Back
1937 Supreme(Cal) 379
CALCUTTA HIGH COURT
S.K. Ghose, J., Patterson, J.
Kartic Chandra Mukherjee - Appellant
Versus
Bata Krishna Roy & Ors. - Respondent
Decided On : 15-03-1937
The main legal point established in the judgment is the interpretation and application of Section 48(1)(b) of the Civil Procedure Code in the context of a subsequent order and the substitution of a decree by agreement between the parties.
Headnote:
Limitation - Execution proceeding - Order of High Court - Adjustment of decree - Subsequent order - Jurisdiction of Court - Security for compromise - Limitation under Section 48, Civil P.C. - Benefit of Section 7, Limitation Act
Fact of the Case:
The case involves an appeal by Kartic Chandra Mukherji, a judgment-debtor, raising a question of limitation in an execution proceeding. The dispute arises from a suit for accounts, a subsequent decree modification, and a compromise petition filed in 1928.
Finding of the Court:
The Court found that the order of the High Court in 1928, included in the application for execution, was in the nature of a subsequent order made by a competent Court under Section 48(1)(b) of the Civil Procedure Code. The Court held that the parties had, by their agreement, substituted the decree as modified by the petition of compromise for the original decree, and thus the application for execution was not time-barred.
Issues: The issues included the determination of whether the order of the High Court in 1928 could be considered a subsequent order under Section 48(1)(b) of the Civil Procedure Code, and whether the decree-holders were entitled to the benefit of Section 7 of the Limitation Act due to one of them being a minor until sometime in 1934.
Ratio Decidendi: The Court held that the order of the High Court in 1928 was a subsequent order made by a competent Court under Section 48(1)(b) of the Civil Procedure Code, and that the decree-holders were not entitled to the benefit of Section 7 of the Limitation Act.
Final Decision: The appeal was dismissed with costs, and the application for execution was deemed not time-barred.
JUDGMENT
S.K. Ghose, J. - This is an appeal by one Kartic Chandra Mukherji a judgment-debtor in an execution proceeding and it raises a question of limitation. There was a suit for accounts being Title Suit No. 198 of 1911 in the Court of the Subordinate Judge of Purulia and it was decreed on 16th September 1916 against one Mukund Lal Laik. This decree was modified by the High Court at Patna on 6th December 1920. In 1921 the judgment-debtor died leaving a widow Jugol Kishori. There were two executions at Dhanbad. A third execution case was transferred to Asansole and executed there on 23rd March 1925. Upon, an objection u/s 47, Civil P.C., there-was a Miscellaneous Case No. 49 of 1925 and it was dismissed by the Asansole Court on 7th August 1925. Then there was an appeal to this Court being Miscellaneous Appeal No. 361 of 1925 and it was dismissed by Page and Graham JJ. on 25th July 1927 [see Sm. Jugal Kishore Debi Vs. Baidya Nath Roy and Another, AIR 1927 Cal 952 . Thereafter an application for leave to appeal to His Majesty in Council was filed. While it was pending before a Bench presided over by the Chief Justice and C. C. Ghose J., a compromise was arrived at between the judgment-debtor Jugol Kishori on the one hand and the decree holders Nos. l and 2 on the other, the decree-holder No. 3 being respondent 3 not appearing. The compromise petition was filed on 5th December 1927. It will be relevant to mention the following terms of the compromise. The decretal amount was split up and two-third was taken to represent the share of respondents 1 and 2 (who are the present respondents in this appeal) and one. third was taken to represent the share of respondent 3. The arrangement was that the appellant Jugol Kishori would pay the amount in certain instalments. Clause 5 of the compromise runs as follows:
That if default is made in respect of two consecutive instalments payable to respondents 1 and 2 or respondent 3, execution will proceed for the whole of the instalments due to respondents 1 and 2 or respondent 3 as the case may be.
2. It was further provided that the appeal to His Majesty in Council would not be proceeded with further, that the Execution Case No. 58 of 1925 pending in the Asansole Court would stand dismissed and that certain properties described in Schedule A and situated in Behala in the District of 24-Parganas had been accepted by respondents 1 and 2 as security. It was also stated that the compromise was beneficial to the minor respondent 1 and lastly in Clause 12 it was stated that
the terms had been explained to and approved of by the appellant and the said terras had been settled in behalf of the appellant by her grandson (Kartic Chandra) Mukherjee who had authority from her to compromise the case.
3. It may be added that this Kartic Chandra Mukherjee is now the appellant in this appeal. Upon these terms the prayer in the compromise petition was, first, that the Privy Council appeal might be disposed of in terms of the petition and secondly that leave be given to record the said compromise in behalf of respondent 2 who was the guardian of the minor respondent 1. In accordance with these prayers, an order was made and drawn up in the form of a decree on 20th February 1928. The material question in this appeal will be whether time should run against the decree-holders as from 20th February 1928 or as from 6th December 1920. To proceed with the history of this litigation: On 1st August 1928 the judgment-debtor Jugal Kishori executed a deed of gift in favour of the present appellant and two others. Jugal Kishori died and upon a certificate of non-satisfaction being taken in the Purulia Court, execution was transferred to Alipore Court on 28th August 1930, the execution case there being numbered as execution case No. 240 of 1930. The execution petition Ex. C which is printed at pp. 6 and 7, Part 2 of the paper, book gives the date and number of suit as "Title Suit No. 198 of 1911 as adjusted by P.C. A. No. 38 of 19
