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B.S. Ramadevi and ors. Vs. Pramellamba and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKarnataka High Court
Decided On
Case NumberEx. First Appeal No. 1 of 1972
Judge
Reported inAIR1973Kant188; AIR1973Mys188; (1973)1MysLJ68
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 2; Limitation Act, 1963 - Sections 17
AppellantB.S. Ramadevi and ors.
RespondentPramellamba and ors.
Appellant AdvocateK. Shivashankar Bhat, Adv.
Respondent AdvocatePadubidri Raghavendra Rao, Adv.
DispositionAppeal dismissed
Excerpt:
.....under the act. where the landlord claimed that he has inherited the property under a will and there was no challenge by other legatees or claimants, the tenant cannot challenge the genuineness of the will. - in the nature of things, therefore, it is not possible for a judgment-debtor to complain that any conduct on the part of the decree-holder, whether fraud or other, is a circumstance which in the eve of law prevented him from making his own application under rule 2 of order 21. civil p. 10. we are therefore not satisfied that the lower appellate court committed any error in corning to the conclusion that the application of the appellants does not fall within the scope of section 17 of the limitation act......to recover more than a lakh and ten thousand rupees. when the execution petition filed by the decree-holder was pending, it is stated that he agreed with the judgment-debtor on the 28th february. 1967 to receive rupees 96,000/- in full satisfaction of the decree. it is further stated that the judgment-debtor paid the said amount and secured from the decree-holder a receipt in his own hand-writing signed by him and attested by two witnesses. it was the further case of the appellants that on the 1st of march. 1967. decree-holder told the judgment-debtor that he had already reported the payment to the court and that therefore the judgment-debtor did not himself take steps to report payment.2. the decree-holder died on the 15th of june. 1967. the judgment-debtor thereupon made enquiries.....
Judgment:

A. Narayana Pai, C.J.

1. The appellants are legal representatives of the judgment-debtor in O. S. No. 70/1964 on the file of the Addl. Civil Judge. Mysore (which was a suit originally filed before the District Court and transferred to the Civil Judge's Court). The suit was on a mortgage and the final decree was passed on the 26th of March. 1965 for sale of the property to recover more than a lakh and ten thousand rupees. When the execution petition filed by the decree-holder was pending, it is stated that he agreed with the judgment-debtor on the 28th February. 1967 to receive Rupees 96,000/- in full satisfaction of the decree. It is further stated that the judgment-debtor paid the said amount and secured from the decree-holder a receipt in his own hand-writing signed by him and attested by two witnesses. It was the further case of the appellants that on the 1st of March. 1967. decree-holder told the judgment-debtor that he had already reported the payment to the Court and that therefore the judgment-debtor did not himself take steps to report payment.

2. The decree-holder died on the 15th of June. 1967. The judgment-debtor thereupon made enquiries with the Court and discovering that his payment had not been reported by the decree-holder, he made his own application on the 17th of August. 1967 for recording satisfaction.

3. It is seen from the papers of the execution that the petition filed by the original decree-holder was dismissed on the 28th of March. 1967 on the basis of a memo filed bv him. In the memo he has stated that under the registered assignment deed dated 2nd of March, 1967. he has assigned the decree to one K. R. Venkatachala Shetty who is the 3rd respondent in this appeal. In the application filed bv the appellants, the assignee -- 3rd respondent, remained ex parte. The widow and son of the deceased decree-holder who have been inpleaded as legal representatives pleaded ignorance but opposed the application.

4. The lower appellate Court has held on examination of evidence that the payment of Rs. 96,000/- pleaded bv the legal representatives of judgment-debtor is true and that the receipt Ex. P-8 evidencing the same is genuine. It has however dismissed the application on the ground that it is barred by limitation.

5. The argument of Mr. Shiva-shankara Bhat on behalf of the appellants is that the cases or rulings cited before the lower appellate Court and relied upon by it in support of its view on the Question of limitation are all cases decided under Section 18 of the Indian Limitation Act of 1908 and that the law must be regarded as having been altered by Section 17 of the new Limitation Act of the year 1963. He does not dispute, nor is it possible to do so. that the unanimous opijudgment debtor High Courts was that Section 18 of the Limitation Act was not available in respect of an application bv a judgment debtor under Rule 2 of Order 21 Civil P. C., for entering full or part satisfaction of decree on the ground of payments having been made by him.

6. The old Section to the extent relevant reads:--

'Where any person having a right to institute a suit or make an application has by means of fraud, been kept from the knowledge of such right or of the title on which it is founded.

X X X X Xthe time limited for instituting a suit or making an application x x x x x shall be computed from the time when the fraud first become known to the person injuriously affected thereby .....'

The first schedule of the said Limitation Act of 1908 also contained two articles namely. Art. 95 prescribing a period of three years for obtaining relief on the ground of fraud from the date when fraud becomes known to the party wronged and Article 96 prescribing a period of three years for relief on the ground of mistake when the mistake becomes known to the plaintiff.

7. The ideas involved in or the intention of all the above provisions of the previous Act. i. e. Section 18 and Articles 95 and 96 are collected and enacted in Section 17 of the new Act as follows: '17. Effect of fraud or mistake.--(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act.--

(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or

(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or

(c) the suit or application is for relief from the consequences of a mistake; or ..... the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or mistake or could, with reasonable diligence, have discovered it;...'

8. It is seen from the foregoing that the only change effected by the Limitation Act. 1963 is a change in the matter of drafting and redistribution of ideas and not any change in the law itself. Whereas under the old Act. what appeared to be a fresh period of limitation was prescribed from the date of knowledge of fraud or mistake as the case may be for suits for relief on the ground of fraud or mistake, the new Limitation Act assimilates those ideas to the framework of Section 18 of the old Act namely, that the starting point of limitation prescribed for any suit or application is itself postponed where the plaintiff is prevented from going to Court by reason of such supervening circumstances as fraud on the part of the defendant or mistake on his own part. It will also be noticed that even under the old Section 18 provision was made in respect of applications also.

9. The real substance of the matter so far as an application under Rule 2 of Order 21. Civil P. C. is concerned is that the right of a judgment-debtor to make an application is quite independent of whether or not the decree-holder, who has received money or satisfaction, reports the same to the Court. In the nature of things, therefore, it is not possible for a judgment-debtor to complain that any conduct on the part of the decree-holder, whether fraud or other, is a circumstance which in the eve of law prevented him from making his own application under Rule 2 of Order 21. Civil P. C.

10. We are therefore not satisfied that the lower appellate Court committed any error in corning to the conclusion that the application of the appellants does not fall within the scope of Section 17 of the Limitation Act. 1963 and that the same was barred as having been filed beyond the period prescribed under Article 125 of the schedule to the said Act

11. It is seen from the execution papers that after the original decree-holder got his execution application dismissed on the 20th of March. 1967. the assignee decree-holder has neither got his assignment recognised nor made his own application for execution of the decree If and when he takes any such steps, it goes without saying that the appellants will be entitled to raise all objections available to them under the law.

12. The appeal is therefore dismissed. No costs.


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