# (94 PREMRAJ v. RAM CHARAN Mat·ch 4, 1974 - **Citation:** [1974] 3 S.C.R. 494 - **Court:** Supreme Court of India - **Decided:** 1974 - **Bench:** P. Jaganmohan Reddy, S. N. Dwivedi, P. K. GoSWAMI - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/94-premraj-v-ram-charan-mat-ch-4-1974-6092 - **Pages:** 25 ## Headnote Limitation Act 1908---S. 182-Whethcr the fifth applicatioll for execution was a "step in aid of execution" and if so, whether ir is barred by limitation. K. and his wife purchased the house in dispute. K died in 1936 leaving behind him S and R, his son. In 1951, R mortgaged the house to the appellant. The. appellant obtained a preliminary decree for foreclosure and also the final decree In the meantime, S. gifted the entire house to Prakash Chandra son of R. He thereafter, frustrated several attempts of the appellant to execute the decree and in 1956, instituted a suit against the appellant and another for a declaration that the preliminary and final decree of foreclosure were not binding on him and prayed for a perpetual injunction against the appellant. The suit was dismissed but he appealed. The appeal court partly allowed his appeal holding that he ~·~s t~e o~ner. of half share in the house by virtue of the gift and issued an I OJ unction m hts favour. The appellant filed a second appeal in the High Court and Prakash Chandra also filed a cross-objection in respect of his half share. Both the appeal and the cross-objection were dismissed by the High Court The fourth execution application filed by the appellant was dismissed on June 23, 1956. The fifth execution application was filed by the appellant on July 28, 1964 for possession of half of the house. The respondent objected to this application on the ground of limitation. The objection was disallowed by the execution court and by the appeal court. It was, however, upheld by the High Court and the appli· cation was dismissed as time-barred. Hence this appeal. 3 points were raised by the appellant before this Court-(1) Limitation is saved by cis. 1, 2 & 4 of Art. 182 (ii) Limitation is saved by cl. 5 of Art. 182 and (iii) the fifth application for execution was really an application to revive the fourth execution proceeding and therefore, it was not time-barred. Dismissing the appeal, HELD : (i) It is plain that neither the decree of the appeal court nor the decree of the High Court reversed, varied or amended in any manner the final foreclosure decree of the appellant. The foreclosure decree remained intact and fully alive. It could be executed against the respondent according to its tenor. He could be ejected from the whole house. But it could never have any effect against Prakash Chandra's (the respondent's son) paramount title to a half ~har~ in the house. Prakash Chandra's appeal and the High Court decree I?assed m h1s a~penl ~ould not fall within cls. 2 & 4 of Art.182 and would not fllrmsh a fresh start.mg pomt of limitation for executing 'the foreclosure decree against the respondent-judgment debtor. Bhawanipur Banking Corporation Ltd. v. Guri Sf1ankr1· Sanna (1950] SCR 25 referred to. [498 A-B, q (ii) In order to get the advantage ofCl. 5 of Art. 182, the appell~nt has to satisfy 3 conditions:- (a) the written statement filed in respondent-son's suit and in his appeal were an "application" (b) the Court where respondent-son's case and appeal, and wherein the appellant's second appeal was filed were the proper court, and (c) Proceedings specified in (a} are a step in aid of execution of the decree sought to be executed by the appellant. {498 D·F] (iii) To oppose Prakash Chandra's suit, the appellant had filed a written statemen!. Tbe written statement ordinarily does not include any request to the court and 1t is not an 'application' within the meaning of Cl. 5 of Art. 182. [499 C·D] A B c D E F G H A B c D E F G H PREM RAJ v. RAM CH.UAN (Dwivedi, ],) (95 (PflllltQ LDI v. Snrt. SarasWQti De~i AIR 1960 All S72 and Karlar Si~i. v, SMllaff Singii'Par~ap Sitith A.J.R. 1967 Punjab:m, distinguished.) · (iV) Further, even if the suit and appeal was instituted in the proPer court, the written statement filed by the appeUant was not an application and· thw:fore, he caDDot take advantage of 0. !! of Art. 182. -As the appellant's appeal ~n the Hiah Court was not an application ## Text _Characters 0–39,783 of 76,722. This is a partial read: ask again with offset=39783 for what follows._ .