SARDAR BADRI NARAIN SINGH Vs. GHOTANAGPUR BANKING ASSOCIATION PATNA

JUDGEMENT

(1.) THIS Letters Patent Appeal is against the judgment and order passed by the learned single Judge of this Court disallowing the objection under Order XXI, Rule 58 of the Civil P. C. filed by the appellant in the execution of the decree in M J.C. No, 2 of 1970 in the original jurisdiction of the High Court of a decree passed by the High Court in Company Act Case No. 1 of 1958.

(2.) THE brief facts relating to that claim case disallowed by the learned single Judge may be set down as follows : - -

(3.) THE Chotanagpur Banking Association went in liquidation. The Banking Company applied for liquidation on 7 -1 -1958. The High Court of judicature at Patna by order dated 21 -8 -1958 passed the order for winding up, The winding up process is still going on. The official liquidator filed Money Suits Nos. 5 and 6 of 1958 in the Court of the Sub Judge, Hazaribagih for certain claims against Raja Bahadur Kama -khya Narain Singh of Ramgarh. The suits were transferred to the High Court of Judicature at Patna under Sec. 45 -C of the Banking Regulation Act as it related to a company which was under liquidation by order passed by the High Court. The High Court passed a decree for two items which are relevant here as Items 1 -A and 1 -B for a total sum of money which is to a tune of about Rs. 15,000,00/ -. This decree was passed on 22 -12 -1961. In the meantime, the High Court had settled the debtors list under Sec. 45 -D of the Banking Regulation Act and those two items of debt were settled against the said Raja as a debt. Execution Case No. 7 of 1967 was then filed by the decree -holder in the Sub Judges Court of Hazaribagh, but that was also subsequently transferred to the Patna High Court under the said Sec. 45 -C, and was numbered as M. J. C. No. 2 of 1970, the present execution case in wlhich the claim of the objector has been disallowed which is the subject -matter of this appeal. It may be, however, also relevant to mention that previously some properties were given in the execution -petition which property was commonly known as Padma Raj Palace. The wife of the said Raja, Maharani Lalita Rajya Lakshmi, filed a claim case under Order XXI, R. 58 of the C. P. C., which claim was allowed and that property was released from the execution case. Thereafter the decree -holder, namely, the Chotanagpur. Banking Association (under liquidation) filed a petition in the High Court in the execution case (M. J. C. No. 2 of 1970) to add a new property in the execution case for realisation of the decretal dues, That prayer Was allowed and necessary amendment was made in the execution petition to proceed against the newly added property This prayer was allowed by order dated 13 -5 -1975. Then on 19. -11 -1975 the present appellant No. 1 namely Sardaj Badri Narain Singh filed objection under Order XXI, Rule 58 (which was registered as M. J. C. No, 6 of 1975) claiming the newly added property in question on the ground that the same is a property of a religious and Charitable Trust, namely, petitioner No. 2 of that objection petition. It was claimed that long ago, i.e., on 7 -9 -1950 the Raja Bahadur had created a trust to which this property was dedicated by a registered deed of that date and that the Trust in question is in possession of the property in its own right. Subsequently during the pendency of the hearing of that objection -petition it was on 3 -5 -1976 that the objector filed a petition before the High Court that after the amendment in the execution petition by substituting a new property, that application for execution in law would be deemed to be a fresh application for execution filed on the date when the newly added property was substituted and that that date being beyond 12 years of the date of the decree, the execution application was barred lay limitation. The appellant -objector pressed that point of limitation to be decided as a preliminary issue in the case. This point was heard and decided by the learned single Judge in that claim case of the appellant. The decree -holder, resisted that objection of the judgment -debtor. It was, however, conceded on point of law that when in an application for execution a new property is added, the execution application shall be deemed to be a fresh application on the date the new property is added and that would be the date relevant for the computation of the period of limitation. Learned single Judge has referred to in his judgment a case of the Supreme Court in Pentapati China Venkanna V/s. Pentapati Bangararaju, (AIR 1964 SC 1454) which position of law was not disputed by any of the party. The decree -holder, however, resisted the objection taken by the objector on point of limitation on two grounds. The first ground was that it is beyond the scope of the enquiry in a claim case under. Order XXI, Rule 58 to go into the question of the limitation of the execution case and as such this ground was not available to the objector. The second ground taken by the decree -holder was that at any rate on the facts of the present case the limitation would be saved by virtue of Sec. 45 -O of the Banking Regulation Act in view of that fact that the company was already under liquidation at the time the decree was passed for which the application for winding up was filed on 7 -1 -1958 and that the period of limitation would stop to run from the date the application for winding up was filed. The learned single Judge has accepted both the grounds taken by the decres -holder and thus overruled the objection of the objector appellant that the execution case was barred by limitation. It is against that order of the learned single Judge that this appeal has been filed by the objector.