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Y. Chandrashekara Hegde Vs. Omayya Shetty - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberEx. Second Appeal No. 56 of 1975
Judge
Reported inAIR1978Kant29; ILR1977KAR969; 1977(1)KarLJ423
ActsIndian Limitation Act, 1908 - Schedule - Article 182 and 182(2); Limitation Act, 1963 - Schedule - Article 136; Code of Civil Procedure (CPC), 1908 - Sections 48 and 115 - Order 9, Rule 13 - Order 41, Rule 23 - Order 43, Rule 1; States Reorganisation Act
AppellantY. Chandrashekara Hegde
RespondentOmayya Shetty
Appellant AdvocateM. Gopalakrishna Shetty, Adv.
Respondent AdvocatePadubidri Raghavendra Rao, Adv.
Excerpt:
.....their lordships think, the only safe guide. devanandan prasad (air 1928 pat 581) :there can be no doubt that the appeal to the high court from the preliminary decree had it been successful would have had the effect of discharging the final decree passed by the trial court as well as the preliminary decree. 9. that the expression 'appeal' in article 182 (2) would include within its scope an appeal like m......redemption was passed on 7-12-1950. thereafter, muddu shetty filed r. i. a. 508/1953 for passing a final decree after complying with the conditions imposed on him by the preliminary decree. that application was dismissed by the order dated 31-3-1954 by the trial court. muddu shetty filed an appeal against that order in a. s. no. 250/1954 on the file of the district judge, mangalore. the learned district judge set aside the order of the trial court dismissing the application for the passing of the final decree and remanded the case to the trial court by his judgment dated 24-2-1955. against the order of remand, an appeal was filed by the judgment-debtor before the high court of madras. on the reorganization of the states, the said appeal was transferred to the file of this court under the.....
Judgment:

1. This second appeal arises out of the Execution Petition No. REP. 387/1960 on the file of the Principal Munsiff, Udupi. The decree-holder was one Muddu Shetty. He instituted the Suit O. S. No. 214/1949 against the judgment-debtor for redemption of a usufructuary mortgage created under the mortgage deed dated 14-6-1935. A preliminary decree for redemption was passed on 7-12-1950. Thereafter, Muddu Shetty filed R. I. A. 508/1953 for passing a final decree after complying with the conditions imposed on him by the preliminary decree. That application was dismissed by the order dated 31-3-1954 by the trial Court. Muddu Shetty filed an appeal against that order in A. S. No. 250/1954 on the file of the District Judge, Mangalore. The learned District Judge set aside the order of the trial Court dismissing the application for the passing of the final decree and remanded the case to the trial Court by his judgment dated 24-2-1955. Against the order of remand, an appeal was filed by the judgment-debtor before the High Court of Madras. On the reorganization of the States, the said appeal was transferred to the file of this Court under the provisions of the States Reorganisation Act. On transfer, it was numbered as M. A. (M) No. 9/1956 on the file of this Court and it was dismissed by the judgment dated 31-8-1959. Since no order of stay was obtained from the High Court, the trial Court proceeded to dispose of the case in accordance with the order of remand passed by the District Judge. It passed a final decree on 18-4-1955. No appeal was filed against the said final decree. After the appeal M. A. (M) No. 9/1956 was disposed of by this Court on 31-8-1959, the decree-holder filed the execution petition out of which this appeal arises, on 13-7-1960, within one year from the date of disposal of the appeal, and beyond three years from the date on which the final decree was passed by the trial Court pursuant to the order of remand. Several objections were taken by the judgment-debtor and one of them related to the question of limitation. During the pendency of the execution petition, the decree-holder died and his son was brought on record as supplemental decree-holder. The executing Court overruled the objections raised by the judgment-debtor and directed the execution to proceed by its order dated 13-12-1972. It, however, ordered that the decree-holder could claim mesne profits only for a period of three years. Aggrieved by the order of the executing Court, the judgment-debtor filed Execution Appeal No. 1/1975 on the file of the Civil Judge, Udipi, and the legal representative of the decree-holder filed cross-objections. The learned Civil Judge allowed the appeal and dismissed the execution petition holding that it was barred by time. He, however, held that the finding of the executing Court that the decree-holder could claim, if the execution petition was in time, mesne profits only for a period of three years, was erroneous and that the decree-holder was entitled to claim mesne profits in respect of the mortgaged properties till the date of delivery of possession. Aggrieved by the judgment of the learned Civil Judge, Udipi, the legal representative of the original decree-holder has filed this second appeal.

