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1932 Supreme(SC) 60
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD TOMLIN, LORD THANKERTON, AND SIR LANCELOT SANDERSON.
RAJA KIRTYANAND SINGH - Appellant
Versus
RAJA PRITHI CHAND LAL CHAUDHURY - Respondents
On Appeal from the High Court at Patna.
Decided On : November 22, 1932.
Solicitors for appellants :Barrow, Rogers & Nevill. Solicitors for respondent: H. S. L. Polak & Co.
To extend the limitation for executing a decree under Section 48 CPC, a subsequent order must be issued in the original suit directing payment by the debtor or surety. A stay under Section 15 of the Limitation Act requires a formal stay of actual execution proceedings.
Headnote:(A) Code of Civil Procedure, 1908 - Section 48 - Execution of decree - Limitation period - Subsequent order directing payment of money - For an order to extend the limitation period under Section 48(1)(b), the subsequent order must be made in the suit in which the decree was passed and must direct payment by the debtor or the surety in respect of the judgment debt. An order made in a separate administration suit directing a receiver to make payments does not satisfy these conditions.
(B) Indian Limitation Act, 1908 - Section 15 - Exclusion of time - Stay of execution - An order directing a party to wait for payment in a separate suit, made when no execution application is pending in the main suit, does not constitute a stay of execution by injunction or order for the purpose of excluding time under Section 15.
Facts of the case:
A decree for rent was obtained by consent, with a one-year suspension of execution. The respondent acted as a surety. Over several years, multiple applications for execution were filed against the judgment debtors and subsequently struck off. A final application for execution was filed against the surety after twelve years from the date of the decree. The applicants sought to extend the limitation period based on an order for payment made by a receiver in a separate administration suit and a subsequent order directing them to wait for payment.
Findings of Court:
The court found that the order directing the receiver to pay was not an order in the original suit nor was it an order against the debtor or surety. Furthermore, the order to wait for payment did not constitute a legal stay of execution as no execution proceedings were pending at the time the order was made.
Issues: Whether the application to execute the decree against the surety was barred by limitation under Section 48 of the Code of Civil Procedure, and whether the period of limitation was extended by a subsequent order for payment or a stay of execution.
Ratio Decidendi: Under Section 48 of the Code of Civil Procedure, a "subsequent order" that extends the limitation period must be an order in the same suit directing payment by the debtor or surety. Similarly, for time to be excluded under Section 15 of the Indian Limitation Act, there must be a genuine stay of execution; an order in a separate suit to wait for payment, especially when no execution application is pending, does not qualify as a stay.
Result: Appeal dismissed.
Legal Category Hierarchy
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practice and procedure
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execution of decrees
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limitation
- section 48 code of civil procedure
- section 15 limitation act
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limitation
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execution of decrees
Judgement
Appeal (No. 126 of 1930) from a decree of the High Court (July 10, 1929) affirming an order of the Subordinate Judge of Monghyr.
The question arising upon the appeal was whether an application by the present appellants on July 13, 1927, to execute a decree dated April 1, 1914, was barred by limitation. The respondent against whom it was sought to execute the decree was a surety for payment of the rent for which the decree was recovered ; he assented to the decree, which was a compromise of the claim in the suit. The facts of
Law Rep. 60 Ind. App. 43 ( 1932- 1933) Raja Kirtyanand Singh V. Raja Prithi C hand Lal C haudhury 207
the case and the material enactments appear from the judgment of the Judicial Committee.
The High Court (Kulwant Sahay and Macpherson JJ.) held, affirming the order appealed from, that the application was barred under s. 48 of the Code of Civil Procedure, 1908.
1932. Nov. 21, 22. Sir Dawson Millar K.C. and Hyam for the appellants.
Dunne K.C. and Wallach for the respondent.
The argument for the appellants is stated in the judgment; the respondents counsel were not called upon.
Nov. 22. The judgment of their Lordships was delivered by
LORD TOMLIN. This is an appeal from a decree of the High Court at Patna, which affirmed an order dated September 19, 1927, of the Court of the Subordinate Judge of Monghyr.
The question arises in this way. On April 1, 1914, a decree was made in certain rent suits by which by consent the present appellants, or their predecessors, obtained a decree for Rs. 1,84,521, besides further interest thereon at 8 annas per cent, per month. It was provided by the decree that the plaintiff should not take out execution of the decree until March, 1915, so that there was a years suspension.
The present respondent was a consenting party to the decree in his capacity as surety. The result of that apparently is that the decree can, under s. 145 of the Code of Civil Procedure, be executed against him as though he were a party to the suit and the principal debtor.
Having obtained that decree, the plaintiffs made a number of applications for execution. The first was made on June 23, 1915, and apparently was struck off on June 24, 1916, without there being any satisfaction of the decree. A second application was made on September 10, 1918, and that again was struck off on March 25, 1919, without any satisfaction of the decree. A third application was made on April 10, 1919 but in the meantime the defendants in the rent suits who apparently were, or claimed to be, interested in the Srinagar Raj, as one of their principal assets, had a suit commenced against them by a lady of the family, the nature of which does not very clearly appear, but which was evidently a suit for the protection of the property in the interests of the family.
In the course of that suit, apparently in January, 1920, a receiver was appointed, and on January 31 an application was made in that suit by the appellants, in the absence of the judgment debtors and of the surety, which resulted in an order in that suit for payment of Rs. 9000 half-yearly by the receiver in that suit to the appellants in respect of their judgment debt in the rent suits. In fact, the receiver paid nothing.
On February 24, 1920, the third application for execution in the rent suits which was up till that moment pending was struck out. About this time it appears that at the instance of the receiver in the Raj suit the proceedings in the rent suits were transferred from Monghyr, where they had theretofore been conducted, to Bhagalpur where the Raj suit was proceeding ; and presently an application was made by the appellants in the Raj suit asking in effect that either the receiver might pay their debt, or that they might levy execution on the property of the Raj in the hands of the receiver.
That application seems to have come before the Subordinate Judge on many occasions, and on each occasion he saw fit to postpone decision, and ultimately, accordi
