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1920 Supreme(SC) 69
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT CAVE, LORD MOULTON, AND LORD PHILLIMORE.
MAHARAJA OF DARBHANGA - Appellant
Versus
HOMESHVAR SINGH - Respondents
On Appeal From the High Court at Patna.
Decided On : Nov. 16. 1920.
Solicitors for appellant: Pugh & Co.
Solicitors for respondents: Barrow, Rogers & Nevill.
A decree limited to property in the judgment debtor's possession is not 'capable of execution' under the Limitation Act until the debtor actually obtains possession. The limitation period begins only when the decree becomes enforceable under the specific circumstances of the case.
Headnote:(A) Indian Limitation Act, 1908 - Article 182 and Article 181 - Execution of decree - Limitation period - Decree limited to property in possession of the judgment debtor - Whether limitation begins to run when the decree is passed or when the property actually comes into possession of the judgment debtor - A decree must be in such a form as to render it capable in the circumstances of being enforced for the limitation period under Article 182 to apply - Where a decree is limited to the sale of property belonging to a deceased person only if it is in the possession of the defendant, and the defendant does not obtain possession until a later date, the decree is not capable of execution until such possession is obtained - In such cases, the period of limitation is governed by Article 181, starting from the time when the right to apply for execution accrues.
(B) Limitation - Application of statutes - A statute of limitations cannot be applied so as to entirely exclude the exercise of a right given by a decree.
Facts of the case:
A decree was passed for the realization of a sum of money through the sale of property belonging to a deceased person, specifically limited to the portion of the property in the possession of the defendant. The decree explicitly stated that the plaintiff had no right to any portion of the property in the possession of anyone other than the defendant. The defendant did not obtain possession of the said property until several years later, following the final resolution of a title dispute with another claimant. The decree holder applied for execution shortly after the defendant obtained possession. The trial court held the execution was not barred, but the appellate court reversed this, stating the application should have been made as soon as a lower court had initially decided the title in favor of the defendant.
Findings of Court:
The court found that the decree was limited in scope and did not make the defendant personally liable, nor did it extend to any portion of the estate of the deceased that was not in the defendant's hands. Consequently, the decree was not capable of execution until the defendant actually obtained possession of the property.
Issues: Whether the execution of a decree limited to property in the possession of the defendant is barred by limitation if the defendant only obtains possession after the three-year period from the date of the decree has expired.
Ratio Decidendi: The court ruled that the three-year limitation period under Article 182 of the Schedule to the Indian Limitation Act, 1908, refers only to an order or decree made in such a form as to render it capable in the circumstances of being enforced. Since the decree was specifically limited to property in the defendant's possession, and he had no such possession until the title dispute was resolved, the right to apply for execution only accrued upon the acquisition of possession. Therefore, the application was governed by Article 181, which provides three years from the time when the right to apply accrues.
Result: Judgment of the High Court reversed and the decree of the Subordinate Judge restored.
Legal Category Hierarchy
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practice and procedure
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civil procedure
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execution of decrees
- limitation
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execution of decrees
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civil procedure
Judgement
Appeal from a judgment and decree of the High Court (May 4, 1917) reversing a decree of the Subordinate Judge of Bhagalpur (January 19, 1916).
The sole question in the appeal was whether the execution of a decree made in a civil suit and dated July 27, 1906, was barred by limitation upon the appellant applying on December 18, 1914, to execute it.
The facts appear from the judgment of their Lordships.
The decree of July 27, 1906, was in the following terms " .... it is ordered and decreed that the plaintiffs claim be decreed together with costs and interest at six per cent, per annum and the decretal amount be realized by the sale of the property belonging to Janeshvar Singh, which is in the defendants possession, and by virtue of this order the plaintiff will have no right to any portion of the property of Janeshvar Singh, which might be in possession of any one else except the defendant, and that the sum of Rs. 18,738-15-9, the amount claimed and Rs. 1286-10-0 on account of the costs of this suit be paid by the defendant to the plaintiff with interest thereon at the rate of six per cent, per annum from this date until realization."
The Subordinate Judge held that execution of the decree was not barred, since the property of Janeshvar did not come into the hands of Ekradeshvar until December, 1914.
Upon an appeal to the High Court the decision of the Subordinate Judge was reversed, it being held that execution of the decree was barred by art. 182 of Sch. I. in the Indian Limitation Act. The learned judges (Sharfuddin and Roe JJ.) were of opinion that the decree had not been incapable of execution. They said that immediately on Ekradeshvar obtaining a decree against the widow of Janeshvar—namely, on August 25, 1908, application should have been made to execute the decree of July 27, 1906 ; although upon the appeal a sale of the property would no doubt have been stayed by injunction, s. 15, sub-s. 1, of the Act would have prevented execution from becoming barred.
1920. Oct. 25, 26. De Gruyther K.C. and Abdul Majid for the appellant. Execution of the decree of July 27, 1906, was not barred by limitation. Until December, 1914, when Ekradeshvar first came into possession of the property, no successful application for execution of its terms was possible. Until then " execution was suspended by no act or default of the decree " as in Shaik Kamar-ud-din Ahmad v. Jawahur Lal. (L. R. 32 I. A. 102.) In these circumstances art. 182 of Sch. I. of the Indian Limitation Act, 1908, does not apply, and the matter is governed by art. 181, under which the decree holder had three years from December, 1914, within which to apply. If any part of art. 182 applies it is clause 7, the date when the property came into the hands of Ekradeshvar being treated as a "certain date," but in that case the same result follows.
A statute of limitations cannot be applied so as entirely to exclude the exercise of a right given by a decree. [Reference was also made to Kalyanbhai Dipchand v. Ghanashamlal Jadunathji (( 1880) I.L.R. 5 B. 29.) ; Narayan Govind Manik v. Sono Sadashiv (( 1899) I.L.R. 24 B. 345.) and Order xxi., r. 99.]
Dube for the respondents. Execution of the decree is barred by art. 182. The present application cannot be treated as one to revive the former application, first because the former application was definitely dismissed, and secondly because the process invoked is different, the former application being against the widow. The decree became capable of execution in August, 1908. In substance it was a decree against a legal representative in respect of property of a deceased person see ss. 368 and 252 of the 1882 Code (corresponding respectively to Order xxii., r. 4, and s. 52 of the 1908 Code). Upon Ekradeshvar obtaining a decree for possession against the widow in August, 1908, the Court could have ordered under the decree of 1906 a sale of his right, title, and interest in the property Durbhunga Raj v. Ramput Singh . (( 1872) 14