(94 PREMRAJ v. RAM CHARAN Mat·ch 4, 1974 [P. JAGANMOHAN REDDY, S. N. DWIVEDI AND P. K. GoSWAMI, JJ.) Limitation Act 1908---S. 182-Whethcr the fifth applicatioll for execution was a "step in aid of execution" and if so, whether ir is barred by limitation. K. and his wife purchased the house in dispute. K died in 1936 leaving behind him S and R, his son. In 1951, R mortgaged the house to the appellant. The. appellant obtained a preliminary decree for foreclosure and also the final decree In the meantime, S. gifted the entire house to Prakash Chandra son of R. He thereafter, frustrated several attempts of the appellant to execute the decree and in 1956, instituted a suit against the appellant and another for a declaration that the preliminary and final decree of foreclosure were not binding on him and prayed for a perpetual injunction against the appellant. The suit was dismissed but he appealed. The appeal court partly allowed his appeal holding that he ~·~s t~e o~ner. of half share in the house by virtue of the gift and issued an I OJ unction m hts favour. The appellant filed a second appeal in the High Court and Prakash Chandra also filed a cross-objection in respect of his half share. Both the appeal and the cross-objection were dismissed by the High Court The fourth execution application filed by the appellant was dismissed on June 23, 1956. The fifth execution application was filed by the appellant on July 28, 1964 for possession of half of the house. The respondent objected to this application on the ground of limitation. The objection was disallowed by the execution court and by the appeal court. It was, however, upheld by the High Court and the appli· cation was dismissed as time-barred. Hence this appeal. 3 points were raised by the appellant before this Court-(1) Limitation is saved by cis. 1, 2 & 4 of Art. 182 (ii) Limitation is saved by cl. 5 of Art. 182 and (iii) the fifth application for execution was really an application to revive the fourth execution proceeding and therefore, it was not time-barred. Dismissing the appeal, HELD : (i) It is plain that neither the decree of the appeal court nor the decree of the High Court reversed, varied or amended in any manner the final foreclosure decree of the appellant. The foreclosure decree remained intact and fully alive. It could be executed against the respondent according to its tenor. He could be ejected from the whole house. But it could never have any effect against Prakash Chandra's (the respondent's son) paramount title to a half ~har~ in the house. Prakash Chandra's appeal and the High Court decree I?assed m h1s a~penl ~ould not fall within cls. 2 & 4 of Art.182 and would not fllrmsh a fresh start.mg pomt of limitation for executing 'the foreclosure decree against the respondent-judgment debtor. Bhawanipur Banking Corporation Ltd. v. Guri Sf1ankr1· Sanna (1950] SCR 25 referred to. [498 A-B, q (ii) In order to get the advantage ofCl. 5 of Art. 182, the appell~nt has to satisfy 3 conditions:- (a) the written statement filed in respondent-son's suit and in his appeal were an "application" (b) the Court where respondent-son's case and appeal, and wherein the appellant's second appeal was filed were the proper court, and (c) Proceedings specified in (a} are a step in aid of execution of the decree sought to be executed by the appellant. {498 D·F] (iii) To oppose Prakash Chandra's suit, the appellant had filed a written statemen!. Tbe written statement ordinarily does not include any request to the court and 1t is not an 'application' within the meaning of Cl. 5 of Art. 182. [499 C·D] A B c D E F G H A B c D E F G H PREM RAJ v. RAM CH.UAN (Dwivedi, ],) (95 (PflllltQ LDI v. Snrt. SarasWQti De~i AIR 1960 All S72 and Karlar Si~i. v, SMllaff Singii'Par~ap Sitith A.J.R. 1967 Punjab:m, distinguished.) · (iV) Further, even if the suit and appeal was instituted in the proPer court, the written statement filed by the appeUant was not an application and· thw:fore, he caDDot take advantage of 0. !! of Art. 182. -As the appellant's appeal ~n the Hiah Court was not an application to the 'Proper Court', it is unnecessary to deCide whether . in 1he suit and in the appeal filed by Prakash Chandra the written statement of ·the appellant and his resistance to ibe appeal and his second appeal in tho High Court amounted to a step-in-aid in execution of the decree sought to be executed by him. [500 A-D, SOJH-S04 AJ . (v) The fifth application for execution was not a continuation of tho previous application because the previous application was dismissed for not payilir tho process fee etc. and it was not a pending application. [504 D-E] DIJselftinz Ptr Goswami J.