RAJ KUMARI PRAFULLA NALINI DASSI Vs. NRISHINGHA KUMARI DASI

JUDGEMENT

(1.) This appeal is on behalf of the decree-holder, and it is directed against an appellate order made by the District Judge of Nadia affirming an order of the Munsif, First Court of that place, dismissing the appellants application for execution of a decree on the ground that it is barred under Section 48 Civil P.C. The appellants decree-holders-obtained a rent decree against respondents 1-4, and the predecessor-in-interest of respondent 5 for a sum of Rs. 1829 as. odd on 23 March 1919. The judgment-debtors had, amongst other properties, a patni tenure which they held under Satyabala Dasi and others, and this patni was sold at the instance of the latter, for default in payment of patni rent, under Regulation 8 of 1819 on 17 November 1919, just six days before the appellants obtained their decree. The patni was purchased at the regulation sale, by one Rakhal Das Tarafdar for Rs. 13,000 and after meeting the patni rent due to the zemindar, a large sum of money still remained with the Collector as surplus sale proceeds. On 5 January 1920, the appellants applied for execution of their rent decree against the judgment-debtors and in course of the execution proceedings, the surplus sale proceeds of the patni taluk lying with the Collector, were attached, and the entire decretal dues were satisfied from the same. The execution case started by the appellant was thus dismissed on full satisfaction on 2 March, 1920. Subsequently, a darpatnidar under the judgment-debtors, instituted a suit to set aside the patni sale. This suit was decreed, and the patni sale was set aside on 8 January 1922. The auction purchaser then got back his purchase money from the zemindars by instituting a suit against them, and recovering a decree upon the same, and the zemindars in their turn, sued the appellants for refund of the money taken away by them in execution of their decree against the judgment-debtors. This suit was decreed by the trial Court on 13 September 1929. There was an appeal to the District Judge, against this decision and that being dismissed, a second appeal was taken to this Court, which was eventually dismissed on 14 November 1935. The decree-holders being thus compelled to refund the whole amount which they had taken in satisfaction of their decree filed the present application on 14 November 1938, praying for revival of the original application for execution which was dismissed on 2 March, 1920, and for realisation of the decretal dues by attachment and sale of other properties belonging to some of the judgment- debtors. Both the Courts below refused to treat this application of the appellant as a continuation of their original application for execution, and they rejected it on the ground that any application for execution was now barred under Section 48, Civil P.C. It is the propriety of this view that has been challenged before us in this appeal.

(2.) Mr. Das who appears for the appellants has contended before us that, as his clients are seeking execution in respect of the amount which they had to refund to the zemindars, under a decree obtained by the latter in a suit brought against them, they are entitled under Clause (6) of Art. 182, Limitation Act, to a period of three years from 14 November 1935 when the decree was made by the final Court of appeal in the refund suit. The application for execution was therefore quite in time, and Section 48, Civil P.C., did not in any way affect or curtail the provision of Art. 182. It is also argued that in any event, the Courts below should have treated the present application as one in continuation or for revival of the former application for execution. So far as the first point is concerned, there is no doubt that the present case comes within the wording of Art. 182, Clause (6), Limitation Act, which provides for execution of a decree in respect of any amount which was recovered by the decree-holder by execution of his decree, but which he was directed to refund later on by a decree passed in a suit for such refund. The period of three years mentioned under column (2) of the article is to begin in such cases from the date when the final decree is made in the suit for refund. The difficulty however is created by the fact that the Legislature when it introduced the present Clause (6) in Art. 182, Limitation Act, did not alter the provision under column (1) of the article, or that of Section 48, Civil P.C. Art. 182, Limitation Act, governs an application for execution of a decree or order of any civil Court which is not provided for by Art. 183, or Section 48, Civil P.C. Section 48, Civil P.C., imposes a restriction on the right of the decree-holder, by fixing a maximum time for execution, and by enacting that no order for execution shall be made upon an application presented after the expiry of 12 years from the date of the decree, or from the other dates specified in Clause (b) of the section. If a decree- holder has realised an amount of money by execution of his decree, but is compelled to refund that amount by a decree passed in a subsequent suit for refund, there is no doubt that he will he entitled to take out execution for this amount, if the application is presented within three years from the date of the final decree in the refund suit, provided 12 years have not already run out from the date of the original decree. The question, however, is as to whether if 12 years had already expired from the date of the original decree, the decree-holder will be still entitled to avail himself of the provision of Art. 182 (6), Limitation Act. The answer in our opinion should be in the negative.

(3.) Under Section 3, Limitation Act, every application made after the period prescribed by Schedule 1, Limitation Act, shall be dismissed. Art. 182 of Schedule 1 prescribes a period of three years beginning from the dates specified in the various clauses, for an application for execution of a decree, which inter alia is not provided for by Section 48, Civil P.C. In a sense every application for execution is provided for under Section 48, Civil P.C., which prescribes a period of 12 years after which no such application could be entertained by a Court. If we give this interpretation to these words in Art. 182 the result would be an absurdity, for the whole of the article would in that case be rendered inoperative and would not be applicable to any application for execution of a decree. The words should reasonably be construed to mean "not provided for as regards dismissal by Section 48, Civil P. C," In other words execution can be allowed under Art. 182 only if it is not barred and liable to be dismissed under Section 48, Civil P.C. To quote the language of Bamesam J. in Subbarayan V/s. Natarajan ( 22) 9 A.I.R. 1922 Mad. 268, "to an application for execution of a decree Art. 182 has first to be applied and if it is found not wanting when tested by Art. 182, then Section 48, Civil P.C., operates as a further test."