CHHANGANI, J. - (1.) THIS is a judgment-debtor's appeal in an execution matter and the only question for determination is : whether the application for execution presented by the respondents in the Court of District Judge, Bikaner, on 8. 7. 1957, is barred by limitation?
(2.) THE facts leading to the appeal may be briefly stated as follows: - One Murlidhar, the ancestor of the present respondents, obtained a money decree for Rs. 14,064/10/0 from the Court of Appeal, Bikaner State, Bikaner against Mst. Takhtan widow of Thakur Khuman Singh and Mst. Birdan widow of Duley Singh, representing Thikana Dhandusar, on 8th August, 1889. It is not clear from the record whether the decree-holder Murlidhar or his heirs took any steps for executing the decree till the year 1920. It, however, appears that, in the year 1920, Rambux son of Murlidhar took out execution of the decree against Fateh Singh, the present appellant, in the Court of Nazim Reni and got attached some property. On an objection by the judgment debtor that the Thikana was under the superintendence of the Court of Wards the execution application was dismissed and the attachment was released. On a revision by the decree-holder, the Chief Court of the former Bikaner State by its order dated 20th November, 1920 upheld the decision of the Nazim Reni holding that the judgment-debtor's estate was under the management of Court of Wards and there could be no attachment of the property. It was directed that the decree-holder should take out proceedings in the Court of Wards which will take steps for the satisfaction of the decree. Thereafter, the decree-holder's claim was registered in the Court of Wards by the Revenue Commissioner vide his order dated 24th August, 1923. Since then the Thikana of the judgment-debtor continued to remain under the Court of Wards till 31st March, 1956 when it was released under the provisions of the Rajasthan Court of Wards Act, 1951 (Act No. XXVIII of 1951 hereinafter to be referred to as the Rajasthan Act ). During this period, on 10th February, 1950 the decree-holders got Rs. 1,680/-from the Court of Wards towards their decretal claim. After the release of the estate the present respondents, who claim to be the legal representatives of the original decree-holder, filed the present execution application in the Court of the District Judge, Bikaner for executing the decree. The respondents stated in the execution application that although the decree was passed on 8th August, 1889, it could not be executed as the estate was under the superintendence of the Court of Wards. The respondents claimed exclusion or the period between the years 1921 and the year 1956 and thus sought to bring the execution application within time. They prayed for attachment of the compensation money payable to the appellant. The District Judge registered the execution case and ordered the attachment of the money payable to the appellant on account of compensation for resumption of the Jagir. An amount near about Rs. 1,700/- appears to have been attached, The judgment-debtor objected to the execution of the decree on the following grounds: - (1) That the Patta Dhandusar remained under the management of the Court of Wards from 21. 8. 1895 to 1956, and that the decree-holders having failed to notify their claim in the Court of Wards till 24. 8. 1923, the decree should be deemed to have been satisfied. Adverting to the payment of Rs. 1,680/- from the Court of Wards, he pleaded that the payment was made without his consent. (2) The judgment-debtor pleaded bar of limitation generally. In particular, he mentioned that the judgment-debtor being an agriculturist, the decree could not be executed against him after 1st February, 1933 in view of the provisions of sec. 41 (3) of the Bikaner State Code of Civil Procedure, 1920 as amended by the Act of 1930 (Act No. 1, 1920), which came into force on 1st July, 1920. The Execution Court recorded some evidence in connection with the allegation of the judgment-debtor that he is a bonafide agriculturist, and, eventually, dismissed the objections. The Execution Court held that the decree-holders' debt was duly registered under orders of the Revenue Commissioner dated 24th August 1923. An objection on the basis of an omission to notify the claim at an early stage, was repelled on the ground that the claim was registered when the Court of Wards Act of 1892 was in force, which did not contain a provision similar to sec. 29 of the Court of Wards Act, 1928 to the effect that a claim not notified shall be deemed to have been satisfied. The District Judge dealt with the question of limitation only with reference to the objection based on sec. 41 C. P. C. He did not decide the question of fact whether the "appellant is an agriculturist or not but, overruled the plea of limitation on the ground that in view of the Special Act (referring to the Court of Wards Act), sec. 41 C. P. C. could not be invoked. The question of limitation on the general provisions was not determined by the District Judge, presumably because it was not pressed before him. Dealing with the contention that an amount of Rs. 1,680/- was not paid by the 1 Court of Wards by the consent of the appellant, the learned Judge decided that the absence of consent would not make any difference. Aggrieved by the decision of the District Judge, the judgment-debtor has filed the present appeal. Mr. Chandmal, appearing for the appellant, made no attempt to argue that the period of time upto March, 1956 (31. 