Alli Iylaiah vs Alli Rajalaxmi and Others

L. Narasimha Reddy, J.—This revision raises an important question, in relation to interpretation of Section 15 of the Limitation Act, 1963 (for short ''the Act''). The proceedings, between the parties herein, have a chequered career, and they are narrated, in brief, as under:

Respondents 1 and 2 filed O.S. No. 690 of 1987 against the petitioner and respondents 3 and 4, for recovery of small extents of land, i.e. 27 sq. metres from respondent No. 3; 19 sq. metres from petitioner herein, and 12 sq. metres, from the 4th respondent. The petitioner and respondents 2 and 3 are brothers, while the 1st respondent is the wife of the 2nd respondent. An ex parte decree was passed on 10-06-1988. The 3rd respondent i.e. the 1st defendant in the suit, alone filed an application under Order IX Rule 13 C.P.C., being I.A. No. 1044 of 1988. The trial Court dismissed the I.A., on 30-10-1990. Thereupon, he filed C.M.A. No. 46 of 1993 in the Court of District Judge, Warangal. The C.M.A. was allowed and the I.A. was remitted to the trial Court for fresh consideration.

The respondents 1 and 2 filed C.R.P. No. 4895 of 1998, aggrieved by the order in C.M.A. No. 46 of 1993. Since there was no order of stay in C.R.P. No. 4895 of 1998, the trial Court proceeded with the I.A. No. 1044 of 1988, after remand, and allowed it on 15-04-1995. Respondents 1 and 2 filed C.R.P. No. 1891 of 1995. In C.M.P. No. 7990 of 1995, this Court granted interim stay of all further proceedings in the suit, through order dated 15-06-1995. While C.R.P. 4895 of 1998 was dismissed as infructuous, on 10-09-1999, C.R.P. No. 1891 of 1995 was allowed on the same day, by setting aside the order in I.A. No. 1044 of 1988, and remanding the matter to the trial Court. The said I.A. was allowed on 21-02-2007 after remand, and the suit itself was decreed against the 3rd respondent on 14-11-2007.

After the disposal of the C.R.P. No. 1891 of 1995, respondents 1 and 2 filed E.P. No. 393 of 2005 for execution of the decree against all the judgment-debtors. It was clearly mentioned in item No. 7 of the E.P., that I.A. No. 1044 of 1988, filed by the 1st respondent i.e. the Judgment-debtor No. 1, is pending, and that there is no stay of execution. For one reason or the other, E.P. No. 393 of 2005 was not proceeded with, till 2007. After the decree was passed against the 3rd respondent also, the E.P. was taken up. At that time, the petitioner filed E.A. No. 567 of 2007, and the 4th respondent filed E.A. No. 568 of 2007 in the E.P., under Order 47 of C.P.C. with a prayer to dismiss the E.P. against them, on the ground that it was barred by limitation. The application was opposed by the respondents 1 and 2. Through common order dated 18-12-2007 the Executing Court dismissed both the applications. The 2nd respondent died in the meanwhile. This C.R.P. is filed by the petitioner, feeling aggrieved by the order in E.P. No. 567 of 2007.

Sri Hari Sreedhar, learned Counsel for the petitioner, submits that the ex parte decree dated 10-06-1988 passed against the petitioner became final, and the E.P. ought to have been filed within 12 years from that date. He contends that the said ex parte decree, in so far as it was against the petitioner, was not the subject-matter of any proceedings before the Trial Court, Appellate Court or this Court, and the stay granted in C.R.P. No. 1891 of 1995, at the best, operated vis--vis the proceedings between the respondents 1 and 2, on the one hand, and respondent No. 3, on the other hand, and that it cannot have the effect of stopping the limitation from running. Learned Counsel submits that the trial Court had extended the benefit of Section 15 of the Act to the respondents 1 and 2, without any basis.

Sri Ghanshyamdas Mandhani, learned Counsel for the 1st respondent, on the other hand, submits that the stay granted by this Court in C.M.P. No. 7990 of 1995 in C.R.P. No. 1891 of 1995, on 15-06-1995 is comprehensive enough and thereby, Section 15 of the Act gets attracted to the facts of the case. He contends that an identical application filed by the petitioner, on earlier occasion, was dismissed and thereby, E.A. No. 567 of 1997 was not maintainable in law, at all.

The only question that arises for consideration in this case is, as to whether the stay granted by this Court in C.M.P. No. 7990 of 1995 in C.R.P. No. 1891 of 1995, would have the effect of stopping the limitation for filing E.P., for execution of the ex parte decree in O.S. No. 690 of 1987, vis--vis the petitioner.

It has already been pointed out that ex parte decree for recovery of possession of suit schedule property in separate extents, was passed on 10-06- 1988. On their part, the petitioner and the 4th respondent did not take any steps to assail the ex parte decree. It was only the 3rd respondent, that filed an application under Order IX Rule 13 C.P.C., to set aside the ex parte decree against him. It is also a matter of record, that the extents of the land, to be recovered from each of the defendants, were separate and clearly set out. It was only on 15-06-1995, that this Court granted stay of all further proceedings in the suit, vide its order in C.M.P. No. 7990 of 1995 in C.R.P. No. 1891 of 1995.

E.P. No. 393 of 2005 was filed even while I.A. No. 1044 of 1988 was pending before the trial Court, after remand by this Court, but after cessation of stay, in C.R.P. No. 1891 of 1995. Till 14-11-2007, the suit stood decreed only against the petitioner herein and respondent No. 4, and on that day, the suit was decreed against the 3rd respondent also. The only difference is that, while the decree against the petitioner and the 4th respondent was ex parte in nature, the one, against the 3rd respondent, was on merits. Before 14-11- 2007, it was only the ex parte decree, against the petitioner and the 4th respondent, that was capable of being executed, obviously, in view of pendency of I.A. No. 1044 of 1988. Either the 1st respondent did not evince much interest, or the Court did not proceed with the execution. At a time, when vigorous steps were being taken in E.P. No. 393 of 2005, the petitioner filed E.A., with a prayer to dismiss the E.P., on the ground that it is filed beyond the period of limitation. The Executing Court dismissed the E.A.

