Thursday, 31 January 2013
application under Order 9 Rule 9 of cpc.
Decree against plaintiff by default bars fresh suit
(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall appoint a day for proceeding with suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.
Madhya pradesh High Court
Surajdin And Ors. vs Shriniwas And Ors.
Bench: A Mathur, D Dharmadhikari, D Misra
D.M. Dharmadhikari, J.
1. The learned Single Judge (B. C. Verma, J. as he then was) in the course of deciding this appeal on 28-7-1983 noticed conflicting decisions of the two Division Benches of this Court on the question of the applicability of the provisions of Article 182 of the Limitation Act, 1908 and has, therefore, referred the following questions to the Full Bench for decision:
(1) Whether the word 'appeal' as used in Clause (2) of Article 182 of the Limitation Act, 1908 means an appeal from a decree which is sought to be executed or it will include even an appellate order made on refusing to set aside the exparte decree, and
(2) Whether contesting an application by judgment-debtor for setting aside an ex parte decree under Order 9, Rule 13 of the Civil Procedure Code, constitutes a step-in-aid within the meaning of Article 182(5) of the Indian Limitation Act, 1908?
2. Before pointing out the conflict of decisions between the two Division Benches of this Court, the factual background in which the two questions arise may be set out.
3. In Civil Suit No. 14-A of 1944, on 27-4-1946 the Court of Additional District Judge, Bilaspur passed the preliminary decree for foreclosure on the mortgage deed dated 11-7-1932. A period of six months was fixed in the decree for payment of the decretal amount, and on failure the plaintiff should obtain a final decree. The judgment-debtor failed to make the payment within time. On 17-2-1947, the decree-holder made an application for passing a final decree. The judgment-debtor had preferred an appeal against the preliminary decree and the passing of final decree was stayed. The said first appeal against preliminary decree was, however, dismissed in 1957. On 28-10-1958, a final decree for foreclosure was passed ex parte. On 30-10-1958, the judgment-debtor filed an application under Order 9, Rule 13, Civil Procedure Code for setting aside the ex parte final decree. The stay application was rejected on 8-5-1959 against which the judgment-debtor preferred Misc. (First) Appeal No. 98 of 1959. He also obtained stay of execution of the decree on 22-3-1960. The appeal against rejection of the application for setting aside exparte decree was, however, dismissed on 27-1-1961.
4. The decree-holder thereafter filed application for execution of final decree on 27-9-1965. According to the decree-holder, since the exparte final decree of foreclosure was subject matter of the miscellaneous appeal, the period of limitation for filing application for execution under Article 182(2) of the Limitation Act of 1908 was to commence from 27-1-1961 when the appeal of the judgment-debtor against rejection of his application under Order 9, Rule 13, Civil Procedure Code for setting aside the decree was rejected.
5. On the other hand, the case of the judgment-debtor is that under Article 182 of the Limitation Act of 1908, the period of limitation will be reckoned from the date of passing of the final decree on 28-10-1958 and the application for execution having been filed beyond the prescribed period of three years, the application is barred by time. It is contended on behalf of the judgment-debtor that the appeal of the judgment-debtor against rejection of his application under Order 9, Rule 13, Civil Procedure Code for setting aside ex parte decree is not covered by Article 182(2) of the Limitation Act because there the period of limitation is reckoned from the date of order passed in appeal only if the appeal is against an executable decree or order. It is contended that the use of the expression "Where there has been an appeal" in Article 182(2) of the Act of 1908 will not include an appeal in collateral proceedings.
6. Since the answers to the two questions referred require interpretation of the relevant entries of Article 182 of the Act of 1908, the said entries are reproduced hereunder: Description of application Period of Limitation Time from which period begins to r
"182. For the execution of Three years: or where a 1. The date of the
a decree or order of any civil certified copy of the decree decree or order, o r
Court not provided for by or order has been Article 183 or by section 48 registered, six years. (For of the Code of Civil the State of U. P. the words Procedure, 1908 (V of 1908) "six years" have been substituted for "three
years", by the U. P. Act 24
2. (whether there
been an appeal) t
of the final decr
order of the appe
Court, or the wit
of the appeal, or
3. (where there h
a review of judgm
the date of the d
passed on the rev
4. (where the dec
been amended) the
of amendment, or
5. (where the app
has been made) th
of the final orde
on an application
in accordance wit
to the proper Cou
execution or to t
some step in aid
execution of the
or order, or.....
