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P L D 1965 (W. P.) Lahore 628

 

Before Muhammad Akram, J

 

CENTRAL EXCHANGE BANK LTD.‑Appellant

 

Versus

 

Ch. DILAWAR ALI KHAN AND OTHERS‑Respondents

 

Civil Original No, 118 of 1963, decided on 26th May 1965.

Ajdhia Parshad Rain Parshad v. Sham Sunder and others A I R 1947 Lah. 13 distinguished.

 

Mian Fazl‑i‑Mahmood and Muhammad Jamil Attorney for Appellant.

 

Sh. Riaz Ahmad and Mian Muhammad Aslam for Respondents.

 

Date of hearing : 1st March 1965.

 

 

JUDGMENT

 

This is an appeal against the, order of the Senior Civil Judge, Lahore dated 24th of March 1962 by which he dismissed application for execution of the decree by the Central Exchange Bank Limited (in liquidation) against the respondents time‑barred.

 

2. The facts leading to this appeal are these: On 1st November 1951 the Central Exchange Bank Limited filed a for recovery of Rs. 12,002‑8‑0 alongwith future interest on the basis of a mortgage against Ch. Dilawar Ali Khan, Ch. Muhammad Anwar and Ch. Karam Rabbani. The suit was compromised in the Court of Senior Civil Judge, Lahore between the parties on 8th November 1953 and in terms of the compromise a preliminary decree for recovery of Rs. 12,527‑8‑0 was passed in favour of the appellant against the respondents with costs. This decree directed the defendants to pay the sum due to the decree‑holder on or before 8th April 1954 and further declared that in case of default the plaintiff might apply to the Court for a final decree for sale of the mortgaged property. The respondents failed to pay the decretal amount in time and on the application of the decree‑holder the Senior Civil Judge, Lahore on 19th of January 1957 ordered that the preliminary decree should be made ‘final. As it happened, the final decree‑sheet was not actually drawn up by the Court and the bank had to apply for it to the Court on 19th of May 1958. On this the Court repeatedly sent for the file from the record room but it was not received until the 15th of May 1961 when the final decree was actually drawn up and signed by the Senior Civil Judge, Lahore.

 

3. It should be mentioned that while the suit was still pending in the trial Court, the Central Exchange Bank Limited was wound up under the order passed by the High Court on 29th of May 1952 and Manager of the State Bank of Pakistan, Lahore was appointed as its Official Liquidator and be continued with the suit as required by law.

 

4. On 13th of June 1961 the bank formally applied for the execution of the decree against the three ‘judgment‑debtors by sale of the mortgaged property. This was resisted by Ch. Karam Rabbani, judgment‑debtor No. 3 who filed objections against it under section 47 of the Code of Civil Procedure. According to him the Court had passed a final decree capable of execution against the respondents on the basis of the compromise on 8th October 1953 but no application for its execution was made in time and, therefore, the application for execution of the decree was barred under Article 182 of the Limitation Act. The decree‑holder controverted these allegations and contended that the Court had passed the preliminary decree on 8th October 1953 and the final decree could not be drawn up until 15th May 1961although the order for confirmation of the decree was actually passed by the Court on 19th January 1957. It was maintained that in these peculiar circumstances the application of the decree -holder for execution was within time. The pleading of the parties gave rise to the following issues :‑

 

(1) Was the decree dated 8th of March 1953 (should be 8th of October 1953), final and executable? O. P. J. D.

 

(2) if the reply is in the negative, is the decree dated 15th of May 1961, not in conformity with the order dated 19th of January 1957, as not having been drawn up on the date of the order and thus time‑barred?

 

5. The Senior Civil Judge, Lahore accepted these objections of the judgment‑debtor on 24th of March 1962. On issue No. 1 the Court found that in accordance with the agreement between the parties the Court had passed the preliminary decree on 8th‑ October 1953 which was not executable. It was subject to confirmation after the defendants had failed to pay the amount within the stipulated period of six months. As regards issue No. 2 the Court found that the preliminary decree was ordered to be made final on 19th of January 1957 under the order of the Court and in view of the provisions of rule 7 of Order XX of the Code of Civil Procedure, the date of the final decree must be reckoned from that date for the purposes of the execution of the decree and that the application of the decree‑holder for the execution of the decree was barred by time under Article 182 of the Limitation Act.

