# PARBATI DEVI & ORS v. MAHADEO PRASAD TIBREW ALLA

- **Citation:** [1980] 1 S.C.R. 156
- **Court:** Supreme Court of India
- **Decided:** 1979-07-31
- **Bench:** N. L. Untwalia, A. P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/parbati-devi-ors-v-mahadeo-prasad-tibrew-alla-7722
- **Pages:** 5

## Headnote

Limitation Act 1908, Art. 183, Lin1itation Act 1963, Art. 136 & Code of
Ciril Procedure 1908 (V of 1908), S. 48-Money suit based on
n1ortgageConsent decree by Court-Part payments n1ade-Legal representative substituted on death of ;udgn1ent-debtor-Consent
order 011 basis of
settlement
passed by Court-Execution filed-If ti1ne-barred,
In a suit for recovery of n1oney on the basis of
a mortgage, a consent
decree was passed.
When the judgment-debtors failed to pay the a.mount the
mortgaged properties were ordered to be sold.
The decree-holder assigned his
interest under the decree in favour of the respondent and this was
approved
by the Court.
A part-payment was made to the decree-holder.
On the death
of one of the judgment-debtors, his heirs and legal representatives (appellants
in this appeal) were substituted.
On June 17, 1953
a consent
order was
passed by the Court on the basis of the terms of settlement arrived at between
the parties. According to the will left by one of the
judgment-debtors
his
daughter was the universal legatee and his son-in-law \Vas the sole executor ..
When the decree-holder sought ex'ecution of the decree a Single Judge of
the High Court dis1nissed the application on the grounds-( 1) that the terms
of settlement. between the parties recorded on
17th June, 1953 were entirely
different from the original decree and had the effect of superseding
it;
(2)
that the fact of the death of one of the judgment-debtors was
not recorded
and his heirs were not substituted a.nd (3) execution was barred under s. 48
of the CoUe of Civil Procedur.
On appal, a Division Bench
of the
High
Court reversed the order of the Single Judge.
Dismissing the appeal,
HELD : 1. There was no bar of Iimitatiou in the execution in9tituted in
1965.
At no point of time the mortgag'e decree had been fully satisfied.
It
is not a case in which the execution v,ras barred either under s. 48 CPC or
Art.
183 of the Limitation Act, 1908.
Execution was not barred under Art.
136 of the Limitation Act, 1963.
[159D]
2. There is no force in the contentioo that it was already ban'ed v.rhen the
1963 Act came into force.
All through steps had been taken by the decreeholder to enforce the decr'ee.
When the order of sale of the mortgaged properties was passed in 1929 some payment~ \Vere made and finally accounts
were settled in 1934.
Thereafter th'e mode of execution proceeded by
appointment of a. rece'iver.
Some money \Vas paid in 1939. Jn 1945 the heirs
and legal representatives
of on'e ()f the deceased
judgment-debtors were
substituted. Appellant no. 1 was allowed to take steps for the satisfaction of
the decree; but nothing was done.
A settlement was again arrived at in 1953
for satisfaction of th'e decree but on the judgment-debtor's failure to comply
with the terms of the settlement the present proceedings were started well
within 12 years.
[!59E-HJ
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PARBATI DEVI v. MAHADEO PRASAD (Untwalia, !.)
157
3. The daughter of the second judgment-debtor was competent to represent
A
the estate of her father.
Even if her husband who was the sole executor of
the will was not substituted, execution was not defective.
[160B]
The Andhra Bank Ltd. v. R. SriniFasan and Others [1962] 3 S.C.R
391,
referred to .
4. The settlement of 17th Jm1e, 1953 was not an altogether renovation of
B
the old decre'e.
All that woo done was that the amount due was quantified
and the rnocle of satisfactioil was prescribed giving oppOrtunity to the judg~
ment-debtors to satisfy the decree by conveying one of the
two mortgaged
houses.
The judgment-debtors did nothing.
Though the terms of settlement
were silent with regard to what \Vas to happen on failure to satisfy the decree,
it is legitimate to assume that the parties. intended that the decree holders
would be entitled to reailise the dues by execution of the original mortgage
C
decree. The order of 17th June, 1953 passed by the Court had not the effect
of passing a new decree in substitution of the old one.
It had mer

## Text

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156
PARBATI DEVI & ORS.
v.
