Girjawati v. Arvind others — 1978 DIGILAW 87 (ALL)

JUDGMENT K.S. Varma, J. - These two appeals have been filed by Shrimati Girjawati, judgmentdebtor. The facts giving rise to the appeals are that on 2631952, respondents 1, 2 and 3 obtained a final decree for sale against Shrimati Girjawati and Shrimati Jai Devi. The decree was attached by the Civil Judge, Farrukhabad in execution case No. 39 of 1954 (Firm kashi Nath Bhagan Lal vs. Arvind and others). The attachment was made on 971954. on 2131955 the decree holders applied for execution of the decree in the Court of Civil Judge, Hardoi; the case was registered as Miscellaneous Case No. 5 of 1955. On this application the office reported that the decree has been attached by the Farrukhabad Court. The Civil Judge, Hardoi issued notice to the decreeholders in the following words : How can your decree be executed when your decree is attached. From a perusal of the judgment of the appellate Court it appears that the respondents were neither served nor they did appear in response to the notice of court. On 21101955 following orders were passed by that court. Present none. This decree stands attached under order 21, rule 53 CPC in execution case No. 39 of 1954. As such this execution application stands infructuous. Order Case consigned to records. Note in Register No. 3. After this order was passed Miscellaneous Case No. 5 of 1955 was consigned to records. The respondents contested the execution of the decree at Farrukhabad and execution in that Court remained pending from 1955 to 1962. On 851962 attachment against their decree was released. After the release of the attachment, the decreeholders moved second execution application in the Hardoi Court on 1851962 stating that the decree having been released it should be executed. Shrimati Girjawati appeared and stated that by an arrangement between her and her sister Shrimati Jai Devi, the liability to pay the decree had been transferred to Shrimati Jai Devi. Shrimati Jai Devi died and her sons Om Prakash and Satya Prakash were added as judgmentdebtors in the execution application. Smt. Girjawati filed objections under section 47 of the Code of Civil Procedure. The sons of Shrimati Jai Devi, namely, Om Prakash and Satya Prakash also filed objections under section 47 of the Code of Civil Procedure. Shrimati Jai Devi died and her sons Om Prakash and Satya Prakash were added as judgmentdebtors in the execution application. Smt. Girjawati filed objections under section 47 of the Code of Civil Procedure. The sons of Shrimati Jai Devi, namely, Om Prakash and Satya Prakash also filed objections under section 47 of the Code of Civil Procedure. The objections filed by Shrimati Girjawati were registered as Regular Miscellaneous Case No. 9 of 1963 and the one filed by Om Prakash and Satya Prakash was registered as Miscellaneous Case No. 4 of 1964. The Civil Judge, Hardoi consolidated the two cases and decided the objections under section 47 of the Code of Civil Procedure by an order dated 3041964. He allowed the objections and held that the execution application was time barred and, accordingly, no execution could proceed. Aggrieved by the order passed by the Civil Judge, Hardoi, the decree holders filed two execution of decree appeals. The learned District Judge, Hardoi by his order dated 6121965 allowed the appeal and directed that Miscellaneous Case No. 9 of 1963 and Miscellaneous Case No. 4 of 1964 be restored to their original number and the same be disposed of according to law. Against the appellate order, the judgment debtors have filed two execution of decree appeals in this Court. 2. It has been contended by the learned counsel for the judgmentdebtors in both the appeals that the finding recorded by the learned District Judge that the period during which the decree remained attached should be excluded, is incorrect. He contended that the second execution application dated 1851962 was beyond time as it was moved more than six years after the decree. The learned counsel for the appellants further contended that the view taken by the District Judge is not correct and the decision deserves to be set aside. The learned District Judge held that order of the Civil Judge dated 21101955 was, in effect, an order of stay and the purport of the said order was that the decree be not executed as long as it remained attached by the Farrukhabad Court. In my opinion, the line of reasoning adopted by the learned Judge is incorrect. The learned District Judge held that order of the Civil Judge dated 21101955 was, in effect, an order of stay and the purport of the said order was that the decree be not executed as long as it remained attached by the Farrukhabad Court. In my opinion, the line of reasoning adopted by the learned Judge is incorrect. In order to appreciate the point involved in the appeal, it is necessary to quote the relevant provisions of Order XXI, rule 53 of the Code of Civil Procedure : (1) Where the property to be attached is a decree, either for the payment of money or for sale in enforcement of a mortgage or charge, the attachment shall be made (a) If the decrees were passed by the same Court, then by order of such Court, and (b) if the decree sought to be attached was passed by another Court, then by the issue to such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other Court to stay the execution of its decree unless and until (i) the Court which passed the decree sought to be executed cancels the notice, or (ii) the holder of the decree sought to be executed or his judgmentdebotr applies to the Court receiving such notice to execute its own decree. It was contended by the learned counsel for the appellant that the attachment of the decree does not ipso facto stay the execution of the decree. He contended that there was nothing on record to indicate that a request was made for the stay of the execution of the decree. In the absence of such a request, the learned counsel contended that there was no occasion for stay as contemplated by order XXI, rule 53 of the Code of Civil Procedure and hence the provisions of section 15 of Limitation Act were not attracted. The learned counsel for the respondent was unable to place before this court any order of stay such as contemplated by order XXI, rule 53 of the code. The learned counsel for the respondents was also unable to point out to this court whether any request was made by the court at Farrukhabad for the stay of the execution of the decree at Hardoi. 