 

6. Dissatisfied with this decision, the decree‑holder preferred an appeal on 18th of May 1962 in the Court of the Additional District Judge, Lahore where it remained pending for some time. Subsequently the appeal had to be transferred to this ‘Court under its order as required by section 62 of the Banking Companies Ordinance (No. LVII of 1962) (hereinafter referred to as the Ordinance). Some‑how, on receipt in this Court the appeal was registered here as Civil Original No. 118 of 1963.

 

7. In this Court it transpired that Ch. Dilawar Ali, one of the judgment‑debtors had died before the appeal on 25th January 1962. Afterwards on 24th June 1963 the bank applied to this Court for bringing the navies of his legal representatives on the record. To this the objection of the respondents is that this appeal against the dead man, is not properly constituted, it has abated as a whole and should be dismissed altogether. The learned counsel for the appellant has repelled this contention. He has further argued that in view of the special provisions of section 73 of the Ordinance, the application of the bank for the execution of the decree was not barred by time and the order under appeal is liable to be set aside.

 

8. This section contains special provisions for computing the period of limitation in cases by banking companies which are being wound up or in respect of which a petition for winding up has been presented. The relevant provisions of subsections (1) and (3) of section 73.of this Ordinance are as under :‑

 

“73. (1) Notwithstanding anything to the contrary contained in the Limitation Act, 1908 (1X of 1908) or any other law for the time being in force, in computing the period of limitation, prescribed for a suit or application by a Banking Company which is being wound up, the period commencing from the date of the presentation of the petition for the winding up of the Banking Company shall be execluded.”

 

(2) . . . . . . . . . .

 

(3) The provisions of this section, in so far as they related to Banking Companies being wound up, shall also apply to a Banking Company in respect of which a petition for winding up has been presented before the commencement of this Ordinance.”

 

9. The Ordinance came into force on 7th June 1962. Its special provisions contained in Part IV including those in section 73 above have an over‑riding effect and are to apply notwithstanding anything inconsistent therewith contained in the law of limitation and any other law. It is not denied before me that the Central Exchange Bank Limited is a Banking Company within the meaning of the Ordinance. The order for the winding up of the plaintiff‑company was passed by this Court as far back as 29th of May 1952 and the suit which led to the decree under execution was instituted before that on 1st of November 1951. The preliminary decree in the suit was passed on 8th of October 1953 on the basis of a compromise between the parties, it was confirmed on 19th January 1957 when the order for the final decree was made. But the decree was actually drawn up by the Court much later on 15th of May of 1961. The objection raised by the judgment‑debtor under section 47 of the Code of Civil, Procedure against the execution of the decree on the ground of limitation was upheld by the executing Court on 24th of March 1962 and this appeal against that order was preferred in the Court of the District Judge on 17th of May 1962, before the promulgation of the Ordinance. It has been strenuously argued before me for the appellant that‑ despite these facts the special provisions of section 73 of the Ordinance will be applicable to the case and the period of limitation prescribed for the execution of the decree should be computed as laid down in that section.

 

10. It was laid down in The King v. Chandra Dharma ((1905) 2 K B 335) and it appears to me to be well‑settled that in the absence of anything to the contrary, a law ‘of limitation, either extending or abridging the time during which legal proceedings are to be taken introduces a change in the procedure only and is retrospective. It regulates the proceedings for the enforcement of all causes of action whether accrued before or after it came into force. It. does not create new disabilities or obligations or imposes new duties in respect of transactions which were complete at the time when the Act came into force. But the position would be entirely different if the time under the old Act had expired before the new Act came into operation. In Sachindra Mat Roy, v. Maharaj Bahadur Singh (AIR 1922 P C 187) it was held that a statute extending the period of limitation will not be construed retrospectively so as to destroy the title acquired by prescription or to revive and render effective a decree barred under the existing laws. Similarly, in Hathukunialli Ramayra andothers v. Uppalapapi Lakashmayya (AIR 1942 PC 54) it is laid down that ordinarily, a suit would be governed by the law of limitation in force when the suit was instituted; but if the defendants are able to show that the right of action had become barred under the old Act, then the title that they had acquired cannot be defeated ‘by subsequent change in the law of limita tion. In another Privy Council case in Mst. Allah Rakhi v. Shah Muhammad Ahdur Rahim and others (AIR 1934 PC 77) it was observed that the Limitation (Amendment) Act of 1929 came into force on 1st January 1929; the suit, which was the subject of the appeal before the Privy’ Council, was brought on 29th of January 1926 and the question whether it was then barred by limitation must depend on the law of limitation which was applicable to the suit at that time and the provisions of the amending Act were, therefore, not applicable.