3. 1956) could not be excluded on an applicability of the provisions of the old Bikaner Act. He contended that the Bikaner Court of Wards Act, 1928 stood repealed by sec. 2 of the Rajasthan Act, and that the old Act cannot govern the present case. Elaborating his position under the Rajasthan Act, he contended that there is nothing in the provisions of the Act to show that the remedies under the general law should be suspended as soon as a claim is notified in response to a notice under sec. 17. While there is absolutely no bar against the institution and continuance of suits, sec. 21 mainly prescribed certain conditions under which a fresh proceeding in execution of any decree against the ward may be instituted. Under sub-sec. (1), the decree-holder is required to file a certificate to the effect that the claim has been notified, or is deemed to have been notified in accordance with sec. 17, or a copy of a final order or decree of the Civil Court allowing the claim in any suit or proceeding referred to in sec. 20. Sub-sec. (2) seeks to safe-guard the rights of the decree-holder by providing that the decree-bolder shall be entitled to receive from the Collector free of costs, a certificate to the effect specified in sub-sec. 1 (a ). Sub-sec. (3) provides for the exclusion of the time between the date of notice under sec. 17 and the confirmation of the Collector's decision on the claim by the Court of Wards. Observing that this is the only section, available to the decree-holders, Mr. Chandmal, proceeded to say, that sec. 21 is not attracted in the present case as it contemplates proceedings under the Rajasthan Act and an issue of a notice under sec. 17 of the Rajasthan Act, and cannot be invoked in the present case where notice inviting claims was issued under the provisions of the earlier Act, and not the Rajasthan Act. He further submitted that the bar under sec. 21 of the Rajasthan Act is partial and temporary and the period to be excluded is limited, and that the respondents cannot derive any benefit from it. The final limit of the period to be excluded under sec. 21 of the Rajasthan Act is the date of the confirmation by the Court of Wards of the Collector's decision on the claim. In the present case, the decree-holders' claim passed upon a decree stood accepted even prior to the promulgation of the Rajasthan Act, and, therefore, they are not entitled to exclude any period after the promulgation of the Rajasthan Act under which they had unfettered right to execute the decree. Referring to sec. 53, relied upon by the respondents for exclusion of the period upto the date of the release of the Thikana from the Court of Wards' management, Mr. Chandmal contended, firstly, that sec. 53 does not apply to the present case, as like sec. 21, it contemplates proceedings under the Rajasthan Act and issue of a notice under sec. 17 of the Rajasthan Act and, therefore, cannot be in respect of a case where the notice was issued under the earlier Court of Wards Acts. He also contended that although sec. 53 states that a period between the publication of a notice under sec. 17 to the date of the release of the estate shall be excluded for the purposes of limitation when an estate is released without discharging the liabilities of the wards, it is really intended to provide for cases where the estate is released without substantial proceedings having been undertaken under the Court of Wards Act and without ascertaining liabilities of the ward, and that, the words "without discharging liabilities thereof in the manner provided in Chapter IV" mean and stand for without ascertaining the liabilities thereof in the manner provided for the Chapter IV. That at any rate, sec. 53 cannot be applied to applications for execution as the expression "applications for the recovery of all claims" do not include applications for execution but are intended to cover original applications to enforce claims, such as applications under encumbered estates etc.
(3.) LASTLY, it was contended that the learned Judge ought to have held that the appellant is an agriculturist, and that the application was barred under sec. 41 of the Old Bikaner Civil Procedure Code. Mr. Joshi, appearing for the respondents, initially relied upon sec. 21 of the Act, but on reconsideration, abandoned his attempt to derive any benefit under sec. 21. However, stressing the words of sec. 53 and the absence of adequate reason or justification for limiting and circumscribing the meaning and effect of words used in the section, he maintained that both suitors and decree-holders are entitled to exclude the period between the date of the notice and the date of the release. The first question for determination is: Whether sec. 53 of the Rajasthan Act governs the present case? This section reads as under: - "effect of release without discharge