1920 (3) TMI 3 - HC - Indian Laws

Execution petition timely filed due to payment. Proceedings continue under Transfer of Property Act. Lower court decision set aside.

The court concluded that the execution petition was timely filed within the limitation period due to a payment made by the 4th respondent. Despite the ... - Issues Involved:1. Timeliness of the execution petition.2. Applicability of the Transfer of Property Act vs. Civil Procedure Code.3. Impact of the appellate decree on the execution.4. Limitation period for execution applications.5. Rights of the purchaser pendent lite.Issue-wise Detailed Analysis:1. Timeliness of the Execution Petition:The main question was whether the execution petition filed on 16th January 1918 was within the limitation period. The appellant argued that the payment of Rs. 8,000 by the 4th respondent on 3rd March 1915 extended the limitation period under Section 19 of the Limitation Act. The court concluded that the payment did indeed act as a starting point for a new limitation period, thereby making the execution petition timely.2. Applicability of the Transfer of Property Act vs. Civil Procedure Code:The appellant obtained a decree under the Transfer of Property Act, which was in force when the suit was tried and the decree was obtained. However, during the pendency of the appeal, Sections 88 and 89 of the Transfer of Property Act were repealed, and Order XXXIV of the Civil Procedure Code came into force. The court held that the proceedings should continue under the Transfer of Property Act, as the appellant had already acquired a vested right under the repealed Act. This was supported by the principle that no statute shall be construed to have a retrospective operation unless plainly required by its language.3. Impact of the Appellate Decree on the Execution:The court examined whether the decree of the first court or the appellate court should be considered for execution purposes. It was concluded that the decree of the first court remains executable, and the limitation period for execution should be counted from the date of the appellate decree. This interpretation aligns with the Judicial Committee's decision in Hukum Chand Boid v. Pirthichand Lal, which emphasized that a decree is enforceable notwithstanding an appeal.4. Limitation Period for Execution Applications:The court analyzed whether the application was barred by limitation under Article 182 of the Limitation Act, which provides a three-year limitation period from the date of the appellate decree. Given that the appellate decree was dated 23rd February 1911, and the first execution application was made on 20th February 1914, the court held that the application was within the limitation period. Additionally, the payment by the 4th respondent on 3rd March 1915 further extended the limitation period under Section 19 of the Limitation Act.5. Rights of the Purchaser Pendent Lite:The 4th respondent, who purchased the equity of redemption during the pendency of the suit, argued that the application against him was barred by limitation. The court held that a purchaser pendent lite is bound by the proceedings against the original party, and any action taken against the party on record affects such a purchaser. The court cited Section 146 of the Civil Procedure Code, which allows proceedings to continue against a person claiming under the original party. The payment made by the 4th respondent was considered an acknowledgment of liability, thereby extending the limitation period.Conclusion:The court set aside the decision of the lower court, remanding the petition for re-admission and disposal on its merits. The appeal was allowed, and costs were to follow the result between the 4th respondent and the petitioner. No order as to costs was made concerning the legal representative of the judgment debtor.