Maulvi Jamil Ahmed vs Babu Kesho Das and Others

Kulwant Sahay, J.—This is an appeal against the order of the Subordinate Judge of Patna, dated the 8th January 1921, dismissing the appellant''s objection to the execution of a decree. On the 4th of September 1905 a mortgage decree was paused against Musammat Bibi Fasihan. Execution was once taken out of the decree in the life time of Bibi Fasihan in the year 1908, which was dismissed in March 1910. Bibi Fasihan died, and fresh executions were taken out against her heirs. The fourth application for execution was filed on the 4th of October 1912 which was registered as Execution Case No. 115 of 1912. In the course of this fourth execution an application was made 011 the 27th of November 1912 by Saiyid Abdul Fateh alias Mohammed Umar, one of the heirs of Bibi Fasihan, praying for postponement of the sale, and on that date an order was passed upon that application to the following effect:--"It is ordered that the sale be postponed on payment of Rs. 100 as cost but if the judgment-debtor will take further time after, fresh proclamation they will have to give damage at the rate of 6 per cent, per annum in addition to the interest given in the decree as the decree-holder had been much troubled with frivolous objection. "The cost of Rs. 100 awarded under this order was paid and the sale was adjourned. In the course of the said execution proceeding a petition was filed by Muhammad Kali-muzzafar, another judgment-debtor, on the 16th June 1913, praying for postponement of the sale of one of the properties, and the Court allowed the prayer and postponed the sale of that property which was lot No. 3. That execution case was ultimately dismissed on 22nd July 1914. Fresh execution was taken out on the 17th September 1914 which was dismissed on the 30th of July 1915. On that very day, i.e., 30th July 1915 another application for execution was filed, and it was registered as Execution Case No. 115 of 1915. On the 25th September 1915 two of the judgment-debtors, Musammat Bibi Habiba and Muhammad Abul Fatah alias Muhammad Umar, ajjaih applied for postponement of the sale, and the Court was on that date again pleased to postpone the sale on payment of Rs. 100 as cost to the decree-holders. The crdtit of the 25th September 1915 after postponing the sale and awarding Rs. 100 as cost to the decree-holders proceeded as follows : "It has been brought to my notice by the decree-holder''s Pleader that, in accordance with the order No. 7 of 27th November 1912, passed in Execution Case No. 115 of, 1912, they are entitled to get damages at 6 per cent, per annum on the decretal, amount should the judgment-debtors again apply for time. I have seen that order to-day and I find that the order directs damages at 6 per cent per annum to be given to the decree-holders in addition to the visual interest allowed in the decree. It appears that the judgment-debtors again applied for time and so the order should be now put in force. The Vakils for the aforesaid judgment-debtors raised no objection to the above order being enforced. I direct accordingly that a fresh proclamation -be issued fixing the 24th November, after incorporating the damages at the above rate in the account if it is not already included in it, the date from which the damage is to be calculated being the 16th June 1913 which was the next sale day after the passing of the order referred to above." Thereafter, it appears that two objections were filed on behalf of Bibi Habiba and Abul Fateh alias Umar to the effect that they were not bound by the order of the 27th November 1912 under winch damages were allowed in Execution Case No. 115 of 1912 and that the amount of the damages should not be included in the account of the decree which is a mortgage-decree. By an order dated the 23rd February 1916, the Court disallowed the first objection but allowed the second objection and ordered that "the item of damages be excluded from the account, which the decree holders are at liberty to realize by a separate execution." On the 21st February 1919 the decree-holder applied for execution of the order of the 27th of November 1912 for realization of the damages awarded under that order. This application was dismissed on the 26th of March 1919. A second application for execution of the same order was made on the 17th April 1919 which was dismissed on the 26th November 1919. The present application for execution of the order of the 27th of November 1912 was made on the 9th of December 1919. In the meantime, sometime in the year 1918, the estate of Bibi Fasihan was placed in the hands of a Receiver who now represents all the judgment-debtors, the heirs of the original debtor Bibi Fasihan. The Receiver filed an objection, to the execution of this decree on the ground that the Court had no jurisdiction to award damages and even if it had all the parties being not represented, the Receiver is not bound there by secondly, that the execution was barred by limitation, and, thirdly, that the order awarding damages is in the nature of a penalty and that order should-, not be executed. The learned Subordinate Judge, by his order dated the 8th of January 1921, has disallowed the objections, and the present appeal is preferred by the Receiver against this order. The points taken by the learned Counsel on his behalf are: (1) that the order awarding the damages was illegal and is not binding on the Receiver; (2) that there is no order which is capable of execution, and (3) that in any event the application for execution is barred by limitation.