7. In an unreported decision of the Division Bench consisting of N. M. Golvalkar and S. P. Bhargava, JJ. (as they were then) in L.P.A. 13 of 1961 decided on 20-2-1963, the question of commencement of period of limitation arose on similar facts. The learned Judges, in the aforesaid decision, upheld the view expressed by P. K. Tare, J. (as he then was) in the order passed in the original appeal (M. A. No. 137 of 1960 decided on 16-2-1961) which had given rise to the L.P.A. decided by the Division Bench (supra). In construing the entry contained in Article 182(2), the Division Bench headed by N. M. Golvalkar, J. held that the words "where there has been an appeal" would include such collateral proceedings in appeal against an order passed under Order 9, Rule 13, Civil Procedure Code as such proceedings have a direct or immediate connection with the decree to be put into execution. The reasoning adopted is that the very decree which was put into execution was in a jeopardy and liable to be set aside in proceedings in appeal against the order rejecting the application for setting aside the ex parte decree. If the appeal had been allowed, any execution in the meantime commenced would have necessarily come to an end automatically. The Division Bench (supra) in taking the above view in the Letters Patent Appeal, took support from the observations on the subject made by the Supreme Court in the case of Bhawanipore Banking Corporation Ltd. v. Gourishankar Sharma, AIR 1950 SC 6.
8. The other Division Bench of this Court consisting of Shivdayal, C. J. and J. P. Bajpai, J. (as they were then) in a decision reported in 1978 MPLJ 272 = 1978 JLJ 245, Laxmichand Jagannath Pandey v. Challu Raisa, however, expressed a contrary opinion. The unreported decision of the Division Bench headed by Golvalkar, J. passed in the L.P.A., it appears, was not brought to the notice of the Division Bench headed by Shivdayal, C. J. in the case of Laxmichand (supra). The latter D. B., by seeking support from the same decision of the Supreme Court in Bhawanipore Banking Corporation Ltd. (supra) and a Privy Council decision reported in AIR 1932 Privy Council 165, Nagendra Nath Dey v. Suresh Chandra Dey, gave a considered opinion on a specific question referred to them and held that the word 'appeal' used in Clause (2) of Article 182 of the Act of 1908 would not include an appeal from an order made in miscellaneous proceedings under Order 9, Rule 13, Civil Procedure Code refusing to set aside the ex parte decree. The opinion expressed in the latter decision of this Court is to be found in paragraph 14, which is as under:
"It is true that if a decree-holder is required to prosecute an ex parte decree even when the proceedings for getting the same set aside are pending either at the original stage or before the appellate Court, there is always a possibility that in case of ex parte decree, being set aside, all efforts made for executing the decree will become futile but for this consideration you cannot rewrite the provisions contained in Article 182 of the Limitation Act. You cannot construe the provisions of the statute prescribing limitation de hors of the context. Similarly, you cannot read something which is not there merely on certain equitable considerations because the field covered by the statute prescribing limitation is not of one way traffic. It, on the one hand, bars the remedy and on the other hand creates a valuable right in favour of the other side due to expiry of the period of limitation. Such a right cannot be taken away by the Courts by rewriting the law in the garb of interpretation.. If it is felt that certain provisions are causing hardship and resulting in unfairness, it is for the Legislature to consider the situation and to make suitable amendments."
9. Shri Ravish Agarwal, learned counsel appearing for the decree-holders before us, strenuously made efforts to support the view expressed in the earlier unreported decision of this Court by a Division Bench headed by Golvalkar, J. On the other hand, Shri R. K. Pandey, assisted by Shri Sanjay Dwivedi, supported the later view expressed in the reported decision of this Court by another Division Bench headed by Shivdayal, C.J.
