P L D 1952 Dacca 297 (PLP)

SHAHABUDDIN, C. J.

‑This reference, dated the 13th JU13 1945, stands transferred to this Court under the Bengal High Courts Order, 1947, as the Court of origin is the 3rd Subordinate Judge s Court, Chittagong. The material facts are these. In Rent Suit No. 1 of 1935 in the Court of the 2nd Additional Subordinate Judge at Chittagong, one Mohim Chandra Guha obtained a decree against the appellant and others. On appeal this decree was varied in that the appellant was made liable only for a portion of a claim, and costs were awarded to him in respect of the rest of the claim, for which the decree was confirmed against other defendants, the present respondents. Mohim assigned this decree to his son who applied for execution in the Court of the 3rd Subordinate judge at Chittagong against both sets of judgment‑debtors, i.e., the present appellant and the other defendants in Rent Suit No. 1 of 1935. The present appellant's case that what was due to him from Mohim was more than what he had to pay Mohim was accepted and the execution case was dismissed on full satisfaction as far as the appellant was concerned, while against the respondent it was dismissed for default on the 29th April 1939. Mohim had brought another Rent Suit against the present appellant, which was dismissed on the 10th August 1938, with costs. This decree for costs was put into execution in the Court of the 1st Sub ordinate Judge of Chittagong and on the 8th July 1941, in Rent Execution Case No. 94 of 1941 the appellant obtained an order attaching the decree against the respondents obtained by Mohim in Rent Suit No. 1 of 1935. Then, on the 25th May 1942, the appellant filed in the 3rd Court of Subordinate Judge, Chittagong, the application under appeal for the execution of the attached decree. One of the contentions of the respondents in that petition was that the execution application was time‑barred as it was filed on the 25th May 1942, while the final order on the previous application for execution of the same decree was passed on the 29th April 1939. This objection was upheld by the Courts below and the execution application was dismissed. In the second appeal in the High Court of Calcutta, the follow ing contentions were raised on behalf of the appellant to meet the plea of limitation. (1) The Rent Execution Case No. 94 of 1941, in which the decree in question was attached, was stayed in view of the notice from the. Debt Settlement Board issued on the 14th July 1941, under section 34 of the Bengal Agricultural Debtors Act and as that notice was not withdrawn till‑ the 24th November 1941, the appellant was entitled to a deduction of that period under section 52 of that Act. (2) Attachment of the decree in Rent Suit No. 1 of 1935 under Order XXI, Rule 53, Civil Procedure Code, operated as a stay of execution of the decree under orders of the Court within the meaning of section 15 of the Indian imitation Act. The learned Judges before whom the appeal cam for hearing, overruled the first contention. As regards the second point also they were of opinion that there was no force in it. They agreed with the decision in Chandbasappa Nagapa Haveri v. Holibasappa Basappa Motibennur I L R 48 Bom. 485, followed in the case of Saroj Ranjan Sinha and others v. Joy Durga Dassi 58 C L J 150, that as the attachment under Order XXI, Rule 53 of the Code of Civil Procedure does not prevent the execution of the attached decree, section 15 of the Limitation Act does pot apply to such a case. But, as in the Bench decisions of the Calcutta High Court in Kironshashi Devi v. Chandrika Prosad Singh 30 I A 587, and Charu Chandra Majumdar v. Fanindra Narayan Choudhury A I R 1923 Cal. 310, the opposite view was taken, the learned judges considered that it was proper that the law on this point should be settled by a Full Bench. They, therefore, referred the following question : Where a decree of one Court is attached by another under Order XXI, Rule 53, (1) (b) of the Code of Civil Procedure, does the attachment operate as a stay of execution of the decree by injunction or by order of the Court within the meaning of section 15 of the Indian Limitation Act so as to entitle the party seeking execution of the decree to a deduc tion, for purposes of limitation, of the period during which the decree remained under attachment ? As this question arose in a second appeal, they referred the whole case, for disposal. In my opinion the view taken by the learned referring judges is correct. Section 15 of the Limitation Act excludes the time during which proceedings are suspended. It says that "in computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the date on which it was issued or made and the date on which it was withdrawn, shall be excluded". Under Order XXI, Rule 53, attachment shall be made, if the decree sought to be attached was passed by another Court, "by the issue to such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other Court to stay the execution of its decree unless and until the Court which passed the decree