Holding

The original mortgage decree remains enforceable; execution is not barred by limitation, the substitution of heirs is valid, and the 1953 settlement did not extinguish the decree.

Summary

In a money suit based on a mortgage, a consent decree was passed and the decree-holder assigned his interest to Mahadeo Prasad Tibrewalla. After part‑payment, one judgment‑debtor died and his heirs were substituted. A 1953 consent order quantified the debt and prescribed satisfaction by conveyance of mortgaged houses, but the debtors failed to comply. The decree‑holder sought execution in 1965, which the single judge dismissed on grounds of limitation, death of a debtor, and alleged supersession of the original decree. The Calcutta High Court reversed that order, and on appeal the court held that execution was not barred by s.48 CPC, Art.183 of the 1908 Limitation Act or Art.136 of the 1963 Act, that the heirs could be substituted, and that the 1953 settlement did not replace the original mortgage decree. Consequently, the appeal was dismissed.

Issues considered

Whether execution of the original mortgage decree is barred by limitation under s.48 CPC, Art.183 Limitation Act 1908 or Art.136 Limitation Act 1963.
Whether the death of a judgment‑debtor and substitution of his heirs/legal representatives affects the validity of execution.
Whether the 17 June 1953 consent order superseded the original decree, rendering it unenforceable.

Legislation cited

Subjects

mortgageexecutionlimitationconsent decreesubstitution of heirssettlementcivil proceduredecree

Judgment

156

A PARBATI DEVI & ORS.
v.
MAHADEO PRASAD TIBREW ALLA
July 31, 1979
..
•
B [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 n1ortgage- •
Consent decree by Court-Part payments n1ade-Legal representative substi-
tuted on death of ;udgn1ent-debtor-Consent order 011 basis of settlement
passed by Court-Execution filed-If ti1ne-barred,
c 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
D 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)
E 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
F
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 decree-
holder to enforce the decr'ee. When the order of sale of the mortgaged pro-
perties was passed in 1929 some payment~ \Vere made and finally accounts •
were settled in 1934. Thereafter th'e mode of execution proceeded by ap-
pointment 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
B 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
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.
E
P. K. Chatterjee and Sukumar Ghosh for the Respo'ndent.
The Judgment of the Court was delivered by
UNTWALIA, J. This is an appeal by certificate filed by the judg-
m<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 F
of the case clearly demonstrate the fighting attitude of the judgment-
debtors 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 mort-
gage against Ram Chander Saragogi, Sewbux Saraogi and Tejpal G
'• Saraogi for recovery of Rs. 38,000/- as principal and Rs. 6,082.8
annas as interest. By an equitable mortgage the property mort-
gaged 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 B
the judgment-debtors to pay the amount the mortgaged properties
were to be sold. On 3rd of January, 1929 it was ordered and
158 Sl:f'REME COURT REPORTS [J 980] J S.C R.

A 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
B 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,
c 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.
D
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
E 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/-.
(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
G 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
H 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
PARBAT! DEVI v. MAHADEO PRASAD (Untwalia, !.) 159

June, 1965 the respond•ont affirmed a tabular statement for executiou A
of the decree. A learned single judge of the Calcutta High Court dis-
missect 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 super-
• seding it; the former decree, therefore, was not executable; (2) that
B
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 c
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
D
were being taken and it was not a case where the execution was bar-
red 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 E
of January, 1964 under Article 183 of the old Act. We have no diffi-
culty 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 F
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
G
•' deceased judgment-debtors. Parbati Devi, appellant No. 1, was allow-
ed 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 H
years of the 17th June, 1953. The point of limitation raised on behalf
of the appellants, therefore, must he rejected.
160 Sl:l'REME COURT REPORTS [1980] 1 s.c.R.

A 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.
8
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 de-
cision relied upon by the Appellate Bench.
c
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 judg-
ment-debtors to satisfy the decree by conveying one of the two mort-
D gaged houses and by paying a sum of Rs. 35,000/- in cash by rais-
ing the money by mortgage of the other house. The judgment-
debtors 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
E 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
F
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.