10. We have carefully examined the two conflicting views expressed by the two Division Benches and have also considered the submissions made on the interpretation of Article 182(2) of the Limitation Act. The question requires interpretation of the relevant entry in Clauses (2) and (5) of Article 182 of the Limitation Act, 1908. Looking at the relevant entry contained in Clause (2) of Article 182, in our opinion, we find that the various clauses in Article 182 cannot be read and construed in isolation from each other. All the entries in Clauses (1) to (7) and the Explanation therein have to be read in continuation and have to be construed in conjunction with each other. The normal rule of interpretation is that general words in a statute must receive general construction unless there is some thing in the Act itself such as the subject matter with which the Act is dealing or the context in which the said words are used to show the intention of the Legislature that they must be given a restrictive or wider meaning. It is quite often that the object or the subject matter or the collocation or speaking briefly the context has the effect of restricting the normal wide meaning of general words, "for words and particularly general words cannot be read in isolation, their colour and content are derived from their context". It is recognised principle of construction, observed Kapur, J. in Express Mills v. Municipal Committee, Wardha, AIR 1958 SC 341, that general words and phrases, however wide and comprehensive they may be in their literal sense, must usually be construed as being limited to the actual objects of the Act. It may in the same context be said that it is a sound rule of construction to confine the general provisions of a statute to the statute itself. "One of the safest guides to the construction of sweeping general words which it is difficult to apply in their full literal sense" stated the Privy Council, "is to examine other words of like import in the same instrument and to see what limitations can be placed on them." [See: Principles of Statutory Interpretation by Justice G. P. Singh, Sixth Edition 1996, Pages 294 to 296].
11. Thus, taking aid of the settled principles of construction, if the Clauses (1) and (2) of Article 182 are examined, it would" be seen that in Clause (1) the period prescribed for filing an application for execution is from the date of decree or order. Clause (2) in continuation states that "where there has been an appeal", the date of the final decree or order of the appellate Court would be the date of commencement of the decree. The two Clauses (1) and (2) in Article 182 in the context of the period of limitation have to be read in conjunction with each other and not in isolation. Clause (1) speaks of date of the decree or executable order. The Clause (2), therefore, refers to an appeal against the decree or the executable order. The word "appeal" in Clause (2) of Article 182 cannot be read and construed to mean even other kinds of appeals which are not against the decree or executable order. The appeal in collateral proceedings such as under Order 9, Rule 13, Civil Procedure Code for setting aside ex parte decree, in our opinion, are not covered within the word "appeal" in Clause (2) of Article 182 because the word "appeal" therein, in the context, refers only to appeal against a decree or executable order mentioned in Clause (1). In thus interpreting the relevant entry in Clause (2) of Article 182, we find great support from the decision of the Supreme Court in the case of Bhawanipore Banking Corporation Ltd., AIR 1950 SC 6 (supra). In the Supreme Court case, in a suit instituted to enforce a mortgage, after a preliminary decree was passed, the judgment-debtors made an application under section 36 of the Bengal Money-lenders Act for reopening the preliminary decree. That application was dismissed in default. The judgment-debtor then made an application under Order 9, Rule 9, Civil Procedure Code for restoration of their application under the Money-lenders Act. That application was also dismissed. The question arose before the Supreme Court was whether the period of limitation can be said to have commenced from the date of rejection of the appeal against the order made on the application under Order 9, Rule 9, Civil Procedure Code. It is in that context that Article 182, Clause (2) came up for consideration before the Supreme Court and in paragraph 5 of the judgment it has been held that an appeal from the order dismissing the application under Order 9, Rule 9, Civil Procedure Code is not included within the word "appeal" used in Clause (2) of Article 182, Paragraph 5 of the said decision read thus:
"It was also suggested by the learned counsel for the appellant that the case might be held to be covered by Clause (2) of Article 182 on the ground that even though no appeal was preferred from the final mortgage decree, the words "where there has been an appeal" are comprehensive enough to include in this case the appeal from the order dismissing the application under Order 9, Rule 9, Civil Procedure Code, made in connection with the proceedings under section 36, Money-lenders Act. This argument also is a highly far-fetched one, because the expression "where there has been an appeal" must be read with the words in Col. 1 of Article 182, viz., "for the execution of a decree or order of any Civil Court..." and however broadly we may construe it, it cannot be held to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection with the decree under execution."
