I.N. Modi, J.@mdashThis is a judgment-debtor''s second appeal in an execution matter.
2. The material facts may be briefly stated as follows. The respondent decree-holder obtained a money decree against the judgment-debtor from the Court of the Judicial Superintendent Phalodi on the 28th November, 1939. This decree was carried in appeal to the District Judge No. 3 Jodhpur which was dismissed on the 16th April, 1940. The decree-holder applied for execution of this decree for the first time on the 2nd December, 1940.
This application is still pending. On the 26th July, 1952, the application out of which the present appeal arises was made for the attachment and sale of the judgment-debtor''s right, title and interest in a house and Nohra situate in Amrani-pura in the town of Phalodi. The judgment-debtor objected to this application on the ground of limitation u/s 48 of the Code of Civil Procedure.
This objection was dismissed by the executing Court by its order dated the 20th October, 1956, as learned counsel for the judgment-debtor stated before the Court that he did not want to press it. The judgment-debtor preferred an appeal against this order before the learned District Judge, Jodh-pur who also dismissed it. The main finding of the learned District Judge was that the decree-holder''s application dated the 26th July, 1952, which according to the learned Judge was, to all intents and purposes, a fresh application was saved from limitation by a notification of the former Jodhpur State, dated the 23rd August, 1939, published in the Jodhpur Government Gazette dated the 26th August, 1939, read with another notification dated the 7th September, 1940, published in the Jodhpur Government Gazette dated the 7th September 1940, by which the period between the 23rd August, 1939, and the 15th September, 1940, has to be excluded from computation while applying section 48 of the CPC to the present case. Aggrieved by this Order of the learned District Judge, the judgment-debtor has come up in appeal to this Court.
3. The question which falls for determination in the present appeal is whether the objection as to limitation raised by the judgment-debtor to the decree-holder''s application dated the 26th July, 1952, is well founded. In deciding this matter, I shall assume for the purposes of the present appeal that the decree-holder''s application dated the 26th July, 1952, was a fresh application and not a mere continuation of the execution application dated the 2nd December 1940, which has still not been finally disposed of and is pending in the executing court.
4. Now the first question which seems to me to arise in this appeal as it did in the appeal before the learned District Judge was whether the judg-ment-debtor is entitled to raise this question of limitation notwithstanding the fact that his counsel had definitely stated before the executing court that he did not wish to press his objection in that regard in the executing court. The learned District Judge apparently formed the opinion that the Point was one of pure law, and, therefore, even though counsel for the judgment-debtor had not pressed it before the executing court, he should not be precluded from raising it in appeal.
Now I am prepared to accept that where a plea of limitation involves only a question of law, it can be raised at any stage of the proceedings and it would certainly be open to the appellate court in such cases to allow the appellant to argue the point; but where the plea of limitation raises a question of mixed law and fact and the same has been abandoned by a party or his counsel, he cannot be allowed to raise such a plea subsequently having abandoned it and assuming at the best that the court has a discretion to allow such a Point to be raised; it should refuse to do so particularly where it involves the taking of evidence.
5. The question, therefore, which next arises in this connection is whether the plea of limitation in the present case could be said to be a plea of pure law. Now as to this, I am not at all satisfied, I say so because the decree-holder in his reply to the judgment-debtor''s objection had definitely stated that although he had obtained his decree against the judgment-debtor from the appellate court on the 16th April, 1940, and had filed his application for execution on the 2nd December 1940, and he had made numerous efforts to have his decree executed among other steps by applying for the detention of the judgment-debtor in the civil jail, the latter had successfully evaded the service of a warrant on him from time to time and that thereby he had been guilty of fraud apparently within the meaning of Clause (a) of Section 48(2) G. P. C.
Now there is authority for holding that the term ''fraud'' in this section should be interpreted in a liberal sense and that any improper means resort-ed to by a judgment-debtor to prevent execution of a decree would amount to such fraud and that this expression is wide enough to include circumven-tion also : See Tulsi Ram v. E. D. Sassoon and Co. Ltd. AIR 1936 Lah 843 and Walchand v. Yeshwant AIR 1949 Bom 379. Having regard to the particulars of the. various efforts made by the decree-holder in the present case as to how he wanted to execute his decree against the judgment-debtor and how the latter foiled all his attempts during a long period of about twelve years, it was a serious question of fact whether the case raised by the decree-holder in reply to the objection of limitation put forward by the judgment-debtor was well-founded or not.
Viewed in this perspective, the objection raised by the judgment-debtor On the strength of Section 48 C. P. C. was very much a question of mixed law and fact and the question which then arises as to whether the court of appeal below or for that matter this Court should allow such an objection to be raised having regard to all the circumstances can in my opinion in the proper and legitimate exercise of judicial discretion be only answered against the judgment-debtor, the more so as the latter had abandoned the point of limitation in the court of first instance. This, in my considered opinion, should be sufficient to dispose of the Present appeal.
6. Now suppose I were to fall in line with the view of the learned District Judge and hold with him that the appellant should be allowed to argue the question of limitation, the point which then falls for consideration is whether Section 15 of the Limitation Act controls Section 48 of the Code of Civil Procedure. But before I deal with this point, let me briefly dispose of the contention which was raised before me that the notifications of the Jodhpur State which are referred to above did not suspend execution in cases of this type at all. This contention does not appear to have been raised before the learned District Judge and has been raised before me for the first time. It is contended in the first place that the benefit of the notifications was meant to be given to the agriculturists only and not to others. In order to dispose of this contention, it is necessary to cite here both the notifications" :
"OFFICE ORDER
Dated Jodhpur the 23rd August 1939,
Special Famine measures in the Judicial Department.
