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Nandigama Venkata Krishna Rao Vs. Mullpudi Ganeswara Rao - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.A.O. No. 14 of 1969
Judge
Reported inAIR1971AP246
ActsCode of Civil Procedure (CPC), 1908 - Sections 96 - Order 21, Rule 63 - Order 41, Rule 5(1); Limitation Act, 1908 - Sections 15
AppellantNandigama Venkata Krishna Rao
RespondentMullpudi Ganeswara Rao
Appellant AdvocateG. Balaparameswara Rao and ;E.S. Ramachandra Murty, Advs.
Respondent AdvocateM. Suryanarayana Murthy and ;K. Subba Raju, Advs.
Excerpt:
.....execution petition decided in favour of plaintiff was actually barred by limitation - as per section 15 of act in computing period of limitation for proceedings with regard to execution petition time relating to injunction should be excluded - claim for excluding whole time spent for prosecuting proceedings not acceptable - section 15 allows only time during which injunction order remained in force to be excluded - held, execution petition barred by time as decree-holder entitled only to exclude time during which there was an injunction. - - 11/57 and the decision rendered in that suit was confirmed in appeal as well as the second appeal. it was clearly pointed out in that case that the period during which there was no injunction restraining a suit could not be excluded even..........against the judgment in a. s. no. 3/68 on the file of the district judge. west godavari. the decree-holder is the appellant.2. the appellant filed o. s.no. 153/55 against the respondent for recovery of money in the court of the district munsif. tanuku. during the pendency of that suit, he got some immovable properties attached before judgment as belonging to the respondent. the father of the respondent intervened with a claim regarding item 1 of the attached property alleging that it had fallen to his share at a family partition with his son. that claim having been rejected, he filed o. s. 11/57 under order 21 rule 63 c. p. c. and obtained an injunction on 21-5-1957 restraining the decree-holder from proceeding with execution against item 1 of the attached property pending disposal.....
Judgment:

1. This appeal, which arises out of execution proceedings is directed against the judgment in A. S. No. 3/68 on the file of the District Judge. West Godavari. The decree-holder is the appellant.

2. The appellant filed O. S.No. 153/55 against the respondent for recovery of money in the Court of the District Munsif. Tanuku. During the pendency of that suit, he got some immovable properties attached before judgment as belonging to the respondent. The father of the respondent intervened with a claim regarding item 1 of the attached property alleging that it had fallen to his share at a family partition with his son. That claim having been rejected, he filed O. S. 11/57 under Order 21 Rule 63 C. P. C. and obtained an injunction on 21-5-1957 restraining the decree-holder from proceeding with execution against item 1 of the attached property pending disposal of the suit. That suit was decreed on 13-8-1959. The decree-holder carried the matter in appeal to the District Court in vain and the second appeal preferred by hi to the High Court also shared the same fate as it was dismissed on 10-12-1965. During the pendency of those proceedings, the claimant settled all his properties including item 1 of the attached property in favour of his daughter-in-law reserving for himself a life estate. The settle died on 23-11-63 and the father of the judgment-debtor also passed away on 5-8-66 with the result that the disputed property also devolved upon the judgment-debtor by inheritance. The appellant once again applied for execution against the same item of property in E. P. 438/66 on 27-8-66. This petition was resisted by the respondent who filed counter contending inter alia that it is barred by limitation not having been filed within 3 years from the date on which the prior E. P. 318/56 was dismissed. The court of first instance held that the petition in so far as it relates to dispute property (item 1 of the attached property) is in time on the ground that the time during which O. S. 11/57 and the appeals preferred against the judgment and decree therein were pending, has to be excluded computing the period of limitation in view of the provisions of Section 15 of the Limitation Act, which will hereinafter be referred to as the 'Act'. The execution petition was thereafter adjourned for settlement of terms to 11-9-67. In the meanwhile, one Satyanarayana, who appears to have entered into a contract with the judgment-debtor to purchase the dispute property deposited Rs. 3,759-71 Ps. into the executing Court and that Court recorded full satisfaction in the decree on 30-10-1967 as requested by the decree-holder. The respondent thereafter preferred an appeal to the District Court. West Godavari against the decision of the first Court negativing the plea of limitation. The learned District Judge allowed this Appeal as according to him. Section 15 of the Act is not at all attracted to the case since it was ultimately found in the previous proceedings that the judgment-debtor had no title to the property that was sought to be proceeded against by the decree-holder in execution. Hence this second Appeal.

