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Cholappa Gattinna Sanna Vs. Ramchandra Anna Pai - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 1014 of 1916
Judge
Reported in(1919)21BOMLR861
AppellantCholappa Gattinna Sanna
RespondentRamchandra Anna Pai
DispositionAppeal dismissed
Excerpt:
.....on 13th february 1911. the decree-holder applied, on 20th december, 1913, for a transfer of the decree for execution against the sureties (appellants); but the appellants contended that the execution as against them was time-barred as no application for execution was made within three years from the date of the trial court's decree which alone they had undertaken to satisfy :-;negativing the contention, that the application was within time, and that the appellants were liable to be proceeded against in execution under clause 2 of article. 182 of the indian limitation act, 1908. - - the execution of the decree is clearly not time-barred, if the period of limitation begins to run from the final decree of the high court in second appeal. under this article the decree-holder has clearly..........of the district court on the 13th february 1911. the decree-holder applied for a transfer of the decree for execution against the sureties, on the 20th december 1913. the sureties contended that the execution as against them was time-barred as no application for execution was made within three years from the date of the trial court's decree which alone they had undertaken to satisfy. the first court allowed this contention : but in appeal the district court has disallowed it and has ordered the court of first instance to proceed with the application against the sureties according to law.2. in the appeal before us the same contention has been raised on behalf of the sureties: i am of opinion that the view taken by the district court is right. it is clear from section 145 of the code of.....
Judgment:

Shah, J.

1. In this case an ex parte decree was originally passed against defendant No. 1 in Suit No. 342 of 1901; but that ex parte decree was set aside and the suit was ordered to be retried on the defendant No. 1 furnishing security. Two persons, who are now represented by the present appellants, stood sureties for the amount that the Court, in which the suit was filed, i. e. the Sirsi Court, might find the defendant liable for. Ultimately a decree was passed by the Sirsi Court against the defendant No. 1 on the 22nd March 1907 for a certain amount. The defendant appealed to the District Court, which, subject to some variation, with which we arc not now concerned, confirmed the decree of the trial Court on the 15th April 1908. In second appeal this Court confirmed the decree of the District Court on the 13th February 1911. The decree-holder applied for a transfer of the decree for execution against the sureties, on the 20th December 1913. The sureties contended that the execution as against them was time-barred as no application for execution was made within three years from the date of the trial Court's decree which alone they had undertaken to satisfy. The first Court allowed this contention : but in appeal the District Court has disallowed it and has ordered the Court of first instance to proceed with the application against the sureties according to law.

2. In the appeal before us the same contention has been raised on behalf of the sureties: I am of opinion that the view taken by the District Court is right. It is clear from Section 145 of the Code of Civil Procedure that the decree-holder has a right to execute the decree against a surety to the extent to which he has rendered himself personally liable in the manner provided for the execution of decrees. The Article which governs the applications for execution is Article 182 of the first schedule of the Indian Limitation Act. The Article prescribes three years' limitation from the date of the decree or where there has been an appeal from the date of the final decree of the appellate Court. The execution of the decree is clearly not time-barred, if the period of limitation begins to run from the final decree of the High Court in Second Appeal. Under this Article the decree-holder has clearly a right to proceed against the sureties within the time allowed Under Clause 2 in the third column.

3. It is contended, however, that the sureties undertook to satisfy the decree of the Sirsi Court, that they have nothing to do with the appeal preferred by the defendant, to which they were not parties and that the application is governed by Clause 1 and not Clause 2. I do not think that this contention is sound. For instance, if the defendant's appeal had succeeded, the sureties would have taken the benefit of the appellate Court's decree in favour of the defendant. It cannot be said that when they stood sureties for the defendant in the trial Court they could not have contemplated the possibility of an appeal which would be an ordinary incident of the litigation which was re-opened with their assistance at the instance of defendant No. 1, and which would have the effect of extending the time from which the limitation would begin to run according to the Indian Limitation Act. The fact that the sureties would not be parties to the appeal could not make any difference.

4. Mr. Coyaji has relied upon the decision in Narayan v. Timmaya I.L.R.(1906) 31 Bom. 50; 8 Bom. L.R. 807; but that decision is based upon the consideration of the explanation applicable to Clause 5 in the third column, It has nothing to do with the point arising in this case. I do not think that that case lends any support to the contention that in determining the date from which the prescribed period of limitation under Article. 182 should run in the present case, clause No. 1 only should be considered and that Clause 2 can have no application, as the sureties were not parties to the appellate Court's decree. I would dismiss the appeal and confirm the decree of the lower appellate Court with costs.

Hayward, J.

5. I concur. The applicants became sureties for the execution against defendants of the decree of the original Court. Their liability would be enforceable to the extent to which they have rendered themselves personally liable in the manner provided for the execution of decrees under Section 145 of the Civil Procedure Code. They were therefore liable to be proceeded against within the ordinary period prescribed by limitation for the execution of such decrees. That period has been prescribed by Article. 182 of the first schedule to the Limitation Act. They have claimed to be governed by the first clause of that Article and they have contended that execution has become time-barred against them as more than three years have elapsed since the date of the decree of the original Court. They have contended that the second clause applies only to parties who have appealed, and that it is only in the case of parties who have appealed that execution can be brought within three years of the date of the final decree of the appellate Court. It seems to me that their contention is unsound and contrary to the plain and wide words of the clause, and that view was held in the similar case of defendants who had not appealed in Shivram v. Sakharam I.L.R. (1908) Horn. 39; 10 Bom. L.R. 939. It seems to me, therefore, that the execution was not time-barred and that the appellants were liable to be proceeded against in execution under Clause 2 of Article 182 of the first schedule of the Indian Limitation Act. I am of opinion, therefore, that the appeal must be dismissed with costs.


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