~25
SANTI RANJAN DASS GUPTA
_v._
M/S DASIJRAM MIRZAMAL
_March_ 11, 1976
[A. N. RAY, C.J., M. JI. BEG AND JASWANT SINGH, JJ.]
A
B
### ..
_Indian Limitation Act,_ 1908, _:1._ 15, _whether attachment_ _of_ _decree_ _amount1_ _to_
_•stay' within the meaning_ _of-Execution_ _application struck_ _off-Another_ _appli-_
_cation on_ _decree_ _becoming executable,_ _if_ _continuation_ _of_ _t.he_ _previous_ _one._
The respondent obtained a m.oney-decree against the appellant, from the
Subordinate judge, Gauhati, and applied for its execution. The appellant applied
for an adjustment of the decree, <:IIld the respondent's application for execution
was dismissed. The appellant then obtained a' decree from the Subordinate C
Judge, Nowgong, against the respondent, and in its execution, got his cGauhati
decree attached. The appellant then withdrew his adjustment-application.
The High Court allowed the respondent's appeal for execution of the Gauhati
decree. The Subordinate Judge, Gauhati, struck off his original executionapplication from the file. Thereafter, the attachment order ceased to be operative on account of the High Court's allowance of the respondent's appeal in
the Nowgong matter, and the respondent again applied for execution of the
Gauhati decree, but the SuborJinate Judge, Gauhati, dismissed the application D
as time-barred. The High Court allowed his appeal and directed the execution to proceed. The appellant contended before this Court that attachment
of the respondent's decree did not amount to a 'stay' within the meaning of
S. 15 of the Indian Limitation Act, and therefore, his second application for
execution was barred by limitation, not having been filed within three years
of the first one being struck off by the Subordinate Judge, Gauhati.
Dismissing the appeal, the Court
HELD : ( 1) The order obtained by the appellant attaching the decree of
the respondent precluded the respon.dent from executing the decree during the
_Y_ time th.: rittnchnicnt \\'as in fore::. There was no question of limitation because
the application was filed within three years from 28 April, 1964, when the
bar against execution was raised and the attachment order ceased to be operative. [627B~]
E
(2) The order striking off the execution application was mere consigning
it to the record-room for statistical purposes. The application for execution F
on 27th July, 1965, is a continuation of the old application. L627D-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 858 of 1968.
From the Judgment and Decree dated 7-7-67 of the Assam and
Nagaland High Court at Gauhati in Misc. Appeal Nos. 36 and 37
of 1966.
_Sarjoo Prasad_ and _A._ _K. Nag_ for the appellant.
_B. P. Maheshwari_ for the respondent.
The Judgment of the Court was delivered by
RAY, CJ. Thi• appeal by certificate is from the order dated 26
. July, 1967 of the High Court of Assam.
The only question in this appeal is whether the responden:'s application filed on 27 July, 1965 for excution of !he decree obtamed by
him is barred by limitation.
G
# •
A
B
##### c
D
626 SUPREME COURT REPORTS (1976] 3 S.C.R.
The respondent on 7 January, 1952 obtained a decree against the
appellant for the sum of Rs. 71,980 in a money suit filed in the Court
of Subordinate Jndge, Gauhati. On 8 December, 1956 the respondent
decree-holder filed an application No. 89/56 for executing the said
decree. On 15 July, 1957 the appellant, the judgment debtor, filed an
application pleading adjustment of the decree. On 15 April, 1958 the
judgment debtor withdrew the said application. On 18 December,
1957 the Subordinate Judge Gauhati dismissed the decree-holder's
application No. 89 /56. The decree-holder preferred an appeal. The
High Court at Gauhati on 1 July, 1959 set aside the order of the
Subordinate Judge and allowed the appeal for execution of the decree.
Meanwhile on 18 January, 1958 the appellant judgment debtor in
the Gauhati suit obtained a decree against the respondent for the sum
of Rs. 1,22,000 in the Court of the Subordinate Judge at Nowgong.