 

11. The special provisions of section 73 of the Ordinance have a retrospective application in a qualified sense only. That section is applicable to a Banking Company which is being wound up or in respect of which a petition for winding up has been presented before the commencement of the Ordinance. To me appears that the new provisions for the computation of the period of limitation introduced in section 73, will be applicable to the cases in which the period of limitation prescribed under the earlier law had not run out on the date of the Ordinance. In the of light of the discussion in the proceeding paragraph of this judgment, the provisions of section 73 of the Ordinance cannot be invoked so as to resuscitate and revitalise a cause of action which had met its natural death by lapse of time and was barred under the law of limitation prevailing before the introduction of the Ordinance, on 7th June 1962. It is laid down in the Maxwell on “Interpretation of Statutes” (page 214‑10th Edition) that “a statute is not to be construed to have a greater retrospective operation than its language renders necessary. Even in construing section which is to a certain extent retrospective, ought to be borne in mind as applicable whenever the line is reached at which the words of the section cease to be plain. For it is to be observed that the retrospective effect of a statute may be partial in operation.” Section 73 does not either expressly or by necessary intendment, take away the effect of any order, decree or judgment already passed by a Court of law before the promulgation of the Ordinance. Therefore that section can have no bearing on the validity of the order under appeal which was passed by the learned Senior Civil Judge on 24th March 1962, before the Ordinance came into force.

 

12: It is not without interest to note that in India almost identical provisions of .law were promulgated in section 45‑0 of their Banking Companies Ordinance (IV of 1952) and in Suburban Bank Limited in Liquidation v. Nistaran Chakravarti (A I R 1955 Cal. 172) and Punjab Commerce Bank Limited v. Brij Lal Mahandi Ratta (A I R 1955 Pb. 45) it was held that despite the subsequent promulgation of that sepecial law in the shape of section 45‑0, a suit would be governed by the law ‘in force at the time of its institution and where once a right to sue was barred under an earlier’ Act, prescribing limitation for enforcing the right, the new change of the law cannot revive that right after it became barred by time, unless the later Act is retrospective in its effect. The Amending Ordinance of 1952 was not applied retrospectively to the suit which was already barred by time under the pre‑existing provisions of the Limitation Act. The validity of that order under appeal has, therefore, to be judged in the light of the law prevailing ‘before the Ordinance.

 

13. This case is governed by the provisions of Article 182 of the Limitation Act (IX of 1908) under which the period of three years prescribed for an application for the execution of a decree is to be reckoned from “the date of the decree”. The learned counsel for the appellant has argued before me that in the instant case for computing .the period of limitation the date of the decree should be taken as the 15th of May 1961, when the decree was actually drawn up. Although the judgment confirming the preliminary decree was passed on 19th November 1957, the decree‑sheet was not formally drawn up and signed by the learned Senior Civil Judge until 15th May 1961. It actually bears this date of its preparation. The learned counsel has strongly relied on Anant Ram v. Basdeo Sahai and others (A I R 1957 All. 114) in which the term “date of the decree” has been interpreted to mean the date inserted in the decree‑sheet. On the other hand, the counsel for the judgment‑debtors has strenuously argued that, as held by the lower Court, “the date of the decree” must synchronise with the date of the judgment, and the period of limitation for execution of the decree must be reckoned from 19th of January 1957 when the final decree and the judgment was actually passed and not from the 15th of May 1961.

 

14. A decree may be preliminary or final. It may be partly preliminary and partly final. Section 2 (2) of the Code of Civil Procedure defines a decree:

 

‘Decree’ means the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either’ preliminary or final . . . . . . . . .

