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1980 DIGILAW 18 (BOM)

TALAKCHAND JAYACHAND DOSHI by his heirs SHRIPAL TALAKCHAND DOSHI v. BHAICHAND GAUTAMCHAND DOSHI since deceased by his heirs RAJENDRA BHAICHAND DOSHI

1980-01-16

R.A.JAHAGIRDAR, SUJATA V.MANOHAR

body1980
JUDGMENT JAHAGIRDAR J. - [After negativing the contentions regarding non-registration of the decree within time as also the objection as regards the power of attorney in paragraphs I to 5, the Judgment proceeds]- 6. The most substantive challenge which was made by Mr. Pinge to the maintainability of the Darkhast was one based upon the alleged bar of limitation. It is submitted that the Darkhast which was filed on 10th of December 1968 is hopelessly barred by time considered from any angle. The basis of this argument is that under the Limitation Act of 1963, the period of limitation prescribed for an execution application under Article 136 is twelve years. The starting point of the period of limitation, in so far as it is relevant for the purpose of this appeal, is the time when default was made in making the payment of money as required by the decree. Mr. Pinge says that under the decree which is sought to be executed, the entire decretal amount became payable as soon as there were defaults in the payment of six instalments. According to him, such defaults had taken place in the year 1954 itself and, theref9re, this execution application filed in the year 1968 is barred by time. Though there were part payments from time to time upto the year 1956 and though there was an acknowledgment in March 1961, these part payments and acknowledgment will not give any advantage to the decree holder because the Limitation Act of 1963 has done away with the provisions contained in sections 19 and 20 of the Limitation Act of 1908. Under the said sections of the Limitation Act of 1908, if part payment was made, or if an acknowledgment of the amount due was made, then a fresh period of limitation was available to the decree holder. Under sections 18 and 19 of the Limitation Act of 1963, which are somewhat analogous to sections 19 and 20 of the Limitation Act of 1908, the benefit of a fresh period of limitation on account of part payment or of acknowledgment has been specifically excluded. The period of limitation, therefore, will have to be calculated by ignoring the part payments and the acknowledgment made by the judgment-debtor. If this is done, says Mr. Pinge, the Darkhast application filed in the year 1968 must be held to be barred by time. 7. The period of limitation, therefore, will have to be calculated by ignoring the part payments and the acknowledgment made by the judgment-debtor. If this is done, says Mr. Pinge, the Darkhast application filed in the year 1968 must be held to be barred by time. 7. Then there was further argument of Mr. Pinge that, the period of 12 years which is provided by Article 136 of the Limitation Act of 1963 is shorter than the period of limitation provided by Article, 182 of the Limitation Act of 1908, This bas the effect of attract in a the provisions contained in section 30 (b) of the Limitation Act of 1963. If this is so then it was incumbent upon the decree holder to present an application for execution within ninety days from the date of the commencement of the Limitation Act of 1963. This means that the execution application should have been presented before 1st of April 1964. In support of these submissions Mr. Pinge relied upon the Judgment of a Division Bench of this Court in Messrs. Nagardas Chhotalal Shah v. Messrs. Sardoolsingh Karmal & Co.1, which has held that the period of limitation provided under Article 183 of the Limitation Act of 1908 was longer than the, period of limitation provided by article 136 of the Limitation Act of 1963. 8. All the submissions of Mr. Pinge can be answered by considering in the first place as to whether the period of limitation prescribed under Article 136 of the Limitation Act of 1963 is shorter than the period of limitation prescribed by the Limitation Act of 1908 as mentioned in clause (b) of section 30 of the Limitation Act of 1963. Article 182 in the Schedule to the Limitation Act of 1908 pfovide4 a period of three years for the execution of a decree or order of any Civil Court not provided for by article 183 or by section 48 of the Code of Civil Procedure 1908. Where a certified copy of the decree or order had been registered, the period was six years, In the third column of the said schedule, the time from which period begins to run has been mentioned. The third column provides for the running of the time from different dates depending upon the situations envisaged in that column. Where a certified copy of the decree or order had been registered, the period was six years, In the third column of the said schedule, the time from which period begins to run has been mentioned. The third column provides for the running of the time from different dates depending upon the situations envisaged in that column. The second column of the first Schedule of the Limitation Act of 