The provisions of paragraphs I, II, and III of the Third Schedule to the Civil Procedure Code, 1908, do not bar the execution of a decree against the person or other properties of the judgment-debtor when the Collector has not exercised his power under paragraph 2 to draw up a scheme for liquidation of money decrees against the judgment-debtor and has not made any provision for satisfaction of the decree in such a scheme.

Headnote:
LIMITATION - EXECUTION OF DECREE - CIVIL PROCEDURE CODE, 1908 - SECTION 48 - THIRD SCHEDULE, PARAGRAPHS I, II AND III - INTERPRETATION - EFFECT OF TRANSFER OF DECREE TO COLLECTOR FOR EXECUTION UNDER SECTION 68 - POWERS AND DUTIES OF COLLECTOR - BAR OF LIMITATION DURING PENDENCY OF EXECUTION PROCEEDINGS BEFORE COLLECTOR - APPLICABILITY OF SUB-PARAGRAPH 3 OF PARAGRAPH II OF THE THIRD SCHEDULE.
Fact of the Case:

A money decree was passed in favor of the appellants against the respondents in 1932. The respondents were granted installments for payment of the decretal amount, with the last installment due in 1942. Due to defaults in payment, the appellants filed several darkhasts, the last of which was filed in 1941, seeking attachment and sale of an agricultural land belonging to the respondents. The B.A.D.R. Act came into force, and the papers were transferred to the B.A.D.R. Court. The respondents were not held debtors within the meaning of the Act, and the papers were sent back to the Collector in 1953. The Collector made several attempts to sell the property, but no bids were received. The Collector returned the papers to the Civil Court in 1957, and the executing Court dismissed the darkhast as barred by time. The appellants filed a fresh darkhast in 1958, seeking recovery of the decretal amount by attachment and sale of the same land, a house, and other properties, as well as by arrest and detention of the respondents. The executing Court held that the darkhast was barred by time, and the District Court modified the order, allowing execution against the land but not against the person or other properties of the respondents.
Finding of the Court:

The High Court held that the appellants' fresh darkhast was not barred by time insofar as it sought execution by attachment and sale of the land, as the Collector had not exercised his power under paragraph 2 of the Third Schedule to draw up a scheme for liquidation of money decrees against the respondents. However, the darkhast was barred by time as regards execution against the person or other properties of the respondents, as the Collector had not made any provision for satisfaction of the appellants' decree in such a scheme.
Issues: 1. Whether the appellants' fresh darkhast was barred by time insofar as it sought execution by attachment and sale of the land. 2. Whether the darkhast was barred by time as regards execution against the person or other properties of the respondents.
Ratio Decidendi: 1. The Court interpreted the provisions of paragraphs I, II, and III of the Third Schedule to the Civil Procedure Code, 1908, and held that the Collector's powers under paragraph 2 to draw up a scheme for liquidation of money decrees against the judgment-debtor were not exercised in this case. Therefore, the Civil Court was not debarred from issuing process of execution against the respondents or any of their properties other than the land in execution of the appellants' decree. 2. Since the Collector had not made any provision for satisfaction of the appellants' decree in a scheme under paragraph 2, the appellants were not deprived of their remedy to execute the decree against the person or other properties of the respondents during the time that the question of satisfaction of their decree was pending before the Collector. Therefore, the period during which the Collector was exercising such power in connection with that decree would not be excluded while computing the period of limitation for their darkhast in respect of such decree.
Final Decision: The appeal was dismissed, with no order as to costs.

JUDGMENT - 1. A somewhat interesting question has been raised in this appeal which arises out of an application for execution of a money decree presented more than 12 years after the date of the decree. On 24th of October, 1932, a decree for Rs. 444-8-0 was passed against the respondents in favour of the appellants. The respondents were granted certain instalments for the purpose of paying up the decretal amount. The last of such instalments was to be due in 1942. It appears that due to the defaults of the respondents in payment of the instalments, the appellants had to file several darkhasts, the last of which was filed in 1941. By that darkhast the appellants prayed that an agricultural land bearing Survey No. 38, belonging to the respondents be attached and sold for the purpose of satisfying the balance of the decretal amount. The executing Court granted the prayer and sent the papers to the Collector for sale of the land. Some time after this was done, the B. A. D. R. Act came into force and by virtue of Section 19 of that Act, the papers which xvere with the Collector were transferred to the B. A. D. R. Court. In the B. A. D. R. Court, the respondents were not held debtors within the meaning of that Act and, therefore, on 18th September, 1953, the papers were sent back to the Collector. After the receipt of the papers, the Collector, it appears, made several attempts to sell the property by public auction and the final attempt in that behalf was made on 12th January, 1957. As no person had come forward to offer a bid for the property at any of these sales, the Collector returned the papers to the Civil Court with the necessary report. The executing Court considered the Collectors report, and disposed of the darkhast on 9th February, 1957. The appellants thereafter filed the present darkhast on 19th September, 1958 and claimed recovery of the decretal amount by attachment and sale not only of Survey No. 38 which was the subject-matter of the prior darkhast but also of a house bearing City. Survey No. 3661-B, and some pronote security and also by arrest and detention in civil prison of respondents 2 and 4. To this darkhast an objection was raised on behalf of the respondents in the Executing Court that it was barred by time since it was filed more than 12 years after the date of the decree. The executing Court held that by provisions of Section 48 of the Civil Procedure Code, the execution of the decree in question was barred since more than 12 years had elapsed from the date of the decree. While so holding, it appears, that Court did not properly consider the effect of the Civil Procedure Code (Amendment) Act, 1956, which, while deleting Sections 68 to 72 and the IIIrd Schedule from the Civil Procedure Code, provided that nothing in that Act would affect pending proceedings. The executing Court accordingly dismissed the darkhast as barred by time. Against that decision, the, appellants took an appeal to the District Court. The learned District Judge modified the order of the executing Court holding that the darkhast was not barred by time so far as the execution o£ the decree against Survey No. 38 was concerned but that it was so barred in so far as it was concerned with the execution of the decree against the person and other properties of the respondents. In the result, the appeal was partially allowed and the darkhast was ordered to proceed so far as the recovery of the decretal amount by attachment and sale of the land in Survey No. 38, was concerned. It is against this order that the appellants have filed the present second appeal in this Court.

2. In support of this appeal, it was urged by Mr. Vaidya, the learned Advocate for the appellants, that the Courts below had erred in refusing to allow to the appellants while deciding the question of limitation in respect of the present darkhast, the benefit of the provisions of Sub-para 3 of paragraph II of the Third Schedule of the Civil Procedure Code. Mr. Vaidya contended

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Judicial Analysis

1962 Supreme(Bom) 97

IN THE HIGH COURT OF BOMBAYShah, J.Appellants: Kanayalal Hinlal Agarwal and Anr.Vs.Respondent: Talabsha Maghbulsha Musalman and Ors.A.F.A.D. No. 1203 of 1960Decided On: 10.12.1962Counsels: For Appellant/Petitioner/Plaintiff: G.N. Vaidya, Adv.

Judicial Analysis

IN THE HIGH COURT OF BOMBAY
Shah, J.
Appellants: Kanayalal Hinlal Agarwal and Anr.
Vs.
Respondent: Talabsha Maghbulsha Musalman and Ors.
A.F.A.D. No. 1203 of 1960
Decided On: 10.12.1962
Counsels:
For Appellant/Petitioner/Plaintiff: G.N. Vaidya, Adv.