3. It is contended for the decree-holder that the appeal itself to the Court below was incompetent as full satisfaction was entered in the decree even before the date of the institution of that appeal and that in any view the learned District Judge went wrong in his conclusion that he is not entitled to the benefit of Section 15 of the Act.

4. The plea that the appeal itself to the Court below was incompetent is raised for the first time in the course of arguments before this Court. No explanation is fourth coming as to why this objection was not raised during the pendency of the appeal before the learned District Judge. Even otherwise, there does not seem to be any merit in this contention. There is nothing on record to show that the decree-holder had taken out notice to the respondent on the application which he madeto the executing Court for entering up full satisfaction in the decree or that the respondent otherwise be came aware of the same. The unilateral act of the decree-holder in getting full satisfaction recorded in the decree behind the back of the respondent and without his knowledge cannot have the effect of depriving the latter of his statutory right to prefer an appeal against the decision with which he felt aggrieved. Learned counsel for the appellant has not been able to refer me to any authority in support of his contention that when once full satisfaction is entered in a decree, full satisfaction is entered in a decree the judgment-debtor has no right of appeal against the order of the executing Court even if he has no knowledge of the recording of full satisfaction. The objection against the tenability of the appeal to the Court below cannot therefore, be sustained.

5. The next and more important question for consideration is whether, in the circumstances of the case, the appellant can call in aid Section 15 of the Act and if so, whether he is entitled to have not only the time during which the injunction granted in O. S. 11/57 was subsisting but also the time during which the appeal and the second appeal preferred from the decision in that suit were pending, excluded while computing the period of limitation for making the application for execution. Section 15 lays down that in computing the period of limitation for any suit or application for the execution of a decree the institution or execution 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. The effect of the injunction which the father of the respondent obtained in O. S. 11/57 was to suspend or stay the execution that was then being taken out by the decree-holder against Item 1 of the property which he attached before judgment but only for so long as that suit was pending. The moment that suit was disposed of the decree-holder was free to proceed further with execution against the dispute property if he was otherwise entitled to do so. This was otherwise entitled to do so. This course was however, not open to him as the claimant's title to the dispute property was upheld in O. S. 11/57 and the decision rendered in that suit was confirmed in appeal as well as the second appeal. When as a result of the decision in those proceedings, it transpired that the judgment-debtor had no title to the dispute property, there was nothing more for the decree-holder to proceed against in execution. So, there was no question of his asking for revival of E.P. 318/56 or filing a fresh petition for taking out execution against the same items of property and seeking, for that purpose, exclusion of the time spent by him in prosecuting the appeal and the second appeal preferred against the decision in O. S. 11/57 as provided in Section 15 of the Act. Section 15 is therefore, totally out of place in this case as was rightly pointed out by the learned District Judge. it can be invoked if only proceedings in execution are stayed by an injunction or order and execution is once again proposed to be taken against the self-same property after the stay is vacated and not otherwise.

6. Even, otherwise, the correctness of the decision arrived at by the Court below cannot be assailed as the period that could be excluded for the purpose of limitation is only that during which the injunction was in force and not the time that was spend in prosecuting the appeal and the second appeal also against the judgment in O. S. 11/57. it was, however, argued that the appeal and the second appeal preferred by the decree-holder, being only proceedings in continuation of the suit filed under O. 21. Rule 63, Civil P. C., the injunction granted by the trial Court in O. S. 11/57 should be deemed to have been subsisting right upto the date on which the second appeal was disposed of and that, in this view, he would be entitled to exclude not only the time during which the injunction was subsisting but also the time spent by him in prosecuting the appeal and the second appeal while computing the period of limitation for filing the execution petition. Chennammal v. Chennappa AIR 1958 Madras 21 is relied upon the support of this contention. Basheer Ahmed Sayeed. J. (as he then was) held in that case:

'For an application to execute the decree the time that lapsed in the proceedings by the obstructer in the shape of a suit as also the appeal would be available to the decree-holder for the suit and the appeal which has been filed by the obstructor should be construed and considered only as a continuation of the execution proceedings the claim the suit and the appeal having arisen all out of the same execution proceedings.'