sought to be executed cancels the notice, or the holder of the decree sought to be executed or his judgment debtor applies to the Court receiving such notice to execute its own decree". Under sub‑rule (2) of Rule 53 when an application under sub‑head (ii) of clause (b) of sub‑rule (1) is received, the Court shall proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed. In the present case, the attach ment order was sent to the 2nd Subordinate Judge of Chittagong who had passed the attached decree, while the decree, in the execution of which the attachment took place was passed by the Court of the 1st Subordinate Judge of Chittagong. It is clear from the above provisions that there was no bar to either the petitioner, the appellant, or his judg ment‑debtor, Mohim, the holder of the attached decree, applying for its execution. In the circumstances, it cannot be said that section 15, which I think refers to an absolute stay, applies to this case: This aspect, of the matter was not considered in Kironshashi Devi v. Chandrika Prosad Singh (supra). There, after a reference to Rule 53 (1) (b) which says that the notice is to issue to the Court to stay the execution unless and until that notice is cancelled, or the holder of the decree or his judgment‑debtor applies to the Court receiving such notice to execute its own decree, it was observed that the effect of that attachment would be to stay the execution of this decree unless and until these events happened. The fact that Rule 53 doe; not prevent either the attaching decree‑holder or the holder of the decree attached, from executing it, does not appear to have been considered by the learned Judges. In A I R 1923 Cal. 310 (supra) the question was not discussed but it was assumed that the period during which attachment subsisted should be deducted These two decisions cannot, there fore, be taken as laying down the law correctly. On the other hand in I L R 48 Born. 485 (supra) the question was fully discussed. It was held that stay of execu tion referred to in Rule 53 was only a limited one, while section 15 of the Limitation Act applied to an absolute stay. It was also observed there that, "From another point of view this must be the necessary result of the proceedings under, Order XXI, Rule 53 (1) (b). Otherwise, the proceedings between the original decree‑holder and the judgment‑creditor might continue over an unlimited space of time to the great disadvantage of the original judgment‑debtor, who might be faced with proceedings in execution many years after the decree had been passed without any intermediate steps being taken in aid of execution." This decision was followed by the Calcutta High Court in Saroj Ranjan Sinha and others v. Joy Durga Dassi (supra). In Adhar Chandra Das v. Lal Mohun Das I L R 24 Cal. 778 with reference to the corresponding provisions applicable to such cases under section 273 of the Code of 1882 without the words, "or his judgment‑debtor", which were subsequently introduced in Order XXI, Rule 55 (b) (ii), Sir Francis Maclean Chief Justice of the Calcutta High Court, had observed :] " The judgment‑creditor still had an interest in the decree which he had obtained, and the attachment, order did not prevent him from presenting the decree with a view to its execution. Such a step would not be adverse to the rights of his own judgment‑debtor, as it would be for the interests of both, that if possible, the fruits of the decree should be obtained by execution." Referring to this passage, the learned judges in Saroj Ranjan Sinha and others v. Joy Durga Dassi (supra) observed that the introduction of the words "or his judgment‑debtor" in Order XXI, Rule 53 (b) (ii) really recognised the rule of law, which Sir Francis Maclean had laid down. I agree with the decisions in Nagappa Haveri v. Holibasappa Basappa Motibennur (supra) and Saroj Ranjan Sinha and others v. Joy Durga Dassi (supra) ; and I answer the question referred to the Full Bench in the negative. The learned Advocate for the appellant conceded that the above view was correct ; but he pressed the other point, viz., that the appellant was prevented by the stay resulting from the notice under section 34 of the Bengal Agricultural Debtors Act. This is not included in the question referred to the Full Bench, but it has nevertheless to be considered as the entire appeal is before us for disposal. I see no force in this contention. As pointed out by the District Judge in the first appeal, and by the learned judges in their order of reference, the notice under section 34 of the Bengal Agricultural Debtors Act was issued only in respect of the decree of costs against Mohim Chandra Guha, while what we are concerned with in this case is the decree attached, i.e., the decree obtained by Mohim Chandra Guha against the respondents to this appeal. ' There was no stay in respect of the latter decree. I would, therefore, dismiss the appeal with costs. ELLIS, J.‑

I agree with my Lord the Chief Justice. AHMED, J.

‑I agree wish my Lord the Chief Justice. A. H. Appeal dismissed.