As regards the first objection, it is argued on behalf of the decree-holders respondents that the Court had power to put the parties to terms on granting adjournment of the sale. On reference to the order of the 27th of November 1912, it appears that the Court did, as a matter of fact, award Rs. 100 as cost, before postponing the sale. The further direction for payment of damages was in the event of a fresh application for postponement being made at some uture date. Now, the sale was postponed on the 27th of November 1912 at the instance of only one of the judgment-debtors. The other judgment-debtors did not apply for postponement'' and the application of Abul Fateh of the 27th of November 1912 related not to all the mortgaged properties but only to the property with which he was concerned. In my opinion, the Court had no jurisdiction to make an order awarding damages for an event which might or might not occur at some future time. On the 16th of June 1913 the sale of one of the properties, namely, lot No. 3, was postponed on the application of another j figment-debtor, Kalimuzzaffar. The other judgment-debtors did not on that date apply for postponement of the sale of their properties, and assuming that the order of the 27th of November 1912 awarding damages was a good order so far as Abul Fateh was concerned, the fresh application for postponement made by Kalimuzzafar on the 16th of March could not bring into operation the effect of the order of the 27th of November 1912.

The next order, which is of importance, is that of the 25th of September 1915. Now, that order was passed on the application of only two of the judgment-debtors, Musammat Bibi Habiba and Muhammad Abul Fateh alias Muhammad Umar. By that order the Court merely ordered that the damages awarded by the order of the 27th November 1912, should be calculated and incorporated in the account for the sale of the mortgage properties. This order of the 25th of September 1915 did not independently award any damages; it simply ordered the damages to be incorporated in the general account under the mortgage decree. It has been argued that this was a consent order and, therefore, all the judgment-debtors are bound by it, but on reference to the order sheet it would appear that the consent was, given only by the two judgment-debtors, Musammat Habiba and Muhammad Umar, the other judgment-debtors do not appear to be parties to this order and it does not appear that this order was passed in their presence or that they were consenting party thereto.

The next order which it is necessary to notice is the order of 23rd February 1916. Now, this order again was made (in the application of the said two judgment-debtors, Bibi Habiba and Abul Fateh, and by this order the order of the 25th of September 1915 was cancelled and it was ordered that the damages should not be incorporated in the general account under the mortgage-decree, and the decree-holders were at liberty to realize the damages by Separate execution. This order also is not an order which awarded damages and which is capable of execution. The order of the 25th of September 1915 directed the damages to be incorporated in the general account, while the order of the 23rd February 1916 directed that the damages should be excluded from the general account. Therefore, there is, as a matter of fact, no order awarding damages at 6 per cent, per annum which is binding on all the judgment-debtors and which is capable of execution; and, in my opinion, the objection of the Receiver who now represents all the judgment-debtors is valid and it must be held that the order of the 27th of November 1912, if it be held to be an order which is capable of execution, is not binding on all the judgment-debtors, and the orders of the 25th of September igi5�and 23rd February 1916 are not orders awarding damages which are capable of execution.

In the next place, it contended that the order sought to be executed is the order of the 27th of November 1912. I have held that this is not an order which is capable of execution inasmuch as it does not award damages independently but it makes a conditional order that, in the event of airy future application for adjournment, the judgment-debtors will have to pay damages and no order has yet been made, as a matter of fact, awarding the damages. But, assuming that the order of the 27th of November 1912 is capable of execution, the application which was for the first time made for the execution of that order on the 21st February 1919 was barred by limitation. It is said that the order of the 23rd February 1916 saves limitation, but that order was made on the application of two of the judgment-debtors, and it merely directed-that the damages should not be included in the general account of the mortgage-decree. There was no application by the decree-holders on that date and it cannot be said that that order gave a fresh start to the period of limitation. If the order of the 27th of November 1912 be held to be a valid and binding order it came into operation on the 16th of June 1913 when application for postponement of the sale was made for the first time after that order, and the a0 Vacation of the 21st February 1919 being beyond three years from that date wars barred by limitation. In this view of the matter, the objection of the Receiver must be allowed and the order of the Court below set aside.

The result is that this appeal is decreed with costs.

Das, J.

I agree.