Tribeni Prasad Dhandhania vs Sita Ram Poddar and Others

Lalit Mohan Sharma, J.—A money decree was obtained by the original respondent Ramjivan Pd. Poddar against the appellant on 29-6-I9G2 and it was put in execution case no 54 of 1962. A building was mentioned in the Taluka of the execution petition which was attached. An application under Order 21, Rule 58 of the CPC was filed by one Hanumandai Devi which was dismissed. The claimant thereafter filed a suit registered as Title Suit No. 27 of 1965 and her claim was ultimately decreed. As a result, the attached property was released and since there was no other property mentioned in the execution petition, the decree-holder filed an application in 1976 for substituting another property. The appellant-judgment-debtor objected to the prayer on the ground of limitation, but the plea has been rejected by both the courts below. He has now come to this Court, reiterating his stand that since the prayer for inclusion of a new property in execution case has been made after 12 years, the same cannot be allowed and the case must be struck off.

On behalf of the decree-holder, it has been contended that the claimant Hanumandai Devi filed an application for stay of the execution case in her suit, T. S. 27 of 1965, and that an order was passed which remained operative from 2-8-1966 to 19-6-1975 and this period should be available to him. In reply, the judgment-debtor contends that the stay order operated only so far as the property claimed by Hanumandai Devi was concerned and as the decree-holder was entitled to proceed against any other property belonging to the judgment-debtor, the aforesaid period is not available for being added to the period of limitation.

Mr. S. K. Sarkar in support of the appeal contended that since the stay, granted during the pendency of Title Suit No. 27 of 1965 and the appeal arising therefrom, was limited in terms, the provisions of Section 15(1) of the Limitation Act cannot come to the aid of the respondent for saving limitation. Reliance has been placed on the decisions in Raja Kirtyanand Singh and Others Vs. Raja Pirthiohand Lal Choudhri, , Virchand Kapurchand v. Marualappa (AIR 1944 Bom 303), Kundo Mal v. Firm Daulat Ram, (AIR 1940 Lah 75) and Lala Baijnath Prosad and Others Vs. Nursingdas Guzrati, . He has further argued that the amendment of the execution petition by addition of a new property is also subject to limitation.

It has been well established that an application for amendment of a pending application for execution, made after the decree sought to be executed had become barred by limitation, cannot be entertained. Reference may be made to several decisions of this Court including that of Jagannath Das Vs. Chamu Raghunath Khuntia, . Since the decree was passed in 1962, the period of limitation for its execution must be held to have expired before 1976, unless saved by Section 15(1) of the Limitation Act as contended by the decree-holder. The question, therefore, to be decided in this case is as to whether Section 15(1) of the Limitation Act, which is in the following terms, is applicable in the present case :--

"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 or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded."

Before the decree-holder can be permitted to rely upon Section 15(1) of the Limitation Act, he has to show that the execution of the decree had been stayed by an order passed in T. S. 27 of 1965. Initially an order was passed on 23-2-1965 by the trial court in T. S. 27 of 1965 restraining the decree-holder from proceeding with the execution case in respect to the holding No. 36 claimed by the plaintiff Hanumandai Devi, but subsequently in appeal from the suit the District Judge, Bhagalpur, had stayed the entire execution case, as is apparent from copy of the order dated 7-7-1965 on the records of the execution case. It is, therefore, contended by the respondents that in view of the execution case itself having been stayed the period during which the stay order continued must be excluded u/s 15(1) of the Limitation Act. I am not in a position to accept this contention. For applying the section, it is not sufficient merely to show that a particular execution case was stayed, it should be further shown that the execution of the decree in any manner whatsoever, was stopped. A Division Bench of this Court in Raja Kirtyanand Singh and Others Vs. Raja Pirthiohand Lal Choudhri, had held that the section contemplates an absolute stay of execution which renders the decree-holder incapable of taking out execution of the decree.

In Lala Baijnath Prosad and Others Vs. Nursingdas Guzrati, , it was observed that Section 15(1) applies also to cases of partial stay, but only so as to allow exclusion of the period of stay in the computation of time for further execution against the person or the property, as against whom or which execution was previously stayed, and not so as to allow exclusion of that period for the purposes of future execution against persons or properties not affected by the stay order. Similar was the view taken by the Bom. High Court in Virchand Kapurchand Vs. Marualappa, . As was observed by the Privy Council in AIR 1945 5 (Privy Council) , the question is dependant upon the nature of the stay order. In that case, the point arose with reference to a suit and the plaintiff relied upon an order of injunction, issued earlier, restraining him from interfering with the possession. It was held that since there was no prohibition restraining the plaintiff of the second suit from instituting a suit for possession, he could not take advantage of Section 15. The principles which can be extracted from these decisions is that a party seeking to take advantage of Section 15 of the Limitation Act must show that he was earlier restrained by an order from making the prayer, which he is now making; if he could have done earlier what he is trying to do now, he cannot invoke the application of the section. In the present case, the stay was obtained by the plaintiff Hanumandai Devi so far her property was concerned. The decree-holder was perfectly entitled to start another execution case against the judgment-debtor by pursuing against his person or property. So I hold that the prayer for inclusion of a new property in 1976 must be rejected as being barred by time.

In the result the appeal is allowed the orders pased by the courts below are set aside and the execution case is struck off. Since the appellant is succeeding merely on a plea of limitation, parties are directed to bear their own costs throughout.