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G. Ramachandraiah Chetty Vs. State of Andhra - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 61 of 1961
Judge
Reported inAIR1964AP13
ActsLimitation Act, 1908 - Sections 5 and 15; Code of Civil Procedure (CPC) , 1908 - Order 21, Rule 63 - Order 38, Rule 8
AppellantG. Ramachandraiah Chetty
RespondentState of Andhra
Appellant AdvocateT.S. Narasinga Rao, Adv.
Respondent AdvocateD.V. Sastry, 3rd Govt. Pleader
DispositionAppeal allowed
Excerpt:
.....15 of limitation act, 1908 - respondent instituted suit against appellant for recovery of money - suit decreed in respondent's favour - property of appellant attached for same - appellant's wife claimed her rights in subject property and instituted suit - during pendency of suit execution filed by respondent - appellant resisted execution of decree as time barred - time elapsed in previous proceedings could not be excluded from limitation - high court included this period for purpose of limitation as it was an application for execution. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be..........to vacate an order under order 38, rule 8 c. p. c. would proprio vigore operate in favour of the decree-holder to enable him to exclude the time contemplated by section 15 of the limitation act.2. the facts leading to this civil miscellaneous appeal are not in dispute and lie in a narrow compass. the respondent filed a suit against the appellant for recovery of a sum of rs. 14,680/- and also applied for attachment before judgment of certain properties as belonging to the appellant. one of the items of property attached was claimed by his wife as her own and not as part of the property belonging to the appellant. the claim was disallowed in 1953. ultimately, a decree was entered in favour of the plaintiff-respondent on 21-11-1953. meanwhile, the appellant's wife raised an action under.....
Judgment:

Chandra Reddy, C. J.

1. The question that poses itself in this appeal is whether the institution of a suit to vacate an order under Order 38, Rule 8 C. P. C. would proprio vigore operate in favour of the decree-holder to enable him to exclude the time contemplated by Section 15 of the Limitation Act.

2. The facts leading to this Civil Miscellaneous Appeal are not in dispute and lie in a narrow compass. The respondent filed a suit against the appellant for recovery of a sum of Rs. 14,680/- and also applied for attachment before judgment of certain properties as belonging to the appellant. One of the items of property attached was claimed by his wife as her own and not as part of the property belonging to the appellant. The claim was disallowed in 1953. Ultimately, a decree was entered in favour of the plaintiff-respondent on 21-11-1953. Meanwhile, the appellant's wife raised an action under Order 21, Rule 63 C. P. C. to vacate the order made by the trial Court under Order 38, Rule 8 C. P. C. The suit was dismissed on 7-3-56. An appeal was taken against this judgment to the District Court, Chittoor in A. S. No. 116 of 1956, which was dismissed on 8-3-1957. The second appeal carried by the unsuccessful party shared the same fate. But, pending this appeal, a conditional order of stay of execution of the decree was made by this Court on 27-8-1957. The stay was dissolved on 6-10-1958 as the condition was not fulfilled. During the pendency of the second appeal, the decree-holder took out execution on 11-7-1960.

3. The petition was resisted by the judgment-debtor chiefly on the plea that the execution petition was barred by limitation, as no E. P. was presented within three years of the passing of the decree as required by Article 182 of the Limitation Act.

4. The trial Court over-ruling the objection directed execution to proceed.

5. It is this order of the executing Court that is the subject-matter of this appeal. In support of the appeal, it is urged by Sri Narasinga Rao, learned counsel for the appellant, that the time of the continuance of the suit and the appeal etc., could not be excluded in computing the period of limitation for an application to be filed under Article 182 of the Limitation Act. This contention is well-founded.

6. Section 15 of the Limitation Act runs as follows: '(1) In computing the period of limitation prescribed or any suit or application for the execution of a decree, the institution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which It was issued or made, and the day on which it was withdrawn, shall be excluded.

'2. In computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded.'

7. It is manifest that it is only 'the time of the continuance of the injunction or order' and the day on which it was issued or made that should be excluded in calculating the period of limitation prescribed for execution of the decree here. Admittedly, no injunction or order staying the execution of the decree was issued or made either by the trial Court or the lower appellate Court. It was only in the High Court that a conditional order of stay was made but it was in existence only for a period of one year, one month and ten days. Even if this period is excluded, still the requirement of Article 182 of the Limitation Act remains unfulfilled. Mere filing of a suit to set aside an order made either under Order 21, Rule 63, C. P. C, or Order 38, Rule 8 C. P. C. would not amount to an injunction or an order of stay. It is only cases where there is an injunction or a specific order of stay that would come within the ambit of Section 15 of the Limitation Act. In the absence of it, the decree-holder could not invoke Section 15 of the Limitation Act.

8. Reliance is placed by the learned counsel for the respondent on a. judgment of the Madras High Court in Sinnaru Thevan v. Nachiappa Chettiar, : AIR1955Mad67 where it has been laid down that the decree-holder, during the pendency of a claim petition by a third party, cannot execute his decree against the judgment-debtor and so the pendency of a claim petition is tantamount to a stay of the execution of the decree. With deference to the learned Judges, we have to demur to this proposition. We do not think that mere pendency of a suit amounts to stay of execution of the decree. There was no obstacle in the way of the decree-holder levying execution. We are not concerned with the question as to how the ultimate result of the suit would affect the final execution, he point for determination being as to whether the decree-holder could call In aid Section 15 of the Limitation Act. We feel that Section 15 could be availed of only when the other requirement of it are satisfied.

9. This view of ours gains support from the pronouncements of the Supreme Court in Siraj-ul-Haq v. Sunni Central Board of Waqf, U.P. : [1959]1SCR1287 . The following observations in the Judgment furnish an effective answer to the contention urged on behalf of the decree-holder.

'We are, however, prepared to assume in the present case that Section 15 would apply even to cases where the Institution of a suit is stayed by necessary implication of the order passed or injunction issued in the previous litigation. But in our opinion, there would be no justification for extending the application of Section 15 on the ground that the institution of the subsequent suit would be inconsistent with the spirit or substance of the order passed in the previous litigation. It is true that rules of limitation are to some, extent arbitrary and may frequently lead to hardship; but there can be no doubt that, in construing provisions of limitation, equitable considerations are immaterial and irrelevant, and in applying them effect must be given to the strict grammatical meaning of the words used by them.'

10. After this authoritative decision, there can be no room for doubt that the principle underlying Section 15 of the Limitation Act cannot be extended to mere pendency of claim proceedings. There should be an order staying the execution of the decree or an order Of injunction restraining the decree-holder from proceeding with execu-tion. It follows that the order of the trial Court that, the execution petition was not barred under Art. 182 of the Limitation Act cannot be sustained.

11. The learned Counsel for the respondent then fell back upon Section 5 of the Limitation Act. He invites us to excuse the delay in filing the petition on the basis of Section 5, although no application was made in the lower Court. We are afraid that Section 5 is unavailable to the decree-holder, as this Section has not been extended to application for execution of decrees. Without such a specific extension, the decree-holder cannot have recourse to Section 5. That section postulates:

'Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after, the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient case for not preferring the appeal or making the application within such period.'

xxxxx

12. An execution petition not being an application for a review of judgment or for leave to appeal. Section 5 would not govern it unless it is made applicable to execution proceedings. Our attention is not drawn to any statutory provision which has extended the operation of Section 5 to execution petitions. It follows that the decree-holder cannot call in aid Section 5 of the Limitation Act.

13. In the circumstances, the appeal is allowed and the order of the trial Court is set aside. But the parties will bear their own costs throughout.


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