2. In this appeal, two questions arise for consideration.

(1) Whether the execution petition filed on 13-7-1960 was in time; and

(2) Whether the decree-holder is entitled to claim mesne profits only for a period of three years and not till the date of delivery of possession of the mortgaged property.

3. The question of limitation is governed by Article 182 of the Indian Limitation Act, 1908.

The relevant part of that Article reads:

'Description of application. Period of limitation. Time from which period begins to run For the execution of a decree or order of any Civil Court notprovided for by Art. 183 or by s. 48 of the Code of Civil Procedure, 1908 (V of1908).

Three years or where a certified copy of the decree or order hasbeen registered six years.

1. The date of thedecree ororder, or

2.(Where there has been an appeal) the date of the final decree or order of theappellate Court, or the withdrawal of the appeal, or

* * * *.'

4. The contention of the judgment-debtor before the executing Court was that the final decree which had been put into execution having been passed on 18-4-1955, the execution petition filed on 13-7-1960 more than three years after the date of the final decree was barred by time as under Article 182 the petition had to be filed within three years from the date of the decree. The decree-holder contended that the case was governed by Clause (2) of Column 3 of Article 182 end that the execution petition which was filed within three years from the date of disposal of M. A. (M) No. 9/1956 of this Court (disposed of on 31-8-1959) was in time. In this Court also it is argued by Shri M. Gopalakrishna Shetty, learned counsel for the decree-holder, that the expression 'appeal' found in Clause (2) of Column 3 of Article 182 included within its meaning not merely an appeal filed against the final decree which was passed on 18-4-1955 but also the appeal filed against the order of remand before this Court in M. A. (M) No. 9/1956. Shri Padubidri Raghavendra Rao, learned counsel for the judgment-debtor, contends that the said expression 'appeal' can only refer to an appeal filed directly against the final decree dated 18-4-1955 and cannot refer to M. A. (M) No. 9/1956.

5. In order to understand the case put forward by the parties, it is necessary to understand the object with which the legislature enacted Clause (2) of Column 3 of Article 182. The object appears to be that when a decree or order is liable to he set aside in an appellate proceeding it would not be just and proper to compel the decree-holder to execute the decree or order during the pendency of the appeal, by providing that the time to execute the decree or order would commence to run from its date, because it the decree or order is set aside ultimately in appeal, both the decree-holder and the judgment-debtor would be prejudiced by the execution proceedings -- the decree-holder would have to spend money and time on an execution proceeding which would ultimately turn out to be useless so for as he is concerned and the judgment-debtor would also suffer by being compelled to comply with the directions in the decree or order before the appeal is disposed of. There would also be necessity for the Court to pass consequential orders of restitution in the event of the decree or order being set aside subsequently. Apparently, having that in view, the Legislature provided that the time for filing an execution application would run from the date of the decree or order of the appellate Court where there has been an appeal. This view receives support from the decision of the Privy Council in Nagendia Nath Dey v. Suresh Chandra Dey in which the Privy Council observed as follows (at p. 167) :

'Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon the plain words of the article: 'where there has been an appeal,' time is to run from the date of the decree of the appellate Court. There is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide. It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court. But whether there be or be not a theoretical justification for the provision in question, their Lordships think that the words of the article are plain, and that there having been in the present case an appeal from the mortgage decree of 24th June 1920, time only ran against the appellants from 24th August 1922, the date of the appellate Court's decree. They are therefore in agreement upon this point with the Subordinate Judge, and they think that the order passed by him on 4th August 1924 was right.'