 

Explanation.–‑A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.”

 

“Judgment” has been defined in section 2(9) of the Code to mean “the statement given by the Judge of the grounds of a decree or order”. Section 33 provides that the Court, after the case has been heard, shall pronounce judgment and oft such judg ment a decree shall follow Rule (1) of Order XX of the Court lays down that the Court, after the case has been heard, shall pronounce judgment in open Court either at once car as soon thereafter as may be practicable on some future date. Rule (6) of this Order further lays down that the decree shall agree with the judgment and Rule (7) goes on to say:

 

“7. The decree shall bear date the day on which the judgment was pronounced, and, when the Judge his satiated himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree.”

 

All these provisions taken together clearly mean that the decree takes its birth with the judgment and emerges with it. The decree, which is the formal expression of the adjudication which so far as regards the Court passing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, is passed simultaneously and automatically with the announcement of the judgment and in law the date of the decree synchronises with the date of the judgment. This is irrespective of the fact that the formal and ministerial acts of the drawing up of the decree‑sheet and signing it may have to be postponed to some later date. In East and West Steantshisp Company v. The Queens Land Insurance Company (P L D 1960 Kar. 840), a Full Bench of this Court repelled that argument that the decree does not come into existence until it is signed. It was held that a decree in its essence is not a thing separable from the judgment, although a decree‑sheet as such, which has to follow the judgment and is to be prepared in pursuit of it, may be so. A decree in a case in the legal sense, and perhaps also in, the physical sense, apart‑from the decree‑sheet, comes immediately into existence the moment a judgment is pronounced in a case. The formal expression of adjudication by the Court concerned determining’ the rights of the parties as described in section 2, clause (2) of the Civil Procedure Code is made by the judgment itself putting the parties on notice of their success or defeat. To this extent, in another Full Bench case of the Dacca High Court, reported as Barada Prasanna Lod and others v. Kubbad Mian (P L D 1962 Dacca 381) it was held that the date of the decree is the date of the judgment which pronounced it and the requirement of the rule that the decree should bear the date of the judgment, necessarily means that the decree as drawn up in a formal document and signed by the Court, must bear the date of its birth, that is the date on which the judgment was pronounced. As a matter of fact the decree is embodied in the judgment. The Civil Procedure Code specifically provides that the decree as drawn up under Order XX, Rule (6), must be in conformity with the judgment which pronounced it upon a conclusive adjudication of the rights and liabilities of the respective parties to the suit and the decree emerges with the judgment. The two Full Bench cases, just mentioned are primarily concerned with the interpretation of section 12 of the Limitation Act (IX of 1908) and the question raised in them was as to whether the “time requisite” for obtaining certified copies would include the time spent by the Court in the preparation of the decree‑sheet for the purpose of computing the limitation for appeals against the decree, under Article 152 or 156 of the Limitation Act. It is, therefore, contended that these two cases are distinguishable and they are no authority for the proposition that for the purposes of the execution of a decree under Order XXI of the Code of Civil Procedure, the date of the decree must always be reckoned from the date of the judgment.

 

15. So far as I am aware there is no reported case of the Courts of this country directly in point; at least none was brought to my notice by the learned counsel for the parties at the hearing of this appeal. But on a careful consideration of the relevant provisions of the law, I am of the opinion that’ in computing the period of limitation prescribed for an application for execution of the decree the “date of the decree” must synchronise with and is dependent upon the date on which .the judgment was announced. This is irrespective of the fact that the decree‑sheet may have to be drawn up subsequently. The expression “date o the decree” is quite familiar and occurs at different places in sections 34, 48, 51, Order XXI, rule 11, Order XXI, rule 22 and Order XLV, rule 7 of the Code of Civil Procedure, 1908. Order XX, rule 7 specifically deals with the “date of the decree” and lays down that it shall bear the date of the day on which the judgment was pronounced. Keeping in view all the different provisions of the Code it cannot be urged with any success that the date‑of decree means the date on which the decree‑sheet was drawn up and was signed. On the contrary it only means the date on which it took its birth by the adjudication of the rights between the parties simultaneously with the pronouncement of the judgment by the Court. In the Owners of the Ship “Brenhilda” v. The British India Steam Navigation Company (I L R 7 Cal. 547). in the opinion of their Lordships of the Privy Council

 

———– the date of the decree did not mean that the date on which the decree was reduced to writing and signed by the Court, but the date on which the High Court delivered their judgment and expressed what the decree was.”