12. The decision of the Supreme Court in Bhawanipore Banking Corporation Ltd. (supra) was referred and relied on by the earlier Division Bench in its unreported decision particularly laying emphasis on the last part of the above-quoted observations, it was stated that in the Supreme Court case, the collateral proceedings under Bengal Money-lenders Act had no direct or immediate connection with the decree under execution, but in a case where the proceedings are under Order 9, Rule 13, Civil Procedure Code, the decree itself is in jeopardy. The Supreme Court decision was thus distinguished. On a closer examination of the provisions contained in Article 182 and the above quoted observations of the Supreme Court, we do not find that the distinction made in the former Division Bench decision of this Court has any substance. Where there are collateral proceedings in a suit, the possibility of the decree itself being set aside is never ruled out. In the Supreme Court (supra) also as the facts have been stated above, the application under Money-lenders Act was for reopening of preliminary decree. That would have definitely affected the final decree as also its execution. The words underlined in the observations of the Supreme Court quoted above, therefore, could not have been taken aid of by the earlier Division Bench of this Court in its unreported decision for holding that appeal arising out of proceedings under Order 9, Rule 13, Civil Procedure Code is covered within the word 'appeal' used in Clause (2) of Article 182 of the Act of 1908.
13. As has been rightly observed in the above quoted portion of the reported decision of the Division Bench headed by Shivdayal, C. J., a wider meaning to the word "appeal" used in Article 182(2) could not have been given contrary to the settled canon of constructions. Clauses (1) and (2) and other Clauses in Article 182 have to be read in conjunction and together and not in isolation. If they are so read and construed, the reasonable conclusion is that in the word "appeal" in Clause (2), only appeals against decree and executable order mentioned in Clause (1) alone are included and not other appeals arising out of collateral proceedings including one under Order 9, Rule 13, Civil Procedure Code. The equitable consideration that has been applied as an additional reasoning by the former Division Bench is foreign to statute like Limitation Act which requires strict construction. The following observations of the Privy Council in the case of Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 Privy Council 165 enforce the view taken by us:-
"Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon the plain words of the article: "where there has been an appeal", time is to run from the date of the decree of the appellate Court. There is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think the only safe guide. It is at least an intelligible rule that so long as there is any question subjudice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court. But whether there be or be not a theoretical justification for the provision in question, their Lordships think that the words of the article are plain, and that there having been in the present case an appeal from the mortgage decree of 24th June, 1920, time only ran against the appellants from 24th August, 1922, the date of the appellate Court's decree. They are therefore in agreement upon this point with the Subordinate Judge, and they think that the order passed by him on 4th August, 1924 was right."
14. The later part of the observations made above by the Privy Council were because of the peculiarity of the facts therein. There, there was regular appeal, but it was defectively framed and all parties were not joined. The appeal was defective and came to be rejected on subsequent date. It is on those facts that it was held that the period of limitation would run from the date of rejection of that appeal.
15. As far as the question No. 2 referred to above is concerned, based on Clause (5) of Article 182, we find no difficulty in answering it in the negative against the decree-holder. A pending application under Order 9, Rule 13, Civil Procedure Code by the judgment-debtor and the consequent proceedings taken in appeal resulting in its rejection cannot by any stretch of imagination be held as "steps taken in aid of execution" of the decree by the decree-holder. The plain language of Clause (5) itself deserves answer of question No. 2 in the negative against the decree-holder.
16. To conclude, our answers to the two questions are in the negative as under:
(1) The word 'appeal' as used as Clause (2) of Article 182 of the Limitation Act, 1908 means an appeal from a decree or an order which is sought to be executed. It will not include an appeal made against an order refusing to set aside ex parte decree under Order 9, Rule 13 of the Civil Procedure Code.
(2) Contesting of an application by the judgment-debtor for setting aside an ex parte decree under Order 9, Rule 13, Civil Procedure Code does not constitute step-in-aid within the meaning of Article 182(5) of the Limitation Act, 1908.
16. Let the case now be listed before the appropriate Bench for deciding the appeal on merits in the light of the answers given by us to the two questions referred. The costs of the present proceedings shall abide the ultimate result of the appeal on merits.