6. It is, however, argued by Shri Padubidri Raghavandra Rao that the expression 'appeal' could only refer to an appeal against the final decree and not to M. A. (N) No. 9/1956 which according to him was a collateral proceeding. I do not think that he is right in making that submission. It in not disputed that the final decree in question was passed by the trial Court pursuant to the order of remand passed by the District Judge on 24-2-1955 in A. S. No. 250/1954. It is also not disputed that this Court could have made the final decree passed on 18-4-1955 ineffective by allowing the appeal M. A. (M) No. 9/1956 and restoring the order of the trial Court dated 31-3-1954 dismissing the application for final decree. The Appeal M. A. (M) No. 9/1956 cannot, therefore, be considered as an appeal against an order passed in a collateral proceeding, but it must be understood on an appeal, the result of which had a direct bearing on the validity or otherwise of the final decree even though it might have been passed by the trial Court pursuant to the order of remand passed by the District Judge. Shri Raghavendra Rao, however, tried to derive some support from the decision of this Court in Rama Naik v. Kodimbady Manjappa Shetty in Mis. Appeal No. 374 of 1961 decided on 2-7-1962 (Mys) in which the Court had held that 'the appeal' referred to in Clause (2) of Column 3 of Article 182 did not refer to an appeal filed under Order 43 of the Code of Civil Procedure against the order passed on an application made under Order 9 Rule 13 C. P. C. The decree in question in that case was an ex parte decree passed on 29-2-1956. The defendant made an application for setting aside the said decree under Order 9 Rule 13 C. P. C. and that was dismissed. He, however, preferred an appeal under Order 43 C. P. C. against the order dismissing that application. The appeal, was dismissed on July 30, 1957. The first execution application WHS filed on July 10, 1936 and the second execution application was filed on June 29, 1960 more than three years after the date of disposal of the earlier execution application. The judgment-debtor contended that the second application was barred by time. The decree-holder contended that the time to file the execution petition would commence to run from July 30, 1957 on which date the appeal filed under Order 43 C. P. C. was dismissed and therefore the application made on June 29, 1960 was in time. This Court repelled the contention of the decree-holder holding that the appeal referred to in Clause (2) of Column 3 of Article 182 did not refer to appeal filed against an order made on an application under Rule 13 of Order 9 C. P. C. The reason for taking that view was that the proceeding under Rule 13 of Order 9 C. P. C. was only a collateral proceeding and the question for investigation in that case was whether the defendant had not been duly served with the summons issued by the Court or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. The appeal M. A. (M) 9/1956 on the file of this Court cannot be equated with the appeal under Order 43 C. P. C. Since as mentioned earlier in that appeal the right of the decree-holder to the passing of the final decree was directly involved. Hence, the decision in Rama Naik's case is of no assistance to the judgment-debtor. For the game reason, the decision of the Supreme Court in Bhawanipore Banking Corporation Ltd. v. Gouri Shankar : [1950]1SCR25 which was relied on by this Court in Rama Naik's case is also of no assistance, since that again was a case where the appeal in question was one from an order which had been passed in a collateral proceeding which had no direct or immediate connection with the decree under execution.

7. It is necessary at this stage to refer to some of the decisions of the Madras High Court which have been referred to by the lower appellate Court. In Ahammad Kutty v. Kottakkay Kuttu (AIR 1933 Mad 315) it was held that where a preliminary decree was passed in a partition suit and an appeal was filed from such decree, the time for executing the final decree which had been passed during the pendency of the appeal against the preliminary decree would commence to run from the date of the final decree and not from the date of the disposal of the appeal against the preliminary decree. This decision was dissented from in P. P. Koyakutti v. A. Veerankutti : AIR1937Mad421 . i In that case it was held that where pending an appeal against the preliminary decree in a mortgage suit, which was confirmed on appeal, a final decree was passed, an application for execution of that final decree filed within three years of the date of the appellate preliminary decree but more than three years after the date of the final decree was in time, within Article 182 (2) of the Limitation Act and not barred. The expression 'where there has been appeal' in Article 182 (2) was held to mean an appeal which was likely to affect the decree sought to be executed. Against this decision a Letters Patent Appeal was filed before the High Court of Madras in A. Veeran Rutti v. P. P. Koya Kutti : AIR1939Mad735 and a Division Bench of that Court affirmed the said decision and dismissed the appeal. The correctness of the above decision arose for consideration before a Full Bench of the Madras High Court in Sivaramachari v. Anjaneya Chetty : AIR1951Mad962 in which it was contended that the time to execute mortgage decree arose from the date of the dismissal of a Civil Revision Petition against an order of the trial Court declining to bring a person as a legal representative of the judgment-debtor. The Full Bench held that the view expressed in Veeran Kutti's case was too wide and could not be followed. But the following observations made by the Full Bench which are of assistance to the decree-holder in this case, require to be noticed (at p. 967 of AIR) :