In execution of the decree in the Nowgong suit the appellant on or
about 29 January, 1958 obtained an attachment of the respondent's
decree passed in the Gauhati suit.
On 13 August, 1959 the Subordinate Judge, Gauhati struck off the
execution application No. 89/56 from the file.
The respond,ent filed an appeal against the decree obtained by the appellant in the Nowgong suit. The High Court on 28 April 1964
accepted the appeal filed by the respondent and dismissed the N owgong
suit filed by the appellant.
## •
On 27 July, 1965 the respondent filed an application for execution
E in the Court of the Subordinate Judge, Gauhati. The appellant preferred an objection contending that the application is barred by limitation.
On 4 March, 1966 the Subordinate Judge dismissed the execution _---1,'_
application as barred by time.
F"
G
H
On 26 July, 1967 the High Court accepted the appeal filed by the
respondent and directed the execution to proceed.
The contention of the appellant is that the order obtained by the
appellant attaching the respondent's decree did not amount to a stay
within the meaning of section 15 of the Indian Limitation Act, 1908,
and therefore, the respondent's application for execution which was
filed on 27 July, 1965 was barred by limitation. The appellant contended that when the Subordinate Judge, Gauhati on 13 August, 1959'
struck off the execution application of the respondent the respondent
should have filed an application for execution within three years from
that date.
The High Court referred to the order dated 29 January, 1958
passed by the N owgong Court attaching the decree obtained by the respondent. The High Court relied on the provisions contained in Order
21 Rule 53 (1) (b) of the Code of Civil Procedure and held that the
attachment continued restraining the respondent from executing the
decree until the notice issued by the Court attaching the decree was
recalled. The Nowgong court did not pass any order recalling tho
S. R. DASS GUPTA _V._ DASURAM MIRZAMAL _(Ray, C.J.)_ 627
order. On l March, 1958 the Nowgong court passed an order which A.
was as follows :
"Notice served. No objection filed by J. D. (meaning
thereby judgment debtor). Heard both parties. Execution
case is struck off for the present. Attachment to continue
until further orders."
In the context of this order of attachment passed by the Nowgong
court the attachment continued until the Nowgong suit was dismissed
by the High Court on 28 April, 1964. The High Court rightly held
that there was no question of limitation because the application was
filed within three years from 28 April, 1964 when the bar against
execution was raised and the order restraining the respondent decree
holder from executing the decree in the Gauhati suit ceased to be
operative.
B.
##### c
#### •
Another contention which had been raised by the appellant and
repeated here is that when the Gauhati court on 13 Angust, 1959
struck off the execution case No. 89/56 the execution application filed
on 27 July, 1965 was barred by time. The High Court held that the
Gauhati Court on 13 August, 1959 merely struck off the execution
application, and, therefore, the subsequent application which was made I)
was a continuation of the execution proceedings. The High Court
held that striking off. the application did not amount to any order
deciding the merits of the application.
The order obtained by the appellant attaching the decree of the respondent in the Gauhati suit has been rightly held by the High Court to
have precluded the respondent from executing the decree during the
time the attachment was in force. The other conclusion of the High
Court that the execution application dated 27 July, 1965 was a continuation of the earlier application is also correct. The order striking
off the execution application has been rightly construed by the High
Court as merely consigning the application to the Record Room for
statistical purposes. The application dated 27 July, 1965 indicates in
column 2 as the respondent rightly stated that the previous application
for execution was struck off on 13 August, 1959 because of the order
of attachment passed by the Nowgong court. The attachment order
was nullified only when the appellant's suit was dismissed by the High
Court on 28 April, 1964. The respondent's decree became execntable
at that time. The inescapable conclusion is that the application for
execution on 27 July, 1965 is a continuation of the old application.
For these reasons, the judgment of the High Court is affirmed. The
appeal is dismissed with costs.
M.R. _Appeal dismissed._
E
F
G
