1980 PLP 1146 (CLC)

(d) Civil Procedure Code (V of 1908)

S. 48-Limitation-Execution of decree

Right to-Vested right of decree-holder, like right to sue-Alteration in period of limitation for execution, held, cannot be considered as, mere matter of proce dure.-[Decree-Limitation]. Mansoorul Arfin for Appellant. Date of hearing : 14th January, 1980. The appellant filed against the respondents a suit bearing No. 34 of 1965 which was decreed in favour of the appellant for Rs. 4,228.93 on 2nd October, 1965 with costs and interest. Execution Application No. 111 of 1973 for execution of the aforesaid decree filed on 23rd December 1972 was dismissed by the impugned order dated 20th November 1973 by the learned District Judge, Hyderabad as, time barred. This Miscellaneous Appeal is directed against the aforesaid order.

2. There are no reasons assigned in the impugned order as to how the execution application is barred by limitation, but it seems that the learned Judge had in mind the amendment effected by the Law Reforms, Ordinance (XII of 1972) whereby section 48 of the Code of Civil Procedure was amended see as to reduce the outer limit of time for execution of a decree upon any fresh application from 12 years to 6 years. The learned counsel for the appellant has pointed out that the first application for execution was filed by the appellant on 23rd May 1966 and was disposed of by order dated 15th February 1967 for non-prosecution. The second execution application was filed on 23rd May 1968 which was also dismiss ed for non-prosecution on 21st November, 1968. The third execution application way submitted on 27th August 1969 and was disposed of by order dated 10th January 1970. The fourth execution application was filed on 29th May 1970 and was disposed of by order dated 27th July 1970. The fifth and the last execution application as already stated, was filed on 23rd December 1972 and was dismissed by the impugned order.

3. It is conceded at the bar that the six years period from the date of decree expired on 2nd October 1971 and if the amended law is applied the execution application was clearly time barred. However, Mr. Mansoorul Arfin, learned counsel for the appellant contended that the execution appli cation in question will be governed by the unamended provisions of section 48, C. P. C. so far as the question of limitation is concerned. In other words, the submission was that the Law Reforms Ordinance, 1972 will have no retrospective operation so as to affect, impair or in any way take away the vested right to remedy as to the execution of the decree in question passed prior to the promulgation of the said Ordinance. Thus the short question for determination in this appeal is whether the outer limit of time pres cribed by the amended provisions of section 48 would govern the execution application in question or the said application will continue to be governed by the limitation prescribed period to the amendment introduced by the Law Reforms Ordinance. As held in Bank of India v. Mohamed Ashraf (P L D 1965 Kar. 69) it is welt established that the period of limitation is ordinarily a matter of procedure only and that when a question of limitation is raised it ought to be decided in accordance with the law of limitation in force at the time of institution of proceedings and not the one in force tit the time of cause of action, unless there be any express provision to the contrary in the Act itself, It was also held in the cited case that an enactment dealing with procedure as a general rule is retrospective in its operation anti governs all proceedings from the moment of its enactment even though the cause of action might have accrued before the Act came in existence. However, there is an exception to this rule which is that retrospective operation will not be given to such an enactment if its provisions touch or take away ally existing or vested right. There is a long line of authorities holding the view that a statute cannot be given retrospective effect, if it interferes with, or impairs or imperils a vested right unless such intention be clearly mani fested by express words or necessary implication. It was urged by Mr. Arfin that there is nothing in the Law Reforms Ordinance which has the effect to its enforcement and, therefore, consistent with the principles enunciated above the right to remedy by execution of the decree existing on the date of promulgation of the Ordinance cannot be taken away by the amendment. Reliance was placed on Pakistan v. Devachand Muljimal (P L D 1968 Kar. 107) where it was held that an amendment in a procedural law is retrospective, but if it deals with or affects not only procedure but also vested rights, then it will be construed as prospective" It was further held that if the law of limitation is amended so as to interfere with or impair vested rights it would be prospective and the right to sue is not a procedural matter. The argu ment of Mr. Arfin is that the right to execute a decree is similarly not a mere matter of procedure.