 

In another Privy Council case reported as Munginsram v. Gursahai (I L R 17 Cal. 347) their Lordships observed that the decree after it is drawn up relates back to the date of the judgment.

 

16. The expression “date of the decree” also occurs in Articles 152, 156, 161, 162, 164, 169, 170, 173, 175 and 188 of the Limitation Act, 1908. But it has nowhere been defined in the Limitation Act. Nonetheless, it appears to me that it should carry the meaning given to it in Order XX, rule 7, Code of Civil Procedure (Act V of 1908) was promulgated by the Legislature of 21st of March 1908. Soon afterwards the Limitation Act (IX of 1908) was enacted by the same Legislature on 7th August 1908 It may be readily presumed that the Legislature had used this expression with which it was familiar for the second time in the same sense in which it was‑ used in the earlier enactment particularly as in this case, the two enactment, dealing with cognate subject. The decree is embodied in the judgment itself and is ripe for execution the moment the judgment is announce putting the parties to notice of their inter se rights as found by the Court and in my opinion the execution of the decree is not postponed till after the decree‑sheet is actually drawn up. Indeed the provisions of Order XXI, rule 11 (1) of the Code would show that where a decree is for payment of money the Court may, on the oral application of the decree‑holder at the time of the passing of the judgment and the decree order immediate execution thereof by the arrest of the judgment‑debtor, prior to the preparation of a warrant. This implies that the oral application for execution can be entertained even before the formal decree‑sheet was drawn up by the Court. There is, thus, ample room for holding that for the purposes of Article 182 of the Limitation Act the period of three years prescribed for the execution of the decree should be reckoned from the date on which the judgment was pronounced with which the date of the decree must synchronise: In a Full Bench case, from the Indian Jurisdiction reported as Shri Ram Chandra Mardaray Deo v. Bhalau Patnik and others (A I R 1950 Orissa 125), majority of the learned Judges have held that the phrase “date of the decree” in Article 182 (1) of the Limitation Act must be construed with reference to the provisions of Order XX, rule 7 of the Civil Procedure Code to mean the date when the judgment was pronounced and not the date when the decree was actually drawn up and signed by the Court It was further held in that case that an application for execution filed more than 3 years from the date of the judgment but within 3 years of the signing of the decree, was barred by limitation.

 

17. A Division Bench of the Allahabad High Court of India in Anant Ram v. Bas Den Sahai and others on which reliance was placed by the learned counsel for the appellant is contrary to the dictum laid down in the Full Bench case from Orissa. This reported case from Allahabad is to the effect that Order XX, rule 7 simply provides as to what date should be given to the decree and that it does not lay down that in case a different date has been mentioned in the decree, it must be ignored and parties or the Court should always go to the judgment to find out as to what should be the date of the decree. It is further laid down in that case that if the decree bears a wrong date that date should be reckoned as the date of the decree for the purposes of Article 182, Limitation Act. The Court was also of the opinion that Order XX, rule 7, Civil Procedure Code, does not apply to a case where a preliminary and a final decree is contemplated, According to the learned Judges deciding That case the order for the preparation of a final decree is not a “judgment” inasmuch as it does not adjudicate on the right of the parties; the rights of the decree‑holder in case judgment‑debtor makes default in payment, are decided and laid down in the preliminary decree itself, and the Court on the presentation of an application for preparation of the final decree has to simply decide the objection of the judgment‑debtor, if any, about some alleged payment to the decree‑holder, which is not a decision on questions of the rights of parties to the suit, but is a decision of objections arising within the terms of preliminary decree. With reference to the learned Judges in the Allahabad case, for the reasons discussed above, I am unable to adopt that view. A palpably wrong date introduced in the decree‑sheet either by willful design or by sheer inadvertance does not bind any of the parties or the Court and is liable to be rectified. It does not affect the period of limitation which starts running with the pronouncement of the judgment with great respect to the learned Judges in the Allahabad case, their remarks about the nature of final ‑decree do not take due notice of the Explanation to section 2 (2) of the Code according to which a final decree is the adjudication which completely disposes of the suit between the parties. This view of the learned Judges in contrary to what is laid down in a large number of other cases reported from Allahabad and the various other Courts in India.

