CHHANGANI, J. -
(1.)THIS is a second appeal by judgment-debtor Bhoormal under sec. 100 read with sec. 47 C. P. C. against the judgment of the District Judge, Balotra dated 16. 11. 1957 maintaining the order of the Civil Judge, Jalore passed in execution proceedings.
(2.)THE facts necessary for the disposal of the appeal may be briefly stated as follows:
One Mst. Kaddi obtained a money decree for Rs. 3,166/9/- from the Court of the Judicial Superintendent, Mallani in Civil-Original Suit No. 21 of 1935-36 on 30th June, 1937 against Bhoormal the judgment debtor-appellant. On 31. 3. 1943 Mst. Kaddi assigned the decree in favour of one Prem Chand. It appears that the first execution application was filed for the execution of the decree on 19th April, 1943 and was disposed of on 23rd September, 1943. The present is the second execution application filed by the legal representatives of the assignee Premchand and was presented in Court on 20th September, 1951. A note was, however, added in the application for execution that after the dismissal of the first execution application on 23rd September, 1943 the judgment-debtor made three payments each amounting to Rs. 125/- on 3. 1. 1946, 19. 9. 47 and 25. 4. 50 through remittances under insured letters. The judgment-debtor while remitting the amounts sent letters reciting the fact of payments to the decree-holders. The decree-holders certified the payments in the note and pleaded that the execution application should be treated within time on the basis of these payments appearing in the hand-writing of the judgment-debtor,
The judgment-debtor on receipt of a notice under O. 21 R. 22 C. P. C. objected to the execution of the decree. It was contended in the first instance that the application for execution was presented after the expiry of the period of limitation and was, therefore, not competent. It was also pleaded that the present applicants were not competent to execute a decree in favour of Mst. Kaddi. In the alternative it was pleaded that on 10th September, 1945 Premchand the predecessor in interest of the applicant-respondents had entered into a fresh contract with the appellant in respect of the decree in question and another decree obtained by Premchand against the Judgment-debtor. In satisfaction of both the decrees he had agreed to accept Rs. 3,100/- and the Judgment-debtor executed a khata for the amount in favour of Premchand. An amount of Rs. 350/- was paid towards this khata on that very day. The balance of the amount was to be paid by four-monthly instalments each for an amount of Rs. 125/- He alleged payment of a number of instalments and in addition a further payment of Rs. 450/- on 18. 4. 57 and an amount of Rs. 185/- in connection with illness of Mst. Kaddi, all totalling to Rs. 2,840/ -. He produced some receipts in support of his case. He thus pleaded satisfaction of the decree through adjustment and further referring to the absence of the present sub rule (3) in O. 21 R. 2 in the Marwar Code of Civil Procedure in force on 1st September, 1945 the date of the adjustment, he contended that he was entitled to plead adjustment and the decree-holders can not execute decree in view of this adjustment.
The Execution Court after framing issues and recording evidence of the parties overruled the objections of the judgment-debtor. In appeal, the District Judge Balotra affirmed the findings of the Execution Court and dismissed the appeal. The judgment-debtor has filed this second appeal.
The first contention urged by the learned counsel for the appellant is that the execution petition is barred under sec. 48 of the Code of Civil Procedure, the application having been filed after twelve years of the passing of the decree. For a proper decision on this point, it will be proper to refer to the various enactments prescribing the period for the execution of decrees under sec. 48 C. P. C. When the decree was passed the Marwar Civil Procedure Code, 1913 was in force and it prescribed a period of 24 years under sec. 48 C. P. C. The Civil Procedure Code, 1913 was repealed by the Marwar Code of Civil Procedure (Act No. 29 of 1949) which came into force on 21st of March, 1949. By this Act, the Indian Civil Procedure Code was adapted with this modification that under sec. 41 a period of 24 years was substituted for a period of 12 years. Subsequently, the period of 24 years under sec. 48 of the Marwar Code of Civil Procedure was reduced to twelve years by sec. 3, of the Marwar Limitation (Amendment) Act, 1949. Sec. 4 of the Limitation Act, however, provided for a grace period of three years for suits and applications under certain specified circumstances. It is not disputed that the present respondents were entitled to the benefit of section 4 of the Marwar Limitation (Amendment) Act and were entitled to present the execution application within the grace period expiring on 27. 3. 1952. After the integration of Rajasthan, the Rajasthan Code of Civil Procedure (Adaptation) Act No. V of 1950 was brought into force with effect from 24th of January, 1950. Sec. 48 of the Indian Civil Procedure Code was adapted subject to some modifications providing inter-alia that for the decrees made before the commencement of this Ordinance in those parts of Rajasthan where a corresponding provision then existed with a period longer than twelve years provided therein, such longer period or the period of twelve years from such commencement whichever expires first, shall be the period after which, according to the said section of the Indian Code, no order for execution shall be made. This proviso clearly retained to the decree-holder the benefit of sec. 4 of the Marwar Limitation (Amendment) Act. Later the Indian Civil Procedure Code was extended to Rajasthan by the Civil Procedure Code (Amendment) Act 1951 No. II of 1951 (Central Act ). No special provision was made in this Act originally in connection with the execution of the decrees which could be executed even after the expiry of twelve years under the law in force at the time of the extension of the Central Act. Later on, however, by the Code of Civil Procedure (Rajasthan Amendment Act No. 20 of 1952) (Central Act) the deficiency was made up and sec. 48-A was inserted after sec. 48. Sec. 48-A (ii) provides that for the purposes of the application of sec. 48 to the State of Rajasthan where a decree might have been made before the 25th day of January, 1950 in those parts of Rajasthan where a corresponding provision then existed, with a period longer than twelve years provided therein such longer period or the period of twelve years from the said day whichever expires first shall be the period after which, according to sec. 48, no order for execution shall be made. In view of these clear provisions and the fact that on 25th January, 1950 the decree-holder-respondents were competent to present application for execution within the grace period expiring on 27th of March, 1952 the application for execution is clearly within time. The question of law raised by the appellant was considered and decided by the Division Bench of this Court by a judgment reported in Surajsee vs. Sheo Nath Singh (1 ). It was held in that case that under circumstances similar to the present case the decree-holders were competent to apply for execution even after the expiry of twelve years within the grace period. In my view, the District Judge rightly overruled the objection of the judgment-debtor based on sec. 48 of the Code of Civil Procedure and the appellant's contention is without force and must be rejected.