of liabilities - When the Court of Wards after assuming the superintendence of the estate of a ward releases the same without discharging the liabilities thereof in the manner provided in Chapter IV the time from the publication of notice under sec. 17 to the date of such release shall be excluded in computing the period of limitation applicable to suits or applications for the recovery of all claims outstanding against the ward at the date of such notice. " The main basis for ousting the applicability of sec. 53 is the emphasis on the words "from the publication of notice under sec. 17 occurring in the section. It is argued that the notice in respect of the estate of the Jagirdar was issued, or should be deemed to have been issued, long before the promulgation of the Rajasthan Act, and, therefore, the language of sec. 53 does not govern the present case. The answer to this argument is found in sub-sec. (2) or sec. 2 of the Rajasthan Act, which provides that "all rules and appointments made, notifications and orders issued, authorities and powers conferred, forms and leases granted, rights acquired, liabilities incurred, and other things done under the laws and enactments hereby repealed shall so far as may be, be deemed to have been made, issued, conferred, granted, acquired, incurred and done under this Act. " Consequently, notices issued under the corresponding provisions of the earlier Acts shall be deemed to be notices under sec. 17 of the present Act and the claimants cannot be debarred from availing of the benefit of sec. 53 on this ground. The principal question, however, is the construction of sec. 53, which has been quoted above. On a plain and grammatical construction of sec. 53 the respondent's case does prima facie fall within the language of sec. 53 and the point for consideration is, whether there is any compelling or adequate reason to ignore the plain meaning as suggested by Mr. Chandmal. At this stage, it will be useful and desirable to point out that the Rajasthan Act follows very closely the scheme of the United Provinces Court of Wards Act, 1912 (U. P. Act No. IV of 1912 ). Like the U. P. Court of Wards Act, it consists of eight chapters having exactly similar heads. Chapter IV dealing with ascertainment of debts consists of eight sections as in the U. P. Act and the sections but for local adaptations, are similarly worded. Sec. 53 of the Rajasthan Act is a reproduction of sec. 52 of the U. P. Court of Wards Act. The Oudh Chief Court had occasions to construe the provisions of sec. 52 and sec. 18 containing the expression "without discharging liabilities thereof in the manner provided in Chapter IV". The first case to be referred in this connection is Anand Behari Lal Khandelwal Vs. Deputy Commissioner, Bara Banki (1 ). The material facts in this case were these. One M. held a money-decree against P, who was a talukdar. Superintendence of P's estate was assumed by the Court of Wards and a notification as required by sec. 17 of the Court of wards Act was issued on 31st March, 1931. M. notified his claim and it was accepted by the Board of Revenue. After the death of M the Deputy Commissioner Incharge of Court of Wards made an application on 25th November, 1935 under sec. 4 of the incumbered Estates Act. In this application the decree in favour of M's heir and legal representative Mst. B was admitted. The decree was further admitted in subsequent proceeds and there were negotiations for discharge of the claim. However, later on, the Deputy commissioner was permitted to amend his application and to take a ground that the decree was barred by time and could not be executed, and this plea was eventually allowed by the trial court. In appeal on behalf of Mst. B, it was argued that if the estate were released when appeal was heard, B would be entitled to exclude in computing the period of limitation, the period between 31. 3. 1931 when a notice under sec. 17 was issued and the date of please and her application for execution of the decree, which was passed on 13. 4. 1930, would be within time, and consequently, the rejection of her application at that stage would be anomalous. In dealing with this argument, the learned Judges observed as follows: - "in our view the contention of the learned counsel for the appellant this point is based upon misconception of the provisions of S. 52, U. P. Court of Wards Act. The confusion is created by the use of the word "discharging" in sec. 52. After a careful consideration of the language of the relevant section we are of opinion that sec. 52 applies to cases where the estate is released from the superintendence by the Court of Wards before the ascertainment of debts and secs. 21 and 20 apply where the debts are as certained by the Collector under chapter 4 of the Act, chapter 4 of the Court of Wards Act deals not with discharging liabilities of the ward but with their ascertainment only, and in our opinion, the words "without discharging the liabilities thereof in the manner provi ded in Chap. 4" in sec. 52 mean and stand for "without ascertaining the liabilities thereof in the manner provided in Chap. 4". We are, therefore, of opinion that the argument