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1964 Supreme(Ori) 41
HIGH COURT OF ORISSA
S. Barman And R. K. Das, JJ.
BHOLANATH NAIK - Appellant
Versus
KRUPASINDHU NAIK - Respondent
Misc. Appeal 64 Of 1962
Decided On : April 14, 1964
B.Mohapatra, P.V.B.RAO, R.N.MISRA, Y.S.N.MURTY
The appointment of a receiver in a partition suit does not operate as a stay of execution or as an injunction restraining the parties from executing the decree, unless there is an express or implied restriction on the right of the parties to execute the decree.
Headnote:
LIMITATION ACT - SECTION 15 - APPOINTMENT OF RECEIVER - STAY OF EXECUTION - INTERPRETATION - LEGAL IMPEDIMENT TO EXECUTION - DECREE-HOLDER'S RIGHT TO APPLY FOR LEAVE TO EXECUTE - SCOPE OF SECTION 15 - STRICT CONSTRUCTION OF LIMITATION ACT - NO SUSPENSION OF LIMITATION.
Fact of the Case:
Decree-holders filed execution cases for recovery of possession of their respective allotments under a final decree in a partition suit. Judgment-debtors objected that the execution cases were barred by limitation under Article 182 of the Limitation Act, as not having been filed within three years from the dismissal of the appeal from the final decree. The issue was whether the appointment of a receiver in the partition suit operated as a stay of execution or as an injunction restraining the parties from executing the decree.
Finding of the Court:
The court held that the appointment of a receiver did not operate as a stay or injunction suspending limitation. The order of appointment of the receiver did not contain any express or implied restriction on the right of the parties to execute the decree. The decree-holders were not prevented from applying for leave of the Court to execute the decree. The provisions of Section 15 of the Limitation Act, which provides for exclusion of time during which the execution of a decree has been stayed by injunction or order, were not applicable in this case.
Issues: 1. Whether the appointment of a receiver in a partition suit operated as a stay of execution or as an injunction restraining the parties from executing the decree. 2. Whether the decree-holders were entitled to the benefit of exclusion of time under Section 15 of the Limitation Act.
Ratio Decidendi: 1. The scope of the provisions of Section 15 of the Limitation Act is confined only to an absolute stay granted by Courts. 2. The principle underlying the section is that if the execution of the decree was stayed, it would be an unnecessary burden on the decree-holder and an empty formality if he should be compelled to file execution application at the risk of his decree otherwise getting barred. 3. A decree, which has been stayed, cannot obviously be executed. 4. The reason cannot hold good if the decree-holder is not prevented from executing the decree. 5. If he has a right to execute the decree and has failed to exercise that right, it can only be at his own risk. 6. In the present case, the decree-holder's right to apply for leave of Court to execute the decree was not affected in any way by the appointment of a receiver.
Final Decision: The miscellaneous appeals were dismissed. Each party was directed to bear its own costs.
BARMAN, J.
( 1 ) THE point involved in these three miscellaneous appeals filed by decree-holders is limitation. These appeals arise out of certain execution cases filed by 3 decree-holders (plaintiff and legal representatives of defendant No. 3 and defendant No. 6) for recovery of possession of their respective allotments under a final decree made in a partition suit.
( 2 ) IN 1927 the plaintiff filed a partition suit O. S. No. 35 of 1927 in the Court of the Subordinate Judge Berhampur. On March 30, 1929, preliminary decree was passed in the partition suit, which ultimately went to the Privy Council. On April 16, 1936 a receiver was appointed by the Subordinate Judge under an order of the high Court dated March 16, 1936. A pleader of Aska was appointed as receiver. On aug. 23, 1947 final decree was passed in the partition suit. There was an appeal to the High Court F. A. No. 691 of 1949 which was dismissed by the High Court on november 10, 1955. The receiver was throughout in possession and continued to remain in possession until he was discharged on September 4, 1958.
( 3 ) ON September 2, 1961 the three decree-holders appellants herein filed execution cases E. P. Nos. 93, 94 and 96 of 1961 for recovery of possession of their respective allotments under the final decree. Some of the judgment-debtors filed objections MJC. 193, 194 and 196 of 1961, on that ground that the said execution cases were barred, by limitation under Article 182 of the Limitation Act, as not having been filed within three years from November 10, 1955 when the appeal from the final decree F. A. No. 69 of 1949 was dismissed by the High court. It was also objected that the execution cases are not maintainable because there was adjustment of shares outside Court.
( 4 ) THE issue of limitation was taken by the learned Subordinate Judge before going into the question of alleged adjustment. The decree-holders' contention in all these cases was that the property was in charge of the receiver under order of Court, and so there was legal impedment in applying for execution of the decree for possession; that the receiver appointed in the partition suit was not discharged until September 4, 1958 and therefore these execution proceedings filed on Sept. 2, 1961, that is to say, within three years from the date of discharge of the receiver, were within time. The judgment-debtors, who were objectors to the execution cases, on the other hand, submitted that the receiver appointed was not an official receiver in administration suit so that the properties could be deemed to have vested in him and so the running of limitation cannot be arrested because the properties were in charge of the receiver. On these respective contentions of the parties, the learned Subordinate Judge decided that mere continuance of the receiver after termination of the suit cannot be treated as an order of injunction so as to deprive the successful party from applying for execution of the decree and therefore all the execution proceedings were barred by time. Accordingly the said misc. cases (objections by the judgment-debtors) were allowed. On December 12, 1961, the decree-holders filed three applications M. J. C. Nos. 229-31 of 1961 for review of the said decision of the learned Subordinate Judge on the grounds mentioned therein. On April 6, 1962 the said review applications were dismissed on the finding that the grounds put forth were not sufficient to justify review of the order. On the same date (April 6, 1962) in view of the orders dismissing M. J. C. Nos. 229-31 of 1961 the said execution cases E. P. Nos. 93, 94 and 96 of 1961 were dismissed as not maintainable. Hence these miscellaneous appeals filed by the decree-holders on July 5, 1962.
( 5 ) A preliminary point was taken, on behalf of the judgment-debtors respondents herein that these miscellaneous appeals, all filed on July 5, 1962, are not maintainable as barred by limitation. The judgment-debtors-respondents' point is this: Thes