The second contention of the learned counsel for the appellant related to his objection that on account of a subsequent adjustment the decree-holders are not competent to execute the decree. The submission in this connection is that O. 21 R. 2 sub rule (3) C. P. C. providing that a payment or adjustment which has not been certified or recorded as aforesaid shall not be recognised by any Court executing the decree was not in force on 10. 9. 1945 at the date of the adjustment, having been deleted by sec. 35 of Marwar Relief of Indebtedness Act, 1941 coming into force on February 1,1945. Although sub rule (2) permitting and enabling him to inform the Court of payments or adjustments and Art. 174 of the Limitation Act provides a period of 90 days for an application by the judgment-debtor for getting payments and adjustments certified were in force yet there was no bar against a judgment-debtor pleading payment and adjustment in response to a notice under O. 21 R. 22 C. P. C. at any stage and that it is competent for him to rely upon that right and to plead adjustment in the present case. The learned District Judge dealing with this aspect of the case observed as follows: - "it is true during those days there was no bar for any Court executing a decree to recognise the uncertified adjustments or payments but it cannot be urged with any advantage that a judgmentdebtor was also relieved of recording or certifying the payment or adjustment made by him. If the judgment-debtor in this case failed to get the adjustment in question recorded he is him self responsible for the same because under Sub rule (3) of R. 2 of 0. 21 Civil P. C. as it now stands, the execution Court is debarred from recognising such uncertified payment or adjust ment. " The learned Advocate for the respondents while supporting the judgments of the Courts below very strongly submitted that the repeal of sub rule (3) by the Marwar Relief of Indebtedness Act, 1941 did not at-all improve the position of the judgment debtor. Article 174 of the Limitation Act having remained as it is, the judgment-dedtor is disabled from raising questions of payments and adjustments after the expiry of the period prescribed in Article 174. Alternatively, he contended that in 1949 a fresh Marwar Code of Civil Procedure having been brought into force and having adapted O. 21 R. 2 of the Indian Code as it is without any amendment the sub rule (2) was re-introduced and was in force at the date of presenting execution application. He added that the Code of Civil Procedure being a procedural law the case should be governed by the law that was in force at the date of the presentation of the execution application and the judgment-debtor is precluded by the law in force at the time of the institution of the proceeding from pleading uncertified payments and adjustments.