1908, therefore, provided for a period of three years; or six years as in the present case where there is a certified copy of the decree. The period of three years or the period of six years cannot obviously be longer than the period of twelve years as provided under article 136 of the Limitation Act of 1963. Mr. Pinge's argument is that if one reads article 182 along with sections 19 and 20 of the Limitation Act of 1908 it will have to be held that the period of limitation prescribed under Article 182 is more than the period prescribed by article 136 of the Limitation Act of 1963. We are unable to accept this submission because the fact that a fresh period of limitation shall be computed from the date of the part-payment or from the date of acknowledgment does not expand the period of limitation prescribed by the first schedule of the Limitation Act of 1908. The period of limitation prescribed by the schedule continues to remain three years or six years where there is a certified copy of the decree. Irrespective of the results which may follow from the part payment or the acknowledgment mentioned in sections 19 and 20 of the Limitation Act of 1908, the period of limitation prescribed by the schedule continues to remain three years or six years. It is no answer to this position in law to resort to the provisions of section 48 of the Code of Civil Procedure, as was done by Mr. Pinge, and to contend that the period of limitation ultimately gets extended upto twelve years. It is no answer to this position in law to resort to the provisions of section 48 of the Code of Civil Procedure, as was done by Mr. Pinge, and to contend that the period of limitation ultimately gets extended upto twelve years. Section 48 of the Code of Civil Procedure, which has since been repealed after the coming into force of the Limitation Act of 1963, only provided that where an application to execute a decree bas been made, no order for execution of the same shall be made upon any fresh application presented after the expiration of twelve years from the date of the decree sought to be executed or from the date of the default in making the payment in case of an instalment decree. Mr. Pinge read into these provisions an extended period of twelve years. We do not view the provisions in the same manner. The fact that section 48 of the Code of Civil Procedure then provided that the decree shall not be executed after a period of twelve years does not mean that the period of limitation prescribed by the Schedule to the Limitation Act of 1908 was twelve years. The period of limitation mentioned in the schedule continues to remain the same, namely three years or six years under article 182. In our opinion, therefore, neither the possibility of an extended time being available under sections 19 and 20 of the Limitation Act of 1908, nor the provision that the decree shall not be executed twelve years after its date as provided for in section 48 of the Code of Civil Procedure extends the period of limitation mentioned in the Schedule to the Limitation Act of 1908. If this is so, then the period of limitation prescribed by Article 136 of the Limitation Act of 1963 must be held to be longer than the period of limitation prescribed by the Limitation Act of 1908. In our opinion, clause (b) of section 30 of the Limitation Act of 1963 is not applicable to an execution application which was to be filed under old article 182 and which has now to be filed under article 136 of the new Act. 9. We must now briefly examine the reliance placed by Mr. Pinge on the judgment of the Division Bench of this Court in Nagardas's case. 9. We must now briefly examine the reliance placed by Mr. Pinge on the judgment of the Division Bench of this Court in Nagardas's case. At the outset it must be mentioned that that case was concerned with the applicability of the provisions of section 30 (b) of the Limitation Act of 1963 in the context of article 183 of the Limitation Act of 1908. Article 183 of the Limitation Act of 1908 was concerned with a decree or order passed by a Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction. The decree in Nagardas's case was a decree of the original side of this Court. Article 183 provided for a period of limitation of twelve years. In the third column of the schedule to the Limitation Act of 1908 it had been mentioned that the time would begin to run when the present right to enforce the decree accrued to some person capable of releasing the right. In the same column, that is in the third column, there was a proviso to the effect that when the decree bad been revived or some part of the principal money secured thereby or some interest on such money had been paid or some acknowledgment of the right had been given in writing then the twelve years was to be computed from the date of such revival, payment or acknowledgment. In other words, the period of limitation provided under article 183 of the Limitation Act of 1908 could be regarded as twelve plus. That in fact was the reasoning adopted by the Division Bench while bottling that the period of limitation or twelve