-The appellant was faced with resistance from the respondent and his relations. The appellant made abortive attempts to . execute the mortgage decree in order to obtain posseSsion of the suit property. Having failed to obtain possession by usual civil process the appellant applied for poli~ belp which was rejected. Further, the respondents' soil dragged the appellant to a suit which became another obstacle to the execution of the dc!t:rec for possession of the suit property. Further, the partly accepted appeal of the judgment debtor's son by the appellate Court changed the character of the original foreclosure decree which the appellant could execute. Further, because of injunctioru restraining the appellant from executing the foreclosure decree in full the original foreclosure decree, in the form it was, was not capable of execution. [S17 C-B, 518 B] MaMraja Sir Rmneshwor Silf6h lklhadllr v. Homeshwar Singh (1921) 40 Madrrn L8w JourfiDI l/6, referred to. Tberefore, the decree the Civil suit No. 75A of 1957 had a direct and immediate connection with and effect upon the decree in suit No. 27A of 1952 sought to be executed. The nexus between the two is manifestly clear, It was obvious that the appellants' successive ecphractic actions in defending the foreclosure decree in different ways until its final determination in the High Court were all "Steps in aid of execution" of his foreclosure decree !nd therefore, the appellants' fifth exe- . eution application was witllln time, being within 3 years from the date of the final order in the High Court on January 1, 1962: [517 E·HJ Nagendra Nath Raj & Ors. v. Suresh Chander Dey & Ors. A.LR. 1932 P.C.l65/ 167,V. E. A. Annama!ai Chethar v. Val/iammai Achi and or1 .12 IA 296/303; Bhaw®ipore Banking Corporation Ltd. v. Gouri Shanker Sharma (1950]; S.C.R. (25) Rufba Narayan & Ors. v. Maharaja- Kapurthala AJ.R. 1936 Oudh 248, A.S. Kr-uhanappa Chetfrar &: Ors. v. Nachiappa Chethar & Ors. [1964] S.CR. 241/252 etc., referred to. CIVIL APPELLATE JURlSDICf!ON : Civil Appzal No. 1607 of 1967. Appeal by Special leave from the Judgment and Decree dated the 3rd February, 1967 of the Madhya Prade~h Hi<>h Court at Jabalpur in Civil Misc. Second Appeal No. 124 of 1966. "' B. D. Sharma for the appellant. B. N. Lokur and A. G. Ratnaparkhi for the respondent. The ~udgment of P. JAGANMOHAN Rmov AND S. N. DWivEDr, JJ. w~ _deltvered by DwrVEDI, J. P. K. GoswAMI, J. gave a dissenting Opmton. DWIVI!Dr, J.-Kariya and his wife Sava purcbased the house in dispute by a registered deed on Apr_il 2, 1905. K1riya died in 1936 leaving behind him Sava and Ram Charan, his son. On August 16, 1951 Ram Charan mortgaged the house to Prem Raj (the appellant). Prem Raj obtained a preliminary decree for foreclos.ur,e on August 496 SUPREME COURT REPORTS £19741 3 S.C.R. 16, 1952 and also the .final decree on July 16, 1955. In the meanwhile on March 7,1952 Sava gifted the entire house to Prakash Chandra, son of Ram Charan, the respondent. Fortified by this gift. Prakash .Chandra frustrated several attempts of the appellant to set · poss:::ssion of the house in execution of his decree. He made three unsuccessful -attempts to execute the decree till the end of 1954. He made the fourth attempt on April 25, 1956 .. Shortly. thereafter, on December 7, 1956, Prakash Chandra instituted a suit against the appellant ·and his father Ram .· Cbaran for a declaration that the preliminary and .final decree for forecJosure in favour of the former were not binding on.him and for a perpetual injunction restraining the appellant from taking possession of the bouse in exetution of the aforesaid decree. The · suit was dismissed on NoYernber 25, 1958. He filed an appeal and obtained an order staying execution of the decree on December 31, 1958. The appeal court partly allowed his appeal on October 21, 1959. It was held that he was the owner of a half share in the house by virtue of the gift deed from Sava in his favour. So the appeal rourt issued an injunction restraining the appellant from executing his decree with respect to a half share in the howe. The appellant filed a second appeal in the H1p Court of Madhya Pradesh against the judgment of the appeal court. Prakash Chandra also filed a cross-objection in respect of his claim for. the remaining half share in the house. Both the appeal and the cross-objection· were dismissed by the High Court on JanWlry I, 1962 . A B c D Turning back to the fourth execution application filed by the · appellant, it was· dismissed on June 23, 1Q56. The fifth execution E application was filed by the appellant on July 29, 1964 for possession ' over half of the house. The respondent objected to this applica· / tion on the ground of limitation. The objection was disallowed by the execution court as ·well as by the appeal court. It was. however, upheld by the High Court of Madhya Pradesh. So the application was dismissed as time-barred. Hence this 'appeal. The sole argument of the appellant in the High Court was that s. l.S Limitation Act, 1908 (hereinafter,called the Act) saved limitation. The High Court rejected this argument. The order of the appeal court staying execution of the decree remained in force only for a .,.,_ limited p~riod between January. 