This decision on n doubt appears to lend support to the stand taken by the learned counsel for the appellant; but there is an earlier Bench decision of the same High Court in Doraisami Reddi v. Venkatachalam Pillai, 27 Mad LJ 734 = (Air 1915 Mad 756 (2)), which is binding on this Court for the reason that it was rendered long prior to 1956 and which seems to provide a complete answer to the contention raised on behalf of the decree-holder. It was clearly pointed out in that case that the period during which there was no injunction restraining a suit could not be excluded even though the decree cancelling the injunction was set aside by the appellant Court. That filed by a tenant. The trial Court granted an injunction on 5-5-1906 restraining one of the parties to the suit from collecting the rent due from the tenant. This injunction stood vacated on 3-11-1906 as a result of the decision of the appellate Court that the suit itself was liable to be dismissed for misjoinder of parties and causes of action. The High Court, however set aside this decision of the first appellate Court on 22-10-1909 and remanded the matter.

In those circumstances it was contended that the order or the District Munsif, was revived and the injunction must be deemed to have been in force between the date of the District Munsif's decree and that of the order of the High Court. This contention was negatived by their Lordships observing;

'In the first place, the order of remand by the High Court is not tantamount to the issue of an injunction. In the second place, there was nothing to prevent the plaintiff from suing between May 1906 and October, 1909. He cannot claim to exclude in his favour the time during which no injunction was in force against him. We therefore hold that Section 15 of the Limitation Act is not available to the respondent'

Further, simply because the suit and appeal are considered to be continuation of the claim petition for certain purposes, it cannot be said that the whole time spent in prosecuting those proceeding could be excluded while computing the period of limitation even when there was no impediment in the shape of an injunction or order against taking out execution during the pendency of the proceedings, notwithstanding the plain and unambiguous language contained in Section 15 of the Act that the time during which the injunction order continued to remain in force alone could be excluded while computing the period of limitation for an application for execution.

7. Mr. Balaparameswari Rao, then argued that the decree passed in O. S. 11/57 as also that of the appellate Court in that matter should be deemed to consist an 'order' within the meaning of Section 15 of the Act staying execution of the decree and that in this view, either the appellant is entitled to exclude the time spent by him in prosecuting the appeal and the second appeal against, the decision in O.S.No. 11/57. I am, however, not impressed with this contention. As already stated, item 1 of the attached property could not be proceeded against by the decree-holder in execution after the claim suit was decreed. If he desired to take out execution against other properties, if any, belonging to the judgment-debtor, nothing prevented him from doing so even during the pendency of O. S. 11/57. It cannot, therefore, be said that the decree made in O. S. 11/57 and conformed in the appeal and the second appeal which he preferred from it constituted an impediment in the way of the decree-holder from proceeding further with execution. Further, an appeal does not operate as stay of proceedings in execution as can be seen from Order 41, Rule 5 (1), Civil P. C. and so, the mere fact that the decree-holder chose to challenge the decision in O. S. 11/57 by preferring an appeal and thereafter a second appeal would not entitled him to ask for exclusion of the time which he spent in prosecuting those appeals while computing the period of limitation of E. P. 438/66.

8. Reference may also be made in this context to Siraj-ul-Haq v. S. C. Board of Waqf. : [1959]1SCR1287 , in which it was pointed out by their Lordships of the Supreme Court that it is plain that, for excluding the time under Section 15 of the Limitation Act, it must be shown that the institution of the suit in question had been stayed by an injunction or order; that in other words, the section requires an order or an injunction which stays the institution of the suit. But, as already stated, the pendency of the appeal and the second appeal against the judgment in O. S. 11/57 did not operate to stay the execution of the decree which the appellant obtained against the respondent. it is, therefore, clear that the decree-holder was at best entitled only to exclude the time during which there was an injunction restraining him from proceeding with execution against Item 1 of the attached properties. But E. P. 438/66 would be out of time even if the period during which the injunction was in force is excluded, on the assumption that Section 15 of the Act is applicable to this case. In either view therefore, the Court below was right when it held that E. P. 438/66 is barred by time.

9. In the result, the appeal fails and is accordingly dismissed but without costs in the circumstances. No leave.

10. Appeal dismissed.


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