year provided by article 136 of the Limitation Act of 1963 was shorter than the period of limitation provided by article 183 of the Limitation Act of 1908. That in fact was the reasoning adopted by the Division Bench while bottling that the period of limitation or twelve year provided by article 136 of the Limitation Act of 1963 was shorter than the period of limitation provided by article 183 of the Limitation Act of 1908. The following observations to be found in the judgment of the Division Bench are helpful in adopting the criterion to determine the question with which we are concerned :- "Thus to determine the question whether the period of limitation for an application is shorter under the 1963 Act than that under the 1908 Act, regard is not only to he had to the time specified in the second column of the Schedule, but regard is also to be bad to the computation of such time having regard to the provisions of column 3 of the Schedule....” Column 3 of the Schedule to the Limitation Act of 1908 does not increase the period of limitation mentioned in the second column against Article 182. If as a result of part payment or acknowledgment some extended time becomes available, that does not alter or increase the period of limitation provided in the second column of the Schedule. At the most it can be said that the period of limitation prescribed under article 182 of the Limitation Act of 1908 is three plus or six plus which cannot be predicated to mean that in all cases it will be more than twelve years. Looked at from any angle, therefore, we cannot agree that the period of limitation under article 136 of the new Act is shorter than the period of limitation prescribed under article 182 of the old Act. 10. Mr. Abhyankar appearing for the respondents referred to some decisions of the Calcutta, Gujarat and Kerala High Courts which have taken the view that an acknowledgment made when the Limitation Act of 1908 was in force gave a fresh life to the decree and the period of limitation should be calculated from the date on which the fresh life was given. This view taken initially by the Calcutta High Court in Subhodh Chandra Mitra v. Kanai Lal Mukherjee2 has been specifically dissented from by our Division Bench in Nagardas's case. We have, therefore, not thought it fit to examine Mr. Abhyankar's contention in that regard. 11. This view taken initially by the Calcutta High Court in Subhodh Chandra Mitra v. Kanai Lal Mukherjee2 has been specifically dissented from by our Division Bench in Nagardas's case. We have, therefore, not thought it fit to examine Mr. Abhyankar's contention in that regard. 11. Having held that Article 136 of the Limitation Act of 1963 is applicable to the present Darkhast, the Darkhastdars are entitled to recover all monies that are due to them within a period of twelve years next before the date on which the present Darkhast was filed. As already mentioned above, the present Darkhast was filed on 10th of December 1968. Certain amounts had been paid by the judgment-debtor voluntarily without stipulating as to the instalment for which those amounts were to be appropriated by the decree-holder. In the absence of such stipulation or direction the decree-holder was free to appropriate all those amounts towards the earliest instalments. A rough calculation shows that the amount paid by the judgment-debtor satisfied the instalments which were due upto September 1956. In any case, as far as the present Darkhast is concerned only the amounts which were payable after 10th of December 1956 can be recovered. As has been pointed out by a Full Bench of this Court in Chunilal Motiram v. Shivram Naguji Ghule3, the right which is given to a decree-holder under a decree to enforce the payment of the full decretal amount in default of payment of any instalment is a right given to a decree-holder for his benefit. Although a default may take place, he may treat the decree as still a decree for instalments and he may pursue to execute his right to obtain the instalments as and when they fall due. This legal position is found to be supported by a judgment of the Supreme Court in Sree Bank Ltd. v. Sarkar Dutt Roy4. We are, therefore, of the opinion that the present Darkhast is not wholly barred by limitation and it must be proceeded with for recovering all monies due from 10th of December 1956. 12. The Letters patent Appeal thus fails substantially. The decree holder bas failed only to the extent of about three instalments, between September and December 1956. In view of this fact, the appellants must pay the costs of this appeal to the respondents. 13. 12. The Letters patent Appeal thus fails substantially. The decree holder bas failed only to the extent of about three instalments, between September and December 1956. In view of this fact, the appellants must pay the costs of this appeal to the respondents. 13. In the result, the appeal is dismissed subject to what has been said above, relating to the period from which the amount can be recovered. The appellants shall pay the costs of Respondent No.3 alone. Appeal dismissed.