4. I find considerable force in the submission of the learned counsel, the question in this case is not of a change in a procedural law affecting the adjudication of a cause of action. The appellant had already invoked the jurisdiction of the Court and obtained adjudication upon the cause of action that accrued to him culminating in 'a decree in his favour. The abridgement of the outer limit of time abruptly by the aforesaid amend ment, therefore, affected a vested right to execute the decree passed in favour of the appellant. Consequently, in absence of contrary intendment, the amending law cannot be given retrospective effect.

5. Counsel also referred to another principle of interpretation as to the retrospectively of a statute of limitation having the effect of curtailing the existing period of limitation. It was urged that the general principle that all enactments affecting procedural law are retrospective in operation is subject to an exception, that where the amending Act shortens the period of limitation provided by the existing law the Act is to be construed as prospective except where Act is suspended in its operation for some time from its being passed as a law. This principle may be summarized as laying down that where an amending enactment has the effect of curtailing the existing period of limitation for institution of legal proceedings, the fact that such amending law takes effect immediately on its promulgation will be a ground of to give retrospective effect to it so as to wipe out the cause of action accepting prior to its enforcement so that the affected party is left with no remedy at law. But if there is an interval of time between the passing of the Act and the date upon which it comes into force, then the general rule ill continue to apply and the statute will be construed as retrospective in operation. This principle of interpretation of statutes has been considered at great length in Shaikh Reyasat v. Gop Nath Missir (A I R 1939 Pat. 122) where the learned Judges observed "that this distinction has long been recognized in England and there appears to be no difference between the English Law and the Indian Law upon this point". The reason behind the runs may best be stated in the words of Lord Campbell, C. J. in Queen v. Leeds & Bradeford Ry. Co. ((1852) 21 L J M C 193) ; "If the (amending) 'Act had come into operation immediately after the time of its being passed, the hardship would have been so great that we might have inferred an intention on the part of the Legislature not to give it retrospective operation ; but when we see that it contains a provision suspending for six weeks, that must be taken as an intimation that the Legislature has provided that as the period of time within which proceedings respecting antecedent damages car injuries might be taken before the proper tribunal." This view was considered in District School Board v. Muhammad Mulla (A I R 1947 Bom. 377 ) in which the case law was extensively reviewed and Chagla, J. observed; "Considering these authorities, it is clear that as a rule statutes of limitation being procedural laws must be given a retrospective effect in the sense that they must be applied to all suits filed after they came into force. This general rule has got to be read with one important qualification, and that is that if the statute of limitation, if given a retrospective effect, destroys a cause of action which was vested in a party or makes it impossible for that party for the exercise of his vested right of action then the Courts would not give re trospective effect to the statute of limitation. The reason for this qualification is that it would inflict such hardship and such injustice on parties that the Courts would hesitate to attribute to the Legis lature are intention to do something which was obviously, wrong."

6. The statute under examination in the present case, `namely, the Law Reforms Ordinance, 1972 was given immediate effect with the result that decrees which were older than six years, but under the existing law could still be executed until the expiry of 12' years from the date of decree, would be suddenly barred by limitation by virtue of amendment effected in section 48 of the Code of Civil Procedure. Consequently, if effect is given to the amendment the right to remedy in respect of such decrees which were passed before the date of the Ordinance will be totally destroyed. Like the right of action by suit the right to execute a decree is a vested right accrued in favour of the decree-holder and, therefore, an alteration in the period of limitation for execution of such decrees cannot be held to be a mere matter of procedure. As already pointed out the decree in the present case was passed on 2nd October, 1965 and could, there fore, be executed until 2nd October 1977 under the existing law. The amending statute cannot, therefore, be given retrospective effect and as such this case will be governed by the provisions of section 48, C. P. C. as they stood prior to the amendment. The application for execution was, there fore, well within time and ought not to have been dismissed as barred by limitation.

7. In the result, this appeal is allowed and the order dismissing the execution application is hereby set aside. The case shall bra remanded to the executing Court for disposal according to law Since the respondents have not come up to contest this appeal, there wilt be to order as to costs. K. M. A. Appeal allowed.