No. 12378 : In view of the prevailing famine the following directions are issued for the guidance of all the courts in Marwar which will remain in force from the 23rd August, 1939, until further orders :
1. All the civil litigation in which one or both of the parties depend for their livelihood on cattle breeding or agriculture will be altogether suspended.
2. Execution work of all kinds (except of decrees for maintenance, other similar allowances and injunctions) will be suspended.
3. No sales will be made in the Insolvency Court.
4. Adjournments should be freely granted in civil cases by all the courts wherever it appears that by reason of the famine, it is difficult for either party to procure evidence or a non-adjournment would in any other way involve hardship on either party.
5. The period of the famine (termination of which will be notified later) will not be reckoned towards the limitation of any suit or appeal by agriculturists or cattle breeders and towards applications for execution the limitation for which would expire during this period.
6. As regards Thikana Courts no special rules are laid down, but the above lines whenever equitably necessary and the above rule of limitation should be applied.
Kanwar Sain,
Minister for Justice and
Reforms,
Government of Jodhpur."
"GOVERNMENT OF JODHPUR.
CIRCULAR
Dated Jodhpur the 7th September, 1940. No. 1562/8 : In view of the fact that there has been widespread rainfall all over Marwar and normal conditions are restored the Famine Relief operations will be deemed to have been finllay closed with effect from 15th September, 1940. All circulars issued regarding civil litigation, suspension of execution of decrees against agriculturists and sales through Insolvency Courts will be deemed to have been cancelled with effect from 15th September.
Similarly all concessions allowed in grazing fees, cattle pounds, customs duty on cattle rents on fodder crops etc., in connection with Famine Relief will also cease to operate from that date.
D. M. FIELD,
Lt. Col.,
Chief Minister,
Government of Jodhpur."
7. Now the contention referred to above is in my opinion baseless for Clause (2) of the notification of 1939 is general and contains no words of limitation and applies to agriculturists as well as to non-agriculturists. Learned counsel submits that the notification of 1940 makes no reference to non-agriculturists. But this agrument is fallacious because the second notification cannot cut anything out of the full content of the first.
All that may be said is that the language of the second notification is not as precise as it should have been; but that is an entirely different matter. It was next contended in this connection that even the first notification applies to only those cases where the period of limitation should have expired within the period delimited by the two notifications read together, and reliance is placed in support of this contention on the fifth Clause of the first notification. I regret, I am unable to accede to this submission. For this clause does not over-ride the other clauses of the notification.
It may be accepted that this particular clause would have no application to the present case; but the notification contains a number of other clauses and due meaning has to be assigned to each one of them according to well-established canons of interpretation. Thus interpreting both notifications as a whole and in harmony with each other, I have no hesitation in arriving at the conclusion that the execution of the decree in this case stood suspended from the date of the first notification i.e., 23rd August. 1939, to 15th September, 1940, being the date of cessation of all concessions specified by the second notification. I hold accordingly.
8. This brings me to the question of the true impact of Section 15 of the Limitation Act on Section 48 of the Code of Civil Procedure. Section 15 of the Limitation Act reads as under :
"15(1) In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn shall be excluded.
2. In computing the period of limitation prescribed for any suit of which the notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded."
Now it is conceded before me that there is no decision of our Court governing the point whether the period of 12 years'' limitation prescribed by Section 48, C. P. C. is controlled by section 15 of the Limitation Act. Untrammelled therefore by the force of any authority of our Court or by the deci-sions of other High Courts, I feel no hesitation in saying that the language of Section 15 is quite wide and extensive and should be held to control the twelve years'' period laid down by Section 48 of the Code of Civil Procedure.
The only question which really arises for consideration in this connection is whether the aforesaid period of 12 years can be said to be a period prescribed for limitation for making an application for the execution of a decree. The proper answer to this question must be in the affirmative. Section 48 undoubtedly lays down an overall limit for the filing of an execution application. This is nothing if not a rule of limitation. Again, it cannot be gainsaid that this is a period "prescribed" for the purpose of limitation.
The expression "prescribed" does not and cannot necessarily mean something prescribed in the relevant schedule of the Limitation Act itself. On the other hand it clearly seems to me that where any law lays down or fixes a period of time within which a person must initiate action if he desires to assert his right or failing to do that his right becomes unenforceable in a court of law, then such a law does prescribe a period of limitation.
I have, therefore, no hesitation in holding that Section 48 is a provision which prescribes a Period of limitation and in fact with all respect it might very well have been incorporated in the Limitation Act itself rather than in the Code of Civil Procedure. It only remains for me to point out that both these laws are general & in pari materia & the provisions of the one do not over-ride those of the other, and, therefore, both must be read in harmony with and as supplemental to each other. In this state of affairs, I have felt strongly persuaded to hold the view that Section 15 controls the period of limitation prescribed u/s 48 of the Code of Civil Procedure.
9. Now turning to decisions of the various High Courts in our country, there does appear to be a divergence of judicial opinion. The Madras High Court in
On the other hand, a full bench of the Allahabad High Court in Durga Pal Singh v. Pancham Singh AIR 1939 AH 403 and the Bombay High Court in
10. The resultant position, therefore, boils down to this. The execution of decrees was suspended in the former State of Jodhpur from which part of Rajasthan this case comes from 23rd August 1939, to the 15th September, 1940, that is for a period of about 12 months. The decision of the appellate court was made on the 16th April, 1940, and the application for execution out of which this entire controversy has arisen was made by the decree-holder on the 26th July, 1952. If the period during which the execution of decrees remained so suspended is allowed to the decree-holder u/s 15 of the Limitation Act, the application was certainly within time. I hold accordingly.
11. In the result this appeal fails and I hereby dismiss it with costs.
