THAKARSHI JAICHAND SHAH AND ORS Vs. WOMAN PRALHAD KULKARNI

JUDGEMENT

(1.) THIS is an appeal under the Letter Patent from a decision of Gajendragadkar J.

(2.) THERE was at Nandurbar a firm of the name of Maganlal Natbabhai Oil Mill. The firm was composed of two partners, namely, Jayachand Somchand and Maganlal Nathabhai. In 1934 Jayachand Somchand filed against Maganlal Natbabhai a Suit No.460 of 1934 for dissolution of the partnership and in the course of that suit a receiver was appointed. In 1935, the receiver appointed in Suit No.460 of 1934 filed against a company called Jayachand Somchand Ginning Company a Suit No.199 of 1985 to recover a sum of Rs. 6,600. The suit was filed against two persons, i. e. , against Jayachand Somchand Vani as defendant 1 and Padamsi Jasraj Vani as defendant 2. On 23rd September 1937, a consent decree was passed in favour of the plaintiff for a sum of Rs. 6,475 and it was made payable in two sums of money, i. e. , a sum of Rs. 3,825 to be paid by defendant 1 and a sum of Rs. 2,650 to be paid by the defendant Ginning Company.

(3.) ON this appeal, Mr. Thakore for the appellants contends that the darkhast No.1306 of 1941 is barred by the law of limitation. The determination of this question depends upon the answer to another question which is whether the previous application for execution, namely darkhast No.665 of 1938, was an application in accordance with law. Reliance is placed upon the provisions of Order 30, Rule 9, Civil P. C. The rate provides that : "this order shall apply to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners in common ; bat no execution shall be issued in such suits except by leave of the Court, and, on an application for leave to issue such execution all such accounts and Inquiries may be directed to be taken and made and directions given as ma; be just. " Mr. Thakore's contention is that the obtaining of leave as required by the rule is a condition precedent to the issuing of execution, and that since no leave of the Court was admittedly obtained in the previous execution proceedings, that application cannot be said to be one in accordance with law. The question whether a particular application is one in accordance with law or not must depend upon the facts of each case and it would seem that that question is not always easy to decide. Their Lordships of the Privy Council in the case reported in Govind Prasad v. Pawankumar, 46 Bom. L. R. 306 : (A. I. R. (30) 1948 P. C. 98), have laid down the following test (p. 809): "it is well settled that the words in accordance with law mean in accordance with the law relating to the execution of the decree. " Gajendragadkar J. relied in support of the view which he took principally upon a decision of this Court reported in Sadashiv v. Narsingrao, 17 Bom. L. R. 203 : (A. I. R. (2) 1915 Bom. 46 ). It was held in that case that the application for execution was ''in accordance with law" within the meaning of Art. 182, Limitation Act, even though it was not accompanied by the conciliator's certificate as required by Section 47, Dekkhan Agriculturists' Relief Act. A reference to Section 47, Dekkhan Agriculturists' Relief Act shows that the bar imposed by Section 47 is absolute, because the section provides that : "no suit, and no application for execution of a decree passed before the date on which this Act comes into force, to which any agriculturist residing within any local area for which a Conciliator has been appointed is a party, shall be entertained by any civil Court unless the plaintiff produces a certificate in reference thereto obtained by him under Section 46 within the year immediately preceding. " It follows from this decision that even though an application for execution is filed and the, same is not accompanied by a certificate as required by the section, the application is nevertheless one in accordance with law. The test laid down in a later case of this Court does not seem to be as favourable as is laid down in the case just cited, e. g. , the test laid down in Gopal Parsharam v. Damodar Janardan, 45 Bom. L. R. 707 : (A. I. R. (30) 1943 BOM. 353), is as follows (p. 719) : ". . . . the main test of an application for execution being in accordance with law would appear to be whether it is possible (or the Court to issue execution upon it i. e. , whether it is within the power of the Court to grant the kind of relief asked for, though in the particular case the relief may not, on the merits be granted, e. g. , owing to some finding on facts, not to the nature of the application itself. " It will be observed that this case follows a decision of the Calcutta High Court in Pitambdar Jana v. Damodar Guchait, 53 Cal. 664 : (A. I. R. (13) 1926 Cal. 1077 ). For the sake of convenience reference may also be made to another decision of this Court reported in Shankar Hari v. Damodar Vyankaji, 47 Bom. L. R. 104: (A. I. R. (32) 1946 Bom. 380 ). The test laid down in that case is, in the words of the headnote, as follows : "the expression 'in accordance with law' in Art. 182 (5) of the first schedule to the Indian Limitation Act, 1908, does not imply that the application must be successful. It may be in accordance with law for the purpose of that article and yet the applicant may not be entitled to any relief on account of circumstances other than there being any defect in the application itself. Where, therefore notices required by the proviso to Order 21, Rule. 16, Civil P. C. , are not given to the decree-holder and the judgment-debtors, the application for execution does not thereby cease to be in accordance with law. "