'In some of the cases to which reference has been made above, there was an appeal against the preliminary decree in a mortgage suit and an appeal therefrom; the question was whether for the execution of the final decree in such a case, time could be computed from the date of the disposal of the appeal against the preliminary decree. I am of opinion that it could be, but not because of the 'imperiling' theory. An appeal against the preliminary decree involves an appeal against the final decree which follows that preliminary decree. Though the terminology gives an impression that there are two decrees, I think the correct legal position is that there is only one decree in a suit in the sense that it is the expression of an adjudication determining the rights of the parties with regard to all the masters in controversy in the suit. A preliminary decree is merely a stage in working out the rights of parties which are finally determined by the final decree. An appeal against a preliminary decree would be an appeal within the meaning of the word 'appeal' in Clause (2) of Column 3. With respect I agree with the following observations made by Dawson Miller, C. J., in Somar Singh v. Devanandan Prasad (AIR 1928 Pat 581) :

'There can be no doubt that the appeal to the High Court from the preliminary decree had it been successful would have had the effect of discharging the final decree passed by the trial Court as well as the preliminary decree. It seems to follow, therefore, as a matter of course that the appeal in this case was not only an appeal from the preliminary decree but an appeal from all that naturally followed by the passing of that decree, namely, the final decree for sale which after all is merely part of the machinery prescribed for carrying out the direction for sale contained in the preliminary decree.'' In the case before us there was only an application to bring on record the respondent as the legal representative of the defendant alleged to have died and a petition under Section 115 of the Civil Procedure Code to revise the order dismissing that application. Assuming the word 'appeal' includes a civil revision petition as decided by the Full Bench in Chidambara Nadar v. Rama Nadar, it is obvious that it is not the order on the civil revision petition that is being executed. That order cannot be the final decree or order of the appellate Court referred to in Clause (2) of Column 3 of Article 182. The execution petition was therefore rightly dismissed.'

8. In the instant case, the appeal M.A. (M) No. 9/1956 was not even an appeal against a preliminary decree but it was an appeal against an order of remand passed in an appeal against an order dismissing the application for final decree. The appeal M. A. (M) No. 9/1956 has, therefore, to be construed as an appeal in the final decree proceedings which had a direct bearing on the validity or otherwise of the final decree passed on 18-4-1955. In the circumstances, it is not necessary for me to say anything more about the views expressed by the decisions of the Madras High Court referred to above.

9. That the expression 'appeal' in Article 182 (2) would include within its scope an appeal like M. A. (M) No. 9/1956 is clear from the decision of the High Court of Bombay in Sardarsing Amarsing v. Ramkaran Ramnath (AIR 1960 Bom 154) wherein it is observed (at p. 156):

'It must follow by necessary implication from these observations that if an appeal is made from an order which has a direct or immediate connection with the decree under execution, that appeal would be covered by the expression 'appeal' in Clause (2) of Article 182.'

10. I am, therefore, of the opinion that the appeal M. A. (M) 9/1956 is an appeal covered by the expression 'appeal' in Article 182 (2) and that the time to file the execution petition commenced to run from 31-8-1959 on which date the said appeal was disposed of. The execution petition filed on 13-7-1960 was, therefore, in time. The finding of the lower appellate Court that the execution petition was barred by time is liable to be set aside. It is, accordingly, set aside.

11. The next contention relates to the validity of the claim of the decree holder for mesne profits for the period upto the date of delivery of possession of the mortgage property. It is argued by Shri Raghavendra Rao that it was not open to the executing Court to order recovery of mesne profits in respect of the period beyond three years from the date of the decree even though possession of the mortgaged property had not been delivered till now. This argument is not available to the judgment debtor in this case, because the executing Court is bound to execute the decree as it stands and the decree says that the judgment-debtor shall pay mesne profits for the period upto the date of delivery of possession. The judgment-debtor should have questioned the correctness of the said direction in an appeal against the final decree. He has not done so. The executing Court cannot sit in judgment over the correctness of the said direction. It is held that the judgment-debtor is liable to pay mesne profits as directed by the decree, till the date of delivery of possession. No other question arises for consideration

12. In the result, this appeal is allowed, the execution petition filed by the decree-holder is held to be in time and the executing Court is directed to proceed with the execution petition as prayed for. No costs.

13. Appeal allowed.


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