31, 1958 and October 21, 1959. That time should be excluded in computing limitation under a. 15 · • but that alone would not have limitation.· · ' Before us, counsel for the app.!llant ha~ not placed reliance on s. 15 to save limitation. His arguments now are : · · • . ' 1. Limitation is saved by clauses l, 2 and 4 of Ait. 182; 2. Limitation is saved by cl. 5 of Art. 182; 3. ·· The fifth application for exe~ution was really an application to rev1ve . the fourth execl!tJOn proceeding and therefore, it was not time-barred •. F G H c D [ F c ,, l'REM RAJ V, RAM CHARAN (Dwivedi, J.) -497 We shall consider these arguments in seriatim. But b r. we do so, .it is necessary to read the relevant provisions of Art.e 1pg. . "For the execution of a decree of Three any civil court· • • • years ' l. The date of the deere~ ·············· 2. (where there ha.s been an appc-.11) the date of the final decree •. ...... of the appellate Court •• 0 ••• 0 ••••• 0 ••• 4. (where the decree b;u been amended) the date of amendment, or . 5. (where the application next hereinafter mentiOileuse. But it could never have any effect ~Jgainst Prakash Chandra's p~fmaount title to a half share in the house. Prakash Chlndra obtained his decree in a collateral suit. Tht app~lbint's second app~al against the decree of the appeal court in favour of Prakash Chandra was not directed against the foreclosure decree now in execution, nor would it, as shown earlier, effect the decree in any manner. in relation ·to the tespondent-judgnent d!btor. So his app~al and the High Court decree p1ssed in his appeal would not fall within cl. 2 and 4of Art. 182 and would not furnish a fresh startins pint of limitation for executing the foreclosure decree aeainst theresp:>ndent-judgment debtor. (See Bhawanipore Banking Corporation Ltc/. v. Gorl Shanker Sharma(l). The appellant has relied on Mohammad Jabir and others v. Narain Prasad Daruka and others (2) and Janab Mohammad Ismail v. Tothna liM Amra/ and others. (3) ~n-these two cases the decree sought to be executed itself was amended. So clause 4 of Art. 182 was directly applicable. Regarding argument No. 2 : In order to get the advantage of cl. 5 of Art. 182, the app~llant has to satisfy three conditions : (a) Th~ written statement filed by him in Prakash Chandra's suit, his resistall'C: to the first app~al of Prakash Chandra and his second appeal in the High Court are an "application." (b) The court in which Prakash Chandra's suit and first appaal were instituted and the High Court wherein the appellant's second appaal was filed are, the "proper court". (e) Th~ proceeding~ sp~ified in (a) are a step in aid of execution of the decree sought to be e)(ecuted by the appellant. An app!ication is "the making of an appeal, requ~st, o~ ~etition to a p~rson; the request so made.'' (Shorter Oxford Enghsh Dtchonary, 1955 Edn. 86) Thus the making of a request to a person is of the essence of an application. In some cases it has accordingly been held that 'the pl~nt is an 'application' within the meaning of that word incl. 5 Art. 182. (See Rudra Narain v. Maharaja of Kapurtha/a.(4) The Bom,bay, Calcutta and Madras High Courts have, however, held to the contrary. (See Raghunandan Prasad v. Bhaggoolai.(S) It is unnecessary to resolve this conflict of opinion between the High Courts in this appeal. To oppose Praka~h Chandra's suit, the appel~ lllllt had filed a written statement . So we are directly concerned with the question wh·~ther a written statement is an 'application' within . (1) [19SO] S.C.R. 2S at p. 29. (2) A.I.R. 1960 Patna 126. (3) I.L.R. [1965] 1 Madras 176. (4) AJ.R. 1936 Awadh 248. (S) l.LR. 17 Cal. 268. A B c D E F G H i / A B c D E F G H PREM RAJ V, RAM CHARAN (Dwivedi, ./,) 499> the meaning of cl. 5 of Art. 182. According to Order VII r. 1 Civir ·' Procedure Code the plaint should specify the relief which the plaintiff claims. So it may be plausiBly argued that the plaint, which· makes a request to the court,- is an "application". But unlike the plaint, the written statement ordinarily does not inc1ude any request to the court. It is simply a defence to the plaintiff's claim. OrderVIII Code of Civil Procedure deals with matters which ought to be· included in a written statement. Rule 6 thereof enables the defendant to make a claim for set-off. To the extent the written statement includes the claim for set-off, it may be treated as a plaint. It is perhaps arguable that a written statement filed in an interpleader suit may also be treated as a plaint. But we express no opinion on this as~t. Leaving aside rule 6 and the interpleader suit, there is nothing