of the learned counsel for the appellant which is based upon misconception of the meaning and application of S. 52 U. P. Court of wards Act has no force. " The decision of the Division Bench, however, could not remain in occupation of the field long. A later Division Bench, while interpreting the similar expression in sec. 18 of the United Provinces Court of Wards Act doubted the correctness of the decision in Anand Behari Lal Khandelwal's case (1 ). The following specific question was consequently referred to the Full Bench: - "it the view taken byabench of this Court in A. I. R. 1940 Oudh 107 correct and do the words "without discharging the liabilities there of in the manner provided in this Chapter" used in Sec. 18 U. P. Court of Wards Act mean without ascertaining the liabilities. . . . . . . . . . . . . . . ?" The Full Bench in Deputy Commissioner Sultanpur Vs. Kallu Mal (2), after a critical examination of the decision in Anand Behari Lal Khandelwal's case (1) expressed the opinion that the view of law taken in the case of Anand Behari Lal Khandelwal Vs. Deputy Commissioner, Bara Banki (1) of Sec. 52, U. P. Court of Wards Act is not correct and that the words "without discharging the liabilities thereof in the manner provided in this Chapter" used in Sec. 18 U. P. Court of Wards Act should be given their plain and ordinary meaning. They do not mean "without ascertaining the liabilities thereof in the manner provided in Chap. 4". In expressing this opinion, the Full Bench relied upon the well settled rule of construction that "unless there are reasons to contrary, words used in a statute shall be given their plain and ordinary meaning, and that it is no open to a court in the absence of an overwhelming reason to the contrary to say that certain words used in a statute "stand for certain other words with entirely different meaning". The Full Bench considered at great length the anomaly pointed out in the earlier Division Bench case and referring to the contention before it "that it would be anomalous position that the application which was barred by time today should become within time on a future date" summed up the conclusions as follows: - "whether the application is or is not within time is a matter to be determined on the facts and circumstances as they exist when the matter arises for consideration. The law of limitation, generally speaking, bars the remedy; it does not extinguish a right. On the date on which Basanti Devi's application for execution of decree was presented it was, according to the circumstances then existing barred by the law of limitation. It was possible that the release of the estate by the Court of Wards without discharging the liabilities of the ward, may bring into existence circumstances which would by virtue of the provisions of Sec. 52, Court of Wards Act, entitle her to present an application which would be held to be not barred by the law of limitation. The decision on the previous application that it was barred by limitation should not, in our opinion stand in the way of the Court executing the decree on an application presented at some time in future if the facts and circumstances then existing show that the application was within time. The decision on the previous application would amount to no more than that on that date on which the application was presented it was barred by the law of limitation. The question which would come up for consideration when another application is presented would be different. The Court would then be called upon to consider whether the application as then presented was or was not within time. The supposed anomaly in the argument of the learned counsel for the appellant in Anand Behari Lal Khandelwal's case (1) was in our opinion not real. " Yet another ground relied upon by the earlier Division Bench "that Chapter IV, Court of Wards Act, deals not with the discharging liabilities but with the ascertainment only was also very closely examined. The scheme of the Act and all the eight sections in Chapter IV were closely examined and the Division Bench view was not accepted as correct. The Full Bench in summing up the position observed as follows: - After referring to Sec. 19.- "the words "if such claim cannot be at once discharged" in sub-sec. (3) of this section clearly show that so far as possible it is the duty of the Collector to discharge at once the debts mentioned in the sub-section. The proviso which follows contemplates the discharge of claims which are not paid off at once within two years from the date of the decision of the Collector as regards the fixing of the rate of interest to be paid thereon. Similarly the proviso to sub-sec. (4) also deals with the discharge of debts. It is true that Chap. 4 is headed "ascertainment of debts" but as shown above there can be no doubt that it deals with the manner in which the debts are to be regarded. There is as pointed out in the judgment of the Division Bench which made the reference, no other chapter which deals with the discharge of liabilities. " I am in respectful agreement with the conclusion of the Full Bench as also with the elaborate and convincing reasons given by it. ;