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SUPREME COURT OF INDIA
A.P. SEN AND V. BALAKRISHNA ERADI, JJ.
Anandilal and another,Appellants
Versus
Ram Narain and others Respondents.
Civil Appeal No, 109 (N) of 1971
Decided on 10-5-1984.
(2) Limitation Act, 1963-S.15 (1) & Art. 136-continues in substance the provisions of section 48 of the Civil P.C., omitted by that Act.
It is well settled that section 48 of the Code was controlled by section 15 (1) of the Limitation Act. Section 48 of the Code enacted a rule of limitation and prescribed a period of 12 years for an application for execution of decrees and orders. It has since been repealed by section 28 of the Limitation Act, 1963 which enacts that "in the Code of Civil Procedure, 1908 (Act V of 1908), section 48 shall be omitted". In its place a new provision Article 16 has been introduced and that prescribes “for the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court a period of 12 years", etc. Thus, the substance of section 48 continues to be the law. [Para 6
(3) Interpretation of Statutes-a provision omitted-new provision inserted substantially continues the provision of the omitted one-new provision may be interpreted with the aid of the law laid down under the omitted provision.
The substance of the omitted section 48 of the CPC is freshly enacted in Art. 136 of the Limitation Act the law laid down in decisions interpreting the omitted Sec. 48 of the CPC might be referred to give reasons in deciding pending applications [Para 6
(4) Limitation Act. 1963-S. 15 (1)-interpretation of-has always controlled the provisions of section 48 of CPC-now replaced by Art.136 of the Limitation Act, 1963. There is no justification for placing rigid construction on a beneficial provision like section 15 (1) of the Limitation Act.
Both the enactments have through out been treated as supplementary to each other, and concern with procedural law. It is also true that in construing statutes of limitation considerations of hardship and anomaly are out of place. Nevertheless, it is, we think, permissible to adopt a beneficent construction of a rule of limitation, if alternative constructions are possible. It is plain on the terms of Sec. 15(1) that the word "execution" appearing in the collocation of words "the execution of which has been stayed” must be construed in a liberal and broad sense. [Para 10
(5) Limitation Act, 1963-S.15-similar to this section of 1908 Act-execution stated against particular properties, that is stayed partially-period should be excluded without considering partial nature of the stay-meaning of the word "execution".
(6) Words & Phrases-execution-meaning of-Limitation Act, 1963-Art.136.
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. There is 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 an not a partial stay i.e. a stay which makes the decree altogether inexecutable. Nor can to the proposition be subscribed that in. cases of partial stay, the benefit under section 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 Of 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. 1970 JLJ 125 affirmed ILR 9 Cal. 773, AIR 1914 Bom. 211, AIR 1918 Upper Burma 4 and AIR 1921 Cal. 606 approved. AIR 1944 Nag. 155, AIR 1940 Lah 75, AIR 1944 Bom. 303, AIR 1924 Bom. 383 & AIR 1929 Pat. 597 overruled. [Para 11
JUDGMENT
A. P. SEN, J.:— The short point involved in this appeal by certificate from the judgment and order of a Full Bench of the Madhya Pradesh High Court dated October 17, 1969 (Reported in AIR 1970 Madh Pra 110) is whether a partial stay of execution of the decree like the one in question staying sale of the attached property is within sub-section (1) of Section 15 of the Limitation Act, 1908 so as to entitle the decree-holder to claim exclusion of the period during which there was stay of sale but the property was to continue under attachment, for the purpose of computation of the period of limitation provided by Section 48 of the Civil P. C., 1908. Since the question involved is a substantial question of law, the High Court has granted a certificate of fitness under Art. 133(1)(c) of the Constitution.
2. Facts are somewhat complicated but it is necessary to disentangle them to bring out the point in controversy. One Ghasiram, the predecessor-in-title of the present respondent No. I Ram Narain obtained a decree for Rupees. 5,548.18p. from the Court of the District Judge, Ujjain against one Bheraji, the predecessor-in-title of respondents Nos. 2 and 3 Chunnilal and Anandilal, now the judgment-debtors. The decree, was affirmed in appeal by the Gwalior High Court on April 5, 1938. During the pendency of the appeal, the High Court stayed execution of the decree under O. 41, R. 5 of the Code on condition that the appellants-defendants furnished security for the due satisfaction of the decree. Ratanlal father of the two appellants Anandilal and Jankilal, executed a surety dated August 3, 1927. Against the decree passed by the High Court, the defendants preferred a revision before the Judicial Committee of the Gwalior State which came to be dismissed, on February 14, 1941. While the revision was pending before the Judicial Committee, the decree-holder Ghasiram put the decree in execution against the judgment-debtors as also against the surety on February 23, 1939 for attachment and sale of their immovable properties. It appears that some houses and certain zamindari lands of the surety Ratanlal were attached in execution of the decree. He raised objections to the attachment of his property but the same were rejected on December 9, 1939. Against the order dismissing his objections, the surety Ratantal filed an appeal before the Gwalior High Court which was dismissed on July 22, 1940. He then filed a Miscellaneous Appeal before the Judicial Committee of the Gwalior State.
3. It is common ground that in that appeal the Judicial Committee passed an interim order dated August 16, 1940 directing that until further orders the properties attached in execution shall continue to remain under attachment but further proceedings for the sale thereof shall remain stayed. On November 24, 1944 the Judicial Committee dismissed the said appeal and consequently the interim stay stood dissolved. Thereafter, the present respondent No. 1 Ram Narain appears to have purchased the decree from the heirs of the original decree-holder and the execution proceedings were resumed The execution application filed by him was however dismissed for default on June 11, 1945. It was restored on December 14, 1946 but was again dismissed for default on January 21, 1954 as the counsel for the decree-holder stated that he had no instructions. Thereafter, a fresh application for execution was filed by the decree-holder on February 18, 1954. This application was opposed by the surety Ratanlal inter alia on the ground that it was barred by limitation having been filed beyond the period of 12 years prescribed by S. 48 of the Code.
4. The question, is whether respondent No. 1, Ram Narain, the assignee decree-holder, was entitled to exclusion of the period from August, 16, 1940 to November 24, 1944 under Section 15(1) of the Limitation Act for computation of the period of 12 years prescribed under Section 18 of the Code. The District Judge, Ujjain rejected the objection raised b
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