in Orders VI and VIII, Code of Civil Procedure to show that a written statement could legally include any request to the court. We are aware of the general practice in the Mufassil of including in the written statement of prayer that the suit should be dismissed with: c.osts. But this prilyer is supererogatory and would not convert a written statement Simpliciter into an 'application' within the meaning of cl. 5 of Art. 182. In Panna La/ v. Smt. Saraswati Deri (1), the judgment· d·~btor made an application under Order XXI, r. 2 Code of Civil Procedure to the execution court alleging payment to the decreeholder outside the court. ·The decreeholder filed a written objection denying payment. The application was ordered to be dismissed. The appeal from the order met the same fate. The High Court held that the time for filing the execution application ran from the date of the appellate order. The High Court said : "(It was) of the opinion that the words" •:to take some step in aid of execution of the decree" .... should be Interpreted' liberally ln favour of the decreeholder. If he has taken any step which would remove as an obstacle to the further cxccut i::.n of the decree, he would be entitled to 'the benefit of the provision. In the present case the decreeholder took steps to set aside the objection which. w:;ts an hindrance against execution and was therefore a step-in-aid of execution." Plainly, the High Comt has assumed without any discussion that the written objection of the decreeho!der to the application .of ~he ju~g~tent-debtor under Order XXI, r. 2 C. P. C. was an apphcatlon w!thtn the meaning of cl. 5 of Art. J 82 and has then procee~ed to dectde w~e~her the said objection was a step-in-aid of execu~lOn. I~ o,ur optmon, the assumption was wrongly made. The wntten ObJeCtton of the decreeholder could not be regarded as an 'ap~l!cati.on' . The Punjab High Court has followed the Allahabad dectslOn m ~artar Singh v. Sultan Singh Partap Singh (2). Like the Allahabad H1gh Court, the Punjab High Court also has erroneously assu~ned. that the. written objection tiled by the decreeholder to the app~Ic.atro!l of the JU~gment-debtor for reopening the case and for settmg asrde the decree was an application. (J) A.l.R. 1960 All. 572. (2) A.I.R. 1967 Punjab 375. .soo SUP.KEME COURT REPORTS [l974J 3 S.C.R. Counsel for the appellant has strenuously attempted to pursuade us to give a liberal construction to the word ,'application' i~ ct. ~ of Art. 182. We do not think that the rule of hberal construction gtves a free hand to the Court to stretch and strain the statutory laniuage to accord with our abstract notions of justic~ and fair play. In ~ur view. if the statutory language is. susceptible of two constructions, the rule of liberal construction should incline the Court to prefer the one which accomplishes the legislative purpose. ~ut where the statutory language will b!ar one and only one mean~ng, there is no room for the application of the rule of liberal construction. Howsoever liberally one may construe the word 'application', it is not possible to regard the written statement of the appellant in Prakash Chandra's suit as an 'application•, for it made no r~quest to the oourt. Just as the written statement of the appellant cannot be regarded as an 'application', so also the resistance to the appeal filed by Prakash Chandra cannot be held to be an 'application'. Counsel for ~e . ~ppellant, however, submits that the appellant'~ ~econd appeal in the High Court would be an 'application'. In V.E.A.. AnnamaJai Chettlar v. Valliammai Achi(1) the Privy Council has held that an appeal filed by the decrceholder is an ·•application'. It may be a~~umed that the appellant's second appeal in the High Court is an 'application' within the meaning of cl. 5 -of Art. 182. But this does not conclude the matter in favour of the appellant. He has to show that the High Court is the "proper court". '"Proper Court" is defined in Explanation IT to Art. 182, as "the court wbo~e duty it is to execute the decree." Ordinarily, the High Court will not b~ the ''proper court" as so defined, because it is normally not the duty of the High Court to execute a decree. According to s.38 Civil Procedure Code a decree may be executed "either by tile court which passed it or by the court to which it is sent for execution, So "the proper court" would be the court which passed the foreclosure decree in favour of the appellant. The appellant can derive no as!i9tance from Annamaloi(supra). 'In that case the decreeholder had made an application for execution of his decree in the proper court. 1be judgment-debtor filed an objection. It was allowed. Then tbe -decreeholder filed an appeal in the High Court. The appeal w.s