Taking up the first submission of the learned counsel for the respondents it will be useful to point out that sec. 36 or the Punjab Relief of Indebtedness Act had similarly omitted sub rule (3) of O. 21 R. 2 C. P. C. in the application of the Civil Procedure Code to Punjab. The effect of this omission was considered in some cases of the Lahore High Court. In Murlidhar versus Firm Basheshar Lal Moti Lal through joint receivers, decree holder and others, judgment debtors and another (2) the Lahore High Court after a comprehensive examination of the various provisions of the Civil Procedure Code arrived at the following conclusions: - (1) It is clear under sec. 47 that it is the duty of the Execution Court to decide the question of alleged payment towards the decree or discharge of the decree and a separate suit does not lie for this purpose; (2) Under O. 21 R. 2 sub rule (1) a duty has been cast upon the decree-holder to certify any payment and adjustment out of Court; (3) Under sub rule (2) no duty has been placed on the judgment-debtor but he is merely permitted, if the so cares, to apply to the Court, within 90 days of the date of the alleged payment or adjustment, to issue a notice to the decreeholder to show cause why the payment should not be certified. (4) That sub rule (3) of course debars a judgment-debtor from pleading payment or adjustment in the Execution Court in the event of his failing to take advantage under sub rule (2) of O. 21 R. 2. (5) With the repeal of the sub rule (3) the penalty having gone and sec. 47 enacting that all questions relating to the discharge of the decree must be determined by the executing Court and not by a separate suit, the Execution Court must go into the question although the judgmentdebtor has not taken advantage of the permission given him by sub rule (2) of O. 21 R, 2, to apply to the Court to issue a notice to the decree-holder for certification. The Division Bench considered an earlier contrary decision but recorded their dis-agreement with that decision. The Division Bench case was followed in another Single Bench case Daru Mal vs. Todar (3 ). Chaudhri Chhoturam in his book on the Punjab Relief of Indebtedness Act commenting over the effect of the omission of sub rule (3) of O. 21 R. 2 C. P. C. has expressed the same view a little emphatically in the following manner: - "the wording of this Rule clearly states that the obligation to certify a payment or adjustment which takes place in respect of a decree out of court rests on the decree-holder. The judgment-debtor, may, if he likes, also inform the court of such payment, or adjustment, but he is under no obligation to do so. And yet, if a default is made by the decree-holder in the discharge of his obligation, it is not he but the judgment-debtor who is penalised. It was with a view to the removal of this anomaly that the amendment contained in this section has been made. Under the old law a judgment-debtor was not allowed to plead any payment or adjust ment which was not certified to the court within 90 days of its occurrence. Under the law as amended a judgment-debtor is at liberty to plead such payment or adjustment at any time when the payment or adjustment comes in question. " I am in entire agreement with the view expressed above and must hold that the legislature in Marwar in deleting O. 21 R. 2 sub rule (3) clearly intended that the judgment-debtor should be permitted to plead uncertified payments and adjustments and resist the execution of the decree in spite of their omissions to take appropriate action under sub rule (2 ). Consequently, I am unable to agree with the submission made on behalf on the respondents.
Examining the second submission, I may state that I have no quarrel with the general proposition that the Code being a procedural law, ordinarily the law to be looked at is the law in force at the time of the institution of the application. This, however, is subject to an exception that the vested rights of the parties can not be affected by procedural law. On 10th September, 1945 when the parties adjusted the decrees the judgment-debtor had a right under sec. 47 C. P. C. to plead payment and adjustment at any time in response to a notice under 0,21 R. 22 and there was no bar against such a pleading on account of the absence of sub rule (3) in O. 21 R. 2. Now even assuming that the Marwar Code, 1949 re-introduced sub rule, (3), although the appellant's Advocate disputes this position, still it can not be accepted that the amendment of the procedural law was intended to extinguish the right which had vested in the judgment-debtor to plead even uncertified payments and adjustments. There are no express words in sub rule (3) depriving the judgment-debtor of his right. It will also be not proper to infer extinction of such right by necessary implication. Obviously, after the expiry of 90 days of the alleged payment or adjustment the judgment-debtor can not avail of the benefit of sub rule (2) in view of Article 174 of the Limitation Act. The new Code allegedly re-introducing sub rule (3) did not provide any time during which the judgment-debtor who had the right to plead uncertified payment or adjustment to get it certified or to get it otherwise recognised. It can safely be assumed that the legislature will not ordinarily extinguish vested rights absolutely without giving reasonable opportunity for enforcing the rights during a reasonable period. On these premises, I have no doubt that the judgment-debtor's right to plead uncertified payment or adjustment which had once vested in him, is not at all affected by the alleged re-introduction of sub-rule (3) by the Code of 1949. In this view of the matter I do not find force in the contention of the learned counsel for the respondents and agree with the learned counsel for the appellant that he is entitled to plead adjustment and claim an inquiry on his plea. The Execution Court was not justified in refusing to inquire into the question of adjustment pleaded by the judgment-debtor and the appellate Court similarly erred in agreeing with the view of the Execution Court. Consequently, it is necessary that the case should go back to the Execution Court for proper inquiry into the question of adjustment. 9. The learned counsel for the appellant has also contended that the alleged payments by him were not towards the decree but towards the liability taken by him under a subsequent adjustment of the two decrees. He also argued that even if the payments are treated as towards the decree, still they can not extend limitation. The first submission involves a question of fact and can not be decided without a prior finding whether there has been adjustment or not. Since the case is being remanded for inquiry into the claim of adjustment the execution Court will examine this aspect of the case and decide the question on the evidence to be led by the parties. On the legal question the learned advocates joined serious controversy and cited a number of cases in support of their respective contentions. I, however, consider it unnecessary to express any opinion on the legal question at this stage. The question of law will arise for determination only after a decision on the question of fact. It will be the duty of the Execution Court to go into the legal question and decide it afresh in the light of the findings of fact to be arrived at after a proper inquiry.
(3.)AS a result of the above discussions, I accept the appeal, set aside the judgments of the courts below and remand the case for inquiry and fresh decision in the light of the observations made in this judgment. The costs shall abide the result.
Mr. Mangi Mal prays for leave to appeal under Sec. 18 (2) of the Rajasthan High Court ` Ordinance. Leave is granted. .