3. The learned counsel for the respondents was also unable to point out to this court whether any request was made by the court at Farrukhabad for the stay of the execution of the decree at Hardoi. 3. The principle underlying the provisions of order XXI, rule 53 of the Code of Civil Procedure is to ensure that the holder of the decree does not himself proceed to execute the decree without the leave of the court making the attachment. Where a decree is attached, the decree is capable of execution by the court which passed it subject to the condition enumerated in order XXI, rule 53 of the Code of Civil Procedure. The said provision does not enact an absolute rule prohibiting the execution of the decree. The lower appellate court has taken the view that the decreeholders are entitled to the benefit of section 15 of the Limitation Act. In order to attract the application of section 15 it has to be shown that the institution of the proceedings had been stayed by an order. The section requires an order which stays the institution of proceedings. In the instant case the learned counsel for the respondents could not bring to my notice any order whereby the execution of the decree had been stayed. In SirajulHaq Khan and others Vs. The Sunni Central Board of Waqf U.P. and others (AIR 1959 Supreme Court, 198) it has been held that an express and clear order of injunction is necessary to attract the application of section 15 of the Limitation Act. As stated earlier, the learned counsel for the respondents was unable to place before this court any express order of injunction. That being so, it is not possible to agree with the learned District Judge that section 15 of the Limitation Act is attracted to the facts of the case. A perusal of the order dated 21101955 also indicates that no order of injunction or stay is inferable from the language of that order. In this view of the matter, section 15 of the Limitation Act has no application and the decision given by the lower appellate court on this aspect of the matter is incorrect. 4. The next question that arises is whether the order of attachment operates as stay of the execution of the decree. In this view of the matter, section 15 of the Limitation Act has no application and the decision given by the lower appellate court on this aspect of the matter is incorrect. 4. The next question that arises is whether the order of attachment operates as stay of the execution of the decree. On a correct interpretation of the provisions of order XXI, rule 53 of the Code of Civil Procedure, I am of the view that the decreebolder of the attached decree is not prohibited from executing or seeking execution of the decree. He is merely prevented from realizing money due under the decree for his own benefit without first satisfying the claims of a decreeholder who had attached the decree in execution of his own decree. The decree is not permanently rendered incapable of execution by reason of attachment nor is the interest of the decreeholder destroyed. This view finds support from the decision given in M. L. M. Mahalingam Chettiar V. Ramanathan Chettiar and ethers (AIR 1940 Privy Council, 173) and I. P. Arumugha Bhakthar V.K. Narasimha Iyengar and another (AIR 1961 Madras 299). 5. Before the lower appellate court one of the points raised on behalf of the respondents was that the execution application dated 1851962 was an application for the revival of the earlier application for execution. The learned District Judge in regard to that argument observed as follows: It is not necessary to decide that point although I must confess that there is much in favour of the argument. If the civil Judge is taken to have deposited the application in 1955, on account of his having been in doubt about the propriety of issuing the process prayed for, he should be deemed to have deposited the case only for in statistical purposes. The learned counsel for the appellants appearing in this Court challenged that the observations quoted above are not correct. I refrain from entering into this question at this stage as the learned District Judge himself has not decided this point although from the observations quoted above, it appears that he seems to be inclined to the view that the second execution application dated 1851962 may be treated as an application for the revival of an earlier execution application. The lower appellate Court would have been well advised to have recorded a considered finding on this aspect of the matter. 6. The lower appellate Court would have been well advised to have recorded a considered finding on this aspect of the matter. 6. For the reasons stated above, I allow both the appeals, set aside the decree passed by the District Judge, Hardoi dated 6121965 and remand the case to that Court with a direction that he should record a categorical finding whether the application dated 1851962 can be treated as application for the revival of the earlier execution application. In the circumstances of the case, the parties shall bear their own costs. 7. The parties to the appeals are directed to appear before the District Judge, Hardoi on 1321978. The office is directed to transmit the record of the case to the District Judge, Hardoi well in advance so that it may be available in that Court on 1321978.