If no event had intervened between the date of decree, against the petitioner i.e. 10-06-1988, and the date of filing of the E.P., viz., 14-07- 2004, it is clearly barred by limitation. The period of limitation prescribed for filing of an E.P., is 12 years, whereas it was filed, in the instant case, after 16 years. The 1st respondent claimed the benefit u/s 15 of the Act. It reads as under:

Section 15: Exclusion of time in certain other cases:

(1) In computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.

(2) In computing the period of limitation for any suit of which notice has been, given or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or as the case may be, the time required for obtaining such consent or sanction shall be excluded. Explanation: In excluding the time required for obtaining the consent or sanction of the government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the government or other authority shall both be counted.

(3) In computing the period of limitation for any suit or application for execution of a decree by any receiver or interim receiver appointed in proceedings for the adjudication of a person as an insolvent, or by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company, the period obtaining with the date of institution of such proceeding and ending with the expiry of three months from the date of appointment of such receiver or liquidator, as the case may be, shall be excluded.

(4) In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded.

(5) In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government shall be excluded.

Section 5 of the Act does not apply to the filing of suits and the execution applications. Therefore, the question of condonation of delay does not arise. It is only when the circumstances mentioned in Section 15 are proved, that the plaintiff or the decree-holder, as the case may be, can avail the benefit of exclusion of the time during which, he was incapacitated from instituting the said proceedings. From a bare reading of the provision, one would gain an impression, that the benefit u/s 15 of the Act can be extended only when the institution of the suit or execution petition, has been stayed through an injunction or order, for the corresponding period. In other words, the stay or order must incapacitate the concerned party from instituting the proceedings.

The question, as to whether the stay of institution of the proceedings, contemplated u/s 15 must be absolute, in its terms or can be partial; had fallen for consideration before the Supreme Court in Sirajul Haq Khan and Others Vs. The Sunni Central Board of Waqf, U.P. and Others, . Extensive discussion was undertaken by the Supreme Court and a detailed reference was made to the judgments rendered by the Privy Council in AIR 1932 165 (Privy Council); AIR 1933 1 (Privy Council) , and AIR 1945 5 (Privy Council) . It was ultimately observed that the stay need not be absolute in its terms and even a partial stay, would have the effect of extending the period of limitation.

Para 19: ...It is plain that, for excluding the time under this section, it must be shown that the institution of the suit in question had been stayed by an injunction or order; in other words, the section requires an order or an injunction which stays the institution of the suit. And so in cases falling u/s 15, the party instituting the suit would by such institution be in contempt of court. If an express order or injunction is produced by a party that clearly meets the requirements of Section 15. Whether the requirements of Section 15 would be satisfied by the production of an order or injunction which by necessary implication stays the institution of the suit is open to argument....

Two-and-half decades later, the Supreme Court reiterated the same view in its judgment in Anandilal and Another Vs. Ram Narain and Others, , wherein it observed:

Para -11: Agreeing with the Full Bench, we are inclined to the view that the word "execution" in Section 15(1) embraces all the appropriate means by which a decree is enforced. It includes all processes and proceedings in aid of, or supplemental to, execution. We find no rational basis for adopting a narrow and restricted construction on a beneficent provision like the one contained in Section 15(1). There is no reason why Section 15(1) should be given a restricted meaning as allowing the benefit to a decree-holder where there is a complete or absolute stay of execution and not a partial stay, i.e. a stay which makes the decree altogether inexecutable. Nor can we subscribe to the proposition that in cases of partial stay, the benefit u/s 15(1) can be had only where an execution application is directed against the same judgment-debtor or the same property, as against whom an execution was previously stayed. Stay of any process of execution is therefore stay of execution within the meaning of the section. Where an injunction or order has prevented the decree-holder from executing the decree, then irrespective of the particular stage of execution, or the particular property against which, or the particular judgment-debtor against whom, execution was stayed, the effect of such injunction or order is to prolong the life of the decree itself by the period during which the injunction or order remained in force. The majority view to the contrary taken by some of the High Courts overlooks the well settled principle that when the law prescribes more than one modes of execution, it is for the decree-holder to choose which of them he will pursue.

In the instant case, it is no doubt true that the ex parte decree passed against the petitioner was not the subject-matter of, either an application under Order IX Rule 13 C.P.C., or other proceedings, be it, at the instance of the petitioner, or the 1st respondent. The fact, however, remains that in C.M.P. No. 7990 of 1995 in C.R.P. No. 1891 of 1995, this Court granted stay of "all further proceedings, including the trial in O.S. No. 690 of 1987", through its order dated 15-06-1995, and it was in force till the C.R.P. was disposed of, on 10-09-1999. The fact that the stay was granted at the instance of the 1st respondent, hardly makes any difference. The stay granted by this Court was against all further proceedings, and the trial of the suit was only illustrative in nature. The other proceedings take in its fold, the execution of the decree also, even if it was against the persons, who are not parties to the C.R.P. Consequently, if the period between 15-04-1995 and 10-09-1999 is excluded, the E.P. would be within limitation. The Executing Court had considered these aspects and dismissed the E.A. This Court is in agreement with the view taken by the Executing Court. At any rate, the E.P. has since been closed, recording the delivery of possession.

Before parting with the case, this Court place on record, the able and effective assistance extended by the learned Counsel for both the parties.

The C.R.P. is accordingly dismissed. There shall be no order as to costs.