 

18. In spite of this discussion and the conclusions of law reached by me; I am unable to uphold the judgment under appeal passed by the learned Senior Civil Judge on 24th of March 1962 on the facts of this case. The preliminary decree in this case was passed by the Court on 8th of October 1953 in accordance with the compromise between the parties. As the judgment -debtors failed to pay the decretal amount within the time allowed by the Court, the decree‑holder on the 30th of August 1956 applied to the’ Court of Senior Civil Judge, Lahore under Order XXXIV, rules 4 and 5 of the Civil Procedure Code for a final decree for the sale of the mortgaged property. This application, specifically contains a prayer that the “mortgaged house be sold in accordance with the directions contained in the preliminary decree dated 8th of October 1953 to enable the decree‑holder, to realise the decretal amount together with interest which has accrued since the, passing of the preliminary decree.” This application contains a description of the house under mortgage which was sought to be sold through Court. It is also accompanied by a plan of the house. It further mentions that the decree‑holder was at liberty to pray for personal decree, in case any balance was found outstanding against the judgment‑debtors after realisation of the sale proceeds of the house under mortgage. In effect this was composite application moved for a two‑fold purpose. It purports to be made under Order XXXI, rules 4 and 5 of the Code for the final decree and yet at the same time, it also contains a distinct prayer .for the recovery of the decretal amount by ‑the sale of the property under the mortgage. To that extent it is in effect and substance also an application for the execution of the decree as finally passed. Notices of this application were sent to the judgment‑debtors and the Court also summoned the original file from the record room. It took some time to serve the judgment debtors and ultimately on 19th of January 1957 the Court passed the order for the final decree after receiving the report of the Civil Nazir to the effect that “the judgment‑debtors had failed to deposit the decretal amount in Court. As I look at this order, the application of the decree holder dated 30th of August 1956 was not completely disposed of and was never directed to be consigned to the Record Room. The important prayer of the decree‑holder in that application for recovery of the decretal amount by the sale of the mortgaged property remained pending in the Court and was never rejected by it. On 19th of May 1958, the decree‑holder applied to the Court on a miscellaneous petition for the preparation of the final decree‑sheet in the case. In fact it was the duty of the Court to have done so. The Court sent for the file from the record room on 20th of May 1958. But the case had to be adjourned from time to time in the absence of the record until it was received in the trial Court on the 6th of May 1961 and the final decree was actually drawn up and signed by the Senior Civil Judge, Lahore on, 15th of May 1961, and all this time was lost for no fault on the part of the appellant.

 

19. Be it as it may; as mentioned above the application of the decree‑holders dated 30th of August 1956 with the specific prayer for the recovery of the decretal amount by the sale of the mortgaged property through the Court remained pending throughout. Of course, it is not on the prescribed form as required by Order XXI rule 11 (2) of the Code. Nevertheless it does contain all the material particulars required for the purpose and the informality in not applying for execution of the decree on the prescribed form is immaterial. The defect is of form only and will not vitiate the application which is in effect and substance an application for the execution of the decree and tantamounts to a step for the execution of the decree. I am not unmindful of the fact that on the 30th of August 1956 when this application was submitted, the Court had not yet passed the final decree even and from that point of view the application for the execution of the decree may be considered to be premature. But as noticed above this application remained pending all along arid for the purposes of the execution of the decree its institution can be considered to be valid from the date of final decree passed on 19th January 1957. From this point of view no question of limitation even arises for the execution of the decree, I have to advert to the formal application of the decree‑holder for execution of the decree which was put in Court subsequently on 13th June 1961. Before this, on 6th May 1961 the executing Court asked the decree‑holder to apply under Order XXI, rule 66, C. P. C. in order to draw up the proclamation of sale. In compliance with that order the decree‑holder on 13th June 1961 made the requisite application under Order XXI, rule 66 to draw up the proclamation of sale and at the same‑ time also filed a separate application for execution of the decree on the prescribed form. The order of the Court dated 6th May 1961 is an intrinsic proof of the fact that the executing Court had taken those steps in aid Of the execution of the decree presumably in pursuance to the application dated 30th August 1956 for the sale of the mortgage property which remained pending in Court since then and the formal application by the decree‑holder for the execution of the decree was submitted by him on 13th March 1961 as a matter’ of abundant caution only:

