arbitrator had been approved by the Court and a decree was directed to be prepared, the respondents did get a right to apply for execution. The fact that they could not get relief until the final decree had been prepared would not make the application not "in accordance with law". In Jogendra Prasad Narayan Singh V/s. Mangal Prasad Sahu, (7 Pat LT 330) = (AIR 1926 Pat 160) it was held that an application for execution was in accordance with law within the meaning of Article 182 (5) of Schedule I to the Limitation Act if the particulars required by Rules 11 to 14 of Order 21. Code of Civil Procedure, were mentioned in the application. In the instant case, as in that case, it was admitted that the particulars required by law were mentioned in the application for execution. In Mt. Bibi Aisha V/s. Mahabir Prasad, (ILR 6 Pat 440) = (AIR 1927 Pat 324) the decision in the case of Jogendra Prasad Narayan Singh, (7 Pat LT 330) = (AIR 1926 Pat 160) was relied upon and it was held that if the particulars required by Order 21, Rules 11 to 14, were mentioned in the application for execution, the application was "in accordance with law". In the case of Bibi Aisha some of the decree-holders had died and their heirs who had been substituted did not produce the succession certificate. On the objection of the judgment-debtor, the application for execution was dismissed. It was held: "An application without a succession certificate is perfectly in order; only no relief can be granted until the succession certificate is produced." The same view was reiterated by this Court by another Division Bench in Prahlad Rai Tulsian V/s. Kumar Daulat Singh, ( AIR 1964 Pat 514 ). In that case also Counsel for the appellant Mr. It was held: "An application without a succession certificate is perfectly in order; only no relief can be granted until the succession certificate is produced." The same view was reiterated by this Court by another Division Bench in Prahlad Rai Tulsian V/s. Kumar Daulat Singh, ( AIR 1964 Pat 514 ). In that case also Counsel for the appellant Mr. Kaushal Kishore Sinha appeared and his contentions were accepted by the Court in the following words: "The expression in accordance with law, in my opinion means that the contents of the application as well as the manner in which it is presented must fulfil the requirements of law, and if an application fulfils those requirements, it must be said to have been made in accordance with law, even though it may be a very bad case on merits. The question of bona fide or mala fide does not arise for determining the question whether an application has been made in accordance with law or not. It was pointed out by the Judicial Committee in Khalil-ur-Rahman Khan V/s. Collector of Etah, AIR 1934 PC 14 that, under Article 182 (5) of the Limitation Act, it is sufficient to show that an application was made in accordance with law to the proper Court for execution or to take some steps in aid of execution, and it is not further necessary to show that such an application had been made with bona fide intention to execute the decree or to take such step, and merely to keep the decree alive." In that case the property was sold in execution of the decree and purchased by the appellant and the sale was confirmed. Later on, the sale was set aside as the appellant did not file the necessary stamp for preparation of the sale certificate and the execution case was dismissed for default. An application was filed for recalling the order of dismissal of the execution case. That application was also dismissed. The appellant thereafter filed a civil revision before this Court. It was dismissed in limine. A fresh application for realisation of the decretal dues was filed. An application was filed for recalling the order of dismissal of the execution case. That application was also dismissed. The appellant thereafter filed a civil revision before this Court. It was dismissed in limine. A fresh application for realisation of the decretal dues was filed. It was held that the fresh application for execution was not barred by time as the decree-holder (appellant) was entitled to take the entire time taken by the Court in disposing of his application under Sec.151, Code of Civil Procedure, for recalling the order of dismissal of the execution case. He was also entitled to take the benefit of time taken in the civil revision application and the period of limitation would be counted from the date when the application in civil revision was dismissed by this Court. If, as has been held in the case of Prahlad Rai Tulsian, ( AIR 1964 Pat 514 ), an application made in accordance with law amounts to taking steps in aid of execution, the present case stands on a far better footing. The Courts below were right in holding that counted from the last order passed on the first execution petition, the present application for execution was not barred by limitation. A similar view was expressed by another Bench of this Court in Darogi Mandal V/s. Kameshwar Singh Bahadur. ( AIR 1957 Pat 299 ) wherein it was laid down that an application for execution would be in accordance with law if it is in accordance with the rules and procedure prescribed therefor, and it does not cease to be such an application, even though subsequently on an adjudication on the merits of the case, the Court rejects the relief for which it prays. The fact that subsequent enquiry may show that the execution application must fail is no reason for holding that it is not in accordance with law, when on the face of if it is so. 11 From what has been stated above, it is clear that the application filed by respondents Nos. 1 and 2 was in accordance with law as has been very rightly held by the Courts below and the present application for execution cannot be held to be barred by time, Mr. 11 From what has been stated above, it is clear that the application filed by respondents Nos. 1 and 2 was in accordance with law as has been very rightly held by the Courts below and the present application for execution cannot be held to be barred by time, Mr. Sinha relied upon the decisions in Amrit Lal V/s. Murlidhar, (AIR 1922 Pat 188), Bhekdhari Singh V/s. Sri Ramchanderji, (AIR 1931 Pat 275) and Firm Johar Mal Paran Ram V/s. Bindeshwari Prasad Singh, (AIR 1937 Pat 522). None of these lay down any law to the contrary. In the, case of Amrit Lal, (AIR 1922 Pat 188) an application for transfer of the decree was riot held to be a step in aid of execution. In Bhekdhari Singhs case (AIR 1931 Pat 275) it was held that before an application could be said to be in accordance with law, it must not only fulfil the requirements of the Code of Civil Procedure but it must also be filed for a relief which could be granted by the executing Court. The decision in the case of Firm Johar Mal Paran Ram, (AIR 1937 Pat 5221 also lays down that the words "in accordance with law" mean compliance not only with the procedure laid down in the Code of Civil Procedure but it also includes the power of the Court to grant a relief. No such point arises for consideration in the present case. In the instant case it is admitted that in the earlier execution application the executing Court was fully competent to grant the relief prayed for. The above decisions, therefore, do not apply to the facts of the present case. In the result. I hold in agreement with the Courts below that the application for execution filed by respondents Nos. 1 and 2 was not barred by limitation. 12. The appeal is, therefore dismissed and the orders passed by the Courts below are affirmed. There will be no order for costs so far this Court is concerned.