MAHADEO PRASAD TIBREW ALLA
July 31, 1979
[N. L. UNTWALIA AND A. P. SEN, JJ.]
Limitation Act 1908, Art. 183, Lin1itation Act 1963, Art. 136 & Code of
Ciril Procedure 1908 (V of 1908), S. 48-Money suit based on
n1ortgageConsent decree by Court-Part payments n1ade-Legal representative substituted on death of ;udgn1ent-debtor-Consent
order 011 basis of
settlement
passed by Court-Execution filed-If ti1ne-barred,
In a suit for recovery of n1oney on the basis of
a mortgage, a consent
decree was passed.
When the judgment-debtors failed to pay the a.mount the
mortgaged properties were ordered to be sold.
The decree-holder assigned his
interest under the decree in favour of the respondent and this was
approved
by the Court.
A part-payment was made to the decree-holder.
On the death
of one of the judgment-debtors, his heirs and legal representatives (appellants
in this appeal) were substituted.
On June 17, 1953
a consent
order was
passed by the Court on the basis of the terms of settlement arrived at between
the parties. According to the will left by one of the
judgment-debtors
his
daughter was the universal legatee and his son-in-law \Vas the sole executor ..
When the decree-holder sought ex'ecution of the decree a Single Judge of
the High Court dis1nissed the application on the grounds-( 1) that the terms
of settlement. between the parties recorded on
17th June, 1953 were entirely
different from the original decree and had the effect of superseding
it;
(2)
that the fact of the death of one of the judgment-debtors was
not recorded
and his heirs were not substituted a.nd (3) execution was barred under s. 48
of the CoUe of Civil Procedur.
On appal, a Division Bench
of the
High
Court reversed the order of the Single Judge.
Dismissing the appeal,
HELD : 1. There was no bar of Iimitatiou in the execution in9tituted in
1965.
At no point of time the mortgag'e decree had been fully satisfied.
It
is not a case in which the execution v,ras barred either under s. 48 CPC or
Art.
183 of the Limitation Act, 1908.
Execution was not barred under Art.
136 of the Limitation Act, 1963.
[159D]
2. There is no force in the contentioo that it was already ban'ed v.rhen the
1963 Act came into force.
All through steps had been taken by the decreeholder to enforce the decr'ee.
When the order of sale of the mortgaged properties was passed in 1929 some payment~ \Vere made and finally accounts
were settled in 1934.
Thereafter th'e mode of execution proceeded by
appointment of a. rece'iver.
Some money \Vas paid in 1939. Jn 1945 the heirs
and legal representatives
of on'e ()f the deceased
judgment-debtors were
substituted. Appellant no. 1 was allowed to take steps for the satisfaction of
the decree; but nothing was done.
A settlement was again arrived at in 1953
for satisfaction of th'e decree but on the judgment-debtor's failure to comply
with the terms of the settlement the present proceedings were started well
within 12 years.
[!59E-HJ
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PARBATI DEVI v. MAHADEO PRASAD (Untwalia, !.)
157
3. The daughter of the second judgment-debtor was competent to represent
A
the estate of her father.
Even if her husband who was the sole executor of
the will was not substituted, execution was not defective.
[160B]
The Andhra Bank Ltd. v. R. SriniFasan and Others [1962] 3 S.C.R
391,
referred to .
4. The settlement of 17th Jm1e, 1953 was not an altogether renovation of
B
the old decre'e.
All that woo done was that the amount due was quantified
and the rnocle of satisfactioil was prescribed giving oppOrtunity to the judg~
ment-debtors to satisfy the decree by conveying one of the
two mortgaged
houses.
The judgment-debtors did nothing.
Though the terms of settlement
were silent with regard to what \Vas to happen on failure to satisfy the decree,
it is legitimate to assume that the parties. intended that the decree holders
would be entitled to reailise the dues by execution of the original mortgage
C
decree. The order of 17th June, 1953 passed by the Court had not the effect
of passing a new decree in substitution of the old one.
It had merely the
effect of giving facility to the judgment debtors for
the satisfaction of
the·
decretal du'es.
On their failure to do so they were liable to be proceeded with
in execution of the original n1ortgage decree.
{l60C-F1
CIVIL APPELLATE JURISDICTION : Civil
Appeal No .. 2494
of
D
1969.