 

20. It was also urged before me on behalf of the decree -holder that he should not be made to suffer on account of the mistake, inordinate delay and waste of time on the part of the Court to draw up the final decree in time from 20th August 1958 to 11th May 1961. In this connection reliance has been placed on Nalinl Kanta Roy v. Kamaraddi and others (A I R 1933 Cal. 239) and Kali Paishad. Sahu and others v. Mst. Bibi Aziz Fatima and others (A I R 1938 Pat. 149) which’ are based on a well‑recognized maxim, “actus curiae nominate gravabit” (act of Court shall prejudice no man). However, in the instant case there is no plea nor any evidence to establish that the decree‑holder was in fact prejudiced by the delay on the part .of the Court in the preparation of the decree‑sheet. The decree‑holder could have applied to the Court immediately on 19th January 1957 when the final decree was passed even though the decree‑sheet had not been formally drawn up.

 

21. This leaves me with the last objection of the judgment -debtors to the effect that this appeal has abated altogether by the death of Dilwar Ali, one of the judgment‑debtors. As mentioned above he died on 25th January 1962 even before the order under appeal which’ was passed by the learned Senior Civil Judge on 24th March 1962 in the absence of the legal representatives of the deceased. The appeal was filed in the Court of the Additional District Judge on 17th of May 1962 in the bona fide belief by the decree‑holder that Ch. Dilawar Ali was still alive. It was long afterwards on 24th June 1963 that the bank applied to this Court for the names of the legal representatives of Dilawar Ali deceased to be brought on the record. The fact remains that by virtue of rule 12 of Order XXII of the Code of Civil Procedure, the provisions of rules 3, 4 and 8 of that Order relating to abatement are not applicable to execution proceedings. Apart from this the death had taken place during the course of the hearing of the objections preferred by Ch. Karam Rabbani judgment‑debtor No. 3 under section 47 of the Code the other two judgment debtors did not join with him as the objectors. On the death of Dilawar Ali, during the course of the proceedings in the Court of first instance, his legal representatives were not brought on the record and for this the decree‑holder was not to be blamed. It was for Ch. Karam Rabbani, the objector to have impleaded the legal representatives of the deceased in the trial Court. The decree‑holder cannot be penalized for this fault on the part of one of the judgment‑debtors. At best what can be said is that the order passed by ‘the Senior Civil Judge in the absence of the legal representatives of Dilawar Ali deceased shall not bind them. They were no parties to it and likewise the result of this appeal shall not bind them. But from this I cannot hold that by any process of law this appeal is incompetent. The ruling, Ajdhia Parshad Ram Parshad v. Sham Sunder and others (A I R 1947, Lah. 13) cited before me on behalf of the respondents in distinguishable. In that case the death of one of the parties did not occur in the course of the proceedings before the Court in the first instance. The party died after the order under appeal but his legal representatives were not impleaded in time in the appeal.

 

22. Issue No. 2 has not been pressed and it was conceded before me that decree dated 8th October 1953 was merely a preliminary decree and‑ was not executable. That objection was rightly rejected by the executing Court.

 

23. In the result the order under appeal passed by the learned Senior Civil Judge, Lahore on 24th of March 1962 cannot be maintained arid is liable to be reversed and the execution of the decree against the respondents is bound to proceed is accordance with law. Therefore, I accept this appeal, set aside the order of the learned Senior Civil Judge and dismiss the objections of Ch. Karam Rabbani (judgment‑debtor) against the execution of the decree. But in the circumstances of this case the parties are left to bear their own costs of this appeal.

 

K. B. A. Appeal accepted.

 

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