Bapurao vs Hanumanthrao and Others

There is no dispute as regards the facts of this case. The decision of this case turns upon the interpretation of Section 262, Civil P.C, with reference to the particular facts of this case. This appeal has been filed by the legal representative of the judgment-debtor in execution proceedings. The predecessor-in-interest of the respondent obtained a decree against the predecessor-in-interest of the present appellant on 12th Farwardi 1307 Fasli which was as follows:

The plaintiff''s suit is decreed. A decree is passed in favour of this plaintiff in these terms that he would be entitled to receive from the defendant every year half of the POTGI amount after deduction of the amount payable to the Gumastha.

The plaintiff''s suit in this case was that the plaintiff''s maternal grand-father had made an equal division of the property that he held which included a Vatan of Patwari-Giri and divided the shares between the plaintiff''s father and the defendant''s father. In 1301 Fasli the plaintiff demanded from the defendant his share of the emoluments of Patwari-Giri (Iskel) which he refused to give. Hence a decree be passed in his favour that he is entitled to receive from the defendant half of the Iskel of Patwari Giri. This suit was decreed and the decree was passed in the terms sot forth above.

The decree-holder filed his first application for execution on 5th Farwardi 1354 Fasli praying that he be given the Iskel of Patwari Giri for 6 years i.e., from 1348 Fasli till 1351 Fasli. The judgment-debtor resisted the execution on three grounds viz., that the decree was a mere declaratory decree and could not be executed; secondly that the application for execution was filed after the lapse of more than 12 years of the date of the decree and that, therefore, the execution application was barred u/s 262. He raised Anr. objection namely that the judgment debtor against whom the decree was passed was dead and now execution was being sought against the legal representatives of the original judgment-debtor and a decree could be executed against the legal representatives of the judgment-debtor only as against the assets of the deceased judgment-debtor in the hands of the legal representative and it could not be said that the Iskel of Patwari Giri was an asset within the meaning of Section 264, Civil P.C., against which execution could be sought. The Courts below have held against the judgment debtor and hence this appeal.

As regards the first contention of the judgment-debtor that the decree is a declaratory decree and, therefore, not executable it is urged on behalf of the respondent that the matter could not be against here again as it had been finally concluded by the judgment of the District Court on 12th Isfandar 1855 Fasli by which it was hold that this objection that the decree is not executable was overruled, and this judgment of the District Court was upheld by the Sadar Adalat, and this order has become final. The advocate to for the respondent supported his argument by rulings of the Madras High Court in this respect to say that when parties put in issue the question of the right to execute a decree and a decision is given that the decree is executable, the party aggrieved cannot canvas the game argument over again in the same case. His remedy was to have appealed and not having appealed the order had become conclusive and operated as res judicata. As regards this objection of the vakil for the respondent, we find, on a perusal of the subsequent judgment of the first Court that this matter was not finally adjudicated upon, because it is clear from the final judgment of the first Court that the Court again want into the question of the excitability of the decree and also considered the question of limitation. Under these circumstances, the objection of tin respondent that the order of 12th Aban 1335 Fasli was conclusive cannot be sustained.

The next question tint has to be considered is as to whether the decree that was passed is in the nature of a declaratory decree or whether it is a decree directing payment of an amount at fixed periods recurring year after year. We have gone through the decree. Tao words of the decree dearly indicate that the decree is one for payment of a half of the iskel of patwari giri which is payable at a particular period year after year. We, therefore, hold that it is not a declaratory decree. Therefore, the question of the excitability of the decree cannot arise. The next argument advanced on behalf of the advocate for the appellant is that the decree does not mention any fixed amount nor U the date stipulated and being indefinite as regards the amount payable and the date when it is payable it is incapable of execution. We are of opinion that there is no force in this argument. In this case the decree does enjoin the payment of half of the iskel of patwari giri, and what the half of the iskel is can very wall be ascertained. It directs the payment of half of the amount that the appellant receives from the revenue by way of iskel (emoluments) of patwari giri. As regards the date, it would be the date on which the appellant is paid the amount by the Revenue Department. The date and the amount could be ascertained from a construction of the decree and this is allowed under the law. On these grounds, we feel that both the contentions of the appellant as regards the inexcusability of the decree cannot stand.

A third argument has been advanced to say that inasmuch as this decree is being executed against the legal representative of the original judgment-debtor it can only be executed against the assets in his hands and inasmuch as patwarigiri is in the nature of a grant by the Government about which one cannot say with certainly that the iskel could to paid, no execution can be taken for recovery of iskel amount. This argument appears to be very fantastic. It has been held times without number by this High Court that there can always be a suit for a declaration of the right to patwarigiri and the right to receive the iskel. It is left to the Revenue Department to appoint whomsoever it likes foe the carrying on of the duties of patwari giri but the right to patwarigiri or the right to receive the iskel, has always been held to be a hereditary right any a person can always sue for the enforcement of his right to a share in the iskel in the patwarigiri. This argument also is of no avail. The last and the final argument of the learned Advocate for the appellant is that the execution application is barred under, Section 262, Civil P.C., inasmuch as it was filed after the expiry of 12 years from the date of the decree. In view of the conclusion that we have arrived at that this is a decree for the payment of an amount at stated period, the question of the 12 years period of limitation does not arise, because the right to apply accrues to the decree-holder each time when the amount is paid by the Revenue Department. One can always ask for payment of the iskel for three years. We, therefore, hold against the appellant in this regard. The respondent has filed an appeal against that portion of the judgment by which the lower Court has merely given a decree in his favour for the amount of iskel for 3 years and has held that the iskel beyond that period to be barred and irrecoverable.

It is argued before us that inasmuch as the appellant got the arrears of iskel only with, in three years of the date on which the exaction application was filed, the right accrued to the decrees-holder only when the appellant received the amount, and under Article 160, Clause 6, Limitation Act, the right to apply accrued to the decree-holder only when the amount was actually received by the appellant. We are not in agreement with the respondent that the right to apply for execution accrued to the decree holder only when the appellant received the amount. As per the terms of the decree, the amount of iskel is payable every year and the decree-holder should apply for payment of that amount of iskel with in three years of the date when it became payable. Under these circumstances, we are inclined to dismiss the appeals of the appellant and the respondent. The respondent will receive his costs from the appellant in his appeal and the appellant his costs in the appeal of the respondent.