From the Judgment and Decree dated 24-1-1969 of the Calcutta
High Court in ApP'<al from Original Order No. 111/66.
D. N. Mukherjee and N. R. Chaudh!1J'y for the Appellants.
P. K. Chatterjee and Sukumar Ghosh for the Respo'ndent.
The Judgment of the Court was delivered by
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UNTWALIA, J. This is an appeal by certificate filed by the judgm<ltlt-debtors from the decision of the Calcutt'a High Court given in
appeal from that of a learned single Judge of that Court. The facts
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of the case clearly demonstrate the fighting attitude of the judgmentdebtors to gain time for the satisfaction of the decree.
On August 15, 1925 one Indera Chand Kejriwal instituted oh the
original side of the Calcutta High Court a suit on the basis of a mortgage against Ram Chander
Saragogi, Sewbux
Saraogi and Tejpal
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Saraogi for recovery of Rs. 38,000/- as principal and Rs. 6,082.8
annas as interest. By an equitable mortgage the property mortgaged consisted of two houses (1) No. 126, Harrison Road and (2)
No. 13/2, Syed SaJ:ey La'ne in the town of Calcutta. On November
26, 1926 a consent decree was passed for a sum of Rs.
41,000/-
together with interest thereon @ 6.3/4% per annum. On failure of
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the judgment-debtors to pay the amount the
mortgaged properties
were to be sold.
On 3rd of January, 1929 it was ordered and
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158
Sl:f'REME COURT REPORTS
[J 980] J S.C R.
decreed that the mortgaged property be sold.
On 16th April, 1934
Jndera Chand Kejriwal by a deed of assignment assigned his interest
in the decree to Mahadeo Prasad Tibrewalla, the respondent in this
appeal.
On the application of the assignee decree-holder an order
was made on the 8th May, 1934 substituting his name in place of the
original decree holder and recording some terms of settlement between
him and the judgment-debtors.
The amount with interest quantified
on that date was Rs. 60,023.12 a·nnas which was to carry an interest
of 6.3 / 4% per annum. Subsequently on an application of the decree
holder one Anandilal Poddar was appoi·nted on the 14th June, 1938
a receiver of rents and profits of the mortgaged properties.
A sum
of Rs. 10,000/- was paid to the decree holder on the 7th September,
1939 towards part satisfaction of the decree.
On the death of Ram
Chander Saraogi, o"ne of the judgment-debtors, by order dated the 7th
August, 1945 Smt. Parbati Devi, Ananta Kumar Saraogi and Suraj
Kumar Saracigi, his heirs and legal representatives, were substituted.
They are appellant Nos. 1 to 3 in this appeal.
No further payment was made to the decree holder and eventually
a consent order was passed by the Court on the 17th June, 1953 on
the basis of the terms of settlement arrived at
between
the parties
which were incorporated in the letter written by the Solicitor of the
judgment-debtors to the Solicitor of the decree holder.
The terms of
settlement are quoted in full in the appellate judgment of the High
Court.
The salient terms of the
settlement may
be stated as
follows:-
(!) That the tom! dues on the date came to Rs. 1,10,000/-.
(2) That Shri Anandilal Poddar, the receiver was
to pay
f
Rs. 35,000/-.
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(3) That a sum of Rs. 40,000/- was to be paid by conveying
premises No. 13/2 Syed Sall•ey Lane to the decree holder,
and,
(4) That a sum of Rs. 35,000/- was to be paid in cash by
raising money by execution of an
another mortgage of
premises No. 126, Harrison Road.
Anandilal Poddar paid the sum of Rs. 35,000/-. But
nothing
further was done by the judgmcnt-d•:obtors pursuant to the settlement
arrived at on the 17th June, 1953.
Sewbux Saraogi, one of the
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judgment-debtors, died leaving a Will in which the universal legatee
was his daughtet Smt. Kapurbai and the sole executor appointed
therein was Motilal Jhunjhunwalla, husband of Kapurbai. On the 7th
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PARBAT! DEVI v. MAHADEO PRASAD (Untwalia, !.)
159
June, 1965 the respond•ont affirmed a tabular statement for executiou
of the decree. A learned single judge of the Calcutta High Court dismissect that applicatioll mainly on the grounds-(1) that the terms of
bargain between the parties recorded on the 17th June,
1953 were
entirely different from the original decree and had the effect of superseding it; the former decree, therefore, was not executable; (2) that
the factum of the death of Sewbux Saraogi was not reco.rded and his
heirs we<e not substituted in the tabular statement. In passing, the,
learned single Judge also expressed the view that the executio'n was
barred under section 48 of the Code of Civil Proc•odure.
On appeal
by tbe decree holder the Appellate Bench has reversed the decision
of the learned single Judge on all the points. Hence this appeal by
the judgment-debtors.
We shall first dispose of the point of limitation.
From the facts
stated above it is abundantly clear that there was no bar of !imitation
i"n the present execution instituted in the year 1965. At no point of
time the mortgage decree had been fully satisfied. All through steps
were being taken and it was not a case where the execution was barred either under section 48 of the Code of Civil Procedure or Article
183 of the Limitation Act 1908. It was conceded and rightly so by
learned counsel for the appclla"nts that the execution was not barred
under Article 136 of the Limitation Act, 1963. But the submission
was thaf it was already barred when that Act came into force on the !St
of January, 1964 under Article 183 of the old Act. We have no difficulty in rejecting the argume·nt of limitation. All through steps had
been taken by the decree-holder. The case was not lying dormant at
any point of time for a peroid of more than 12 years. When in the
year 1929 there was an order for sale of the mortgaged properties it
appears some payments were made and finally accounts were settled
in the year 1934. Thereafter the mode of execution proceeded by
appointment of a receiver. A sum of Rs. 10,000 /- was paid in the
year 1939. In the year 1945 steps were taken for substitution of the
heirs and legal representatives of Ram Chander Saraogi, one of the
deceased judgment-debtors.
Parbati Devi, appellant No. 1, was allowed to take some steps for the satisfactian of th~ decree. But nothing
was done. Eventually a settlement was again arrived at on the 17th
June, 1953 for satisfaction of the decree but on the judgment-debtors'
failure to fulfil the settlement the present proceedings were started by
filing the tabular statement on the 7th of June, 1965 Woll within 12
years of the 17th June, 1953. The point of limitation raised on behalf
of the appellants, therefore, must he rejected.
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Sl:l'REME COURT REPORTS
[1980] 1 s.c.R.
A statement had been made in the tabular statement that Sewbux
Saraogi, one of the jndgment-debtors,
was
dead.
Kapurbai, his
daughter along with others were sought to be substituted in his place.
Later on it transpired that she was a universal legatee under a will
executed by Sewbux Saraogi.
She was, therefore, undoubtedly a legal
representative competent to' represent the estate of Sewbux Saraogi.
Even in absence of the substitution of Motilal Jhunjhunwalla, tlte
sole executor of the will, the execution was not defective.
Reference
in this connection may be made to the decision of this Court in the
case of The Andhra Bank Ltd. v. R. Srinivasan and Olhl'rs,(') a decision relied upon by the Appellate Bench.
Coming to the third and the last point it may be mentioned that
the settlement arrived at on the 17th June, 1953 was not an altogether
renovation of the old decree.
The amount due was quantified and
the mode of satisfaction was prescribed giving liberty to the judgment-debtors to satisfy the decree by conveying one of the two mortgaged houses and by paying a sum of Rs. 35,000/- in cash by raising the money by mortgage of the
other house. The judgmentdebtors did neither.
The tenns of settlement were silent as to what
was to happen on the failure of the judgment-debtors to satisfy the
decree in the manner agreed upon. In such a situation it was quite
legitimate to assume that the parties intended that the decree holders
would be entitled to realise the dues by execution of the
original
mortgag" decree. Reading the terms of settlement in the context' of the
letter of the Solicitor of the Judgment-debtors it is plain to us that the
order dated 17th June, 1953 had not the effect of passing a new de--
cree in substitution of the old one. It had merely the effect of giving
facility to the judgment-debtors for the satisfaction of the decretal
dues. On their failure to do so they were liable to be proceeded with
in execution of the o.riginal mortgage decree.
For the reasons stated above, we hold that there is no substance
in any of the points arising in this appeal.
We accordingly dismiss
thi' appeal with costs.
N.V.K.
Appeal dismissed.
(I) [1962] 3 S.C.R. 391.
•.