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N. Sriramamurthi Vs. N. Sooramma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 58 of 1961
Judge
Reported inAIR1963AP492
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48; Limitation Act, 1908 - Sections 6 and 6(1)
AppellantN. Sriramamurthi
RespondentN. Sooramma and ors.
Appellant AdvocateK. Venkataramana, Adv.
Respondent AdvocateJ. Suryanarayana, Adv. for D.V. Sastry, Adv.
DispositionAppeal allowed
Excerpt:
.....186 :(air 1914 mad 526). 23. we will now consider kandaswami v. it would include a case where a period of limitation is prescribed by any general stattue like the code of civil procedure. 442 of the report air1952mad186 (fb). i venture to think further that even if it be understood in the strictest sense, the period fixed by section 48 of the code must be deemed to have become apart of the limitation act by a process of incorporation is articles 181 and 182. column 1 of article 181 speaks of an application for which no period of limitation is provided elsewhere in this schedule or in section 48 of the code of civil procedure 1908. whether the word 'prescribed' in section 15 would apply to periods of limitation provided by other statutes or not, it is clearly indicated by article 181..........the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefore in the third column of the first schedule.'9. we are unconcerned with the provisions of sub-sections 2, 3 and 4 and, so, it is unnecessary to extract them here.10. the principle point that falls to be decided in this appeal is whether this section controls section 48 cpc. in the context of this enquiry, the language of the last part of the sub-section cannot be lost sight of namely, 'as would otherwise have been allowed from the time prescribed therefore, in the third column of the first schedule.' this, in our opinion, denotes that the privilege conferred by section 6 on a minor is only in respect of limitations prescribed in the third column of the first.....
Judgment:

Chandra Reddy, C.J.

1. The problem that falls to be solved in this appeal is whether Section 48 CPC is subject to Section 6 of theIndian Limitation Act.

2. The facts necessary for the present enquiry are not in dispute and lie in a narrow compass. A minor, whose legal repreentative is the first respondent herein, obtained a decree against one Sarabharaju in O.S. No. 338 of 1952 on the file of the District Munsif's Court, Kakinada, on 29-11-1935. Execution of this decree was taken out by the guardian of the minor on 12-11-1938 but the petition was dismissed as infructuous on 16-2-1939. The minor attained majority on 5-7-1949. Two years threreafter, i.e., on 31-10-1951, he filed another petition (E.P. No. 5 of 1953).

3. The judgment-debtor resisted the petition on the ground that it was barred under Section 48 CPC. The decree-holder invoked Section 6 of the Limitation Act for extending the period of limitation envisaged by Section 48 CPC. However, the objection raised by the judgment-debtor based on Section 48 found acceptance with the executing Court with the result that the execution petition was dismissed.

4. However, on appeal, the Subordinate Judge reversed the order of the District Munsif being of opinion that the judgment-creditor could have resort to Section 6 of the Limitation Act, which saved the decree from the bar of Section 48 C.P.C. In that view, he remitted the case to the executing Court for disposal on merits.

5. The judgment-debtor, who was dissatisfied with this determination, brought an appeal to this Court in C.M.A No. 58 of 1961. Our learned brother, Munikanniah, J., felt that there was divergence of judicial opinion on this question, and therefore, there should be an authoritative ruling on the subject. Hence, he directed the case to be placed before a Division Bench.

6. Before we discuss the case-law dealing with this topic, we have to produce the statutory provisions around which the controversy revolves in this case.

7. Section 48 CPC, is as follows:--

'(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from-

(a) the date of the decree sought to be executed or,

(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the application seeks to execute the decree.

(2) Nothing in this Section shall be deemed-

(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of twelve years, where the judgment-debtor has by fraud or force prevented the execution of the decree at some time within twelve years immediately before the date of the application or,

(b) to limit or otherwise affect the operation of Article 183 of the First Schedule to the Indian Limitation Act, 1908.'

8. We shall now turn our attention to Section 6 of the Limitation Act. It reads:

'Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the period of limitation is to be reckoned, a minor or an idiot, or insame, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefore in the third column of the first schedule.'

9. We are unconcerned with the provisions of Sub-sections 2, 3 and 4 and, so, it is unnecessary to extract them here.

10. The principle point that falls to be decided in this appeal is whether this section controls Section 48 CPC. In the context of this enquiry, the language of the last part of the sub-section cannot be lost sight of namely, 'as would otherwise have been allowed from the time prescribed therefore, in the third column of the first schedule.' This, in our opinion, denotes that the privilege conferred by Section 6 on a minor is only in respect of limitations prescribed in the third column of the first schedule. That does not seem to extend the exemption to the limitations mentioned in other enactments. The operation of the section seems to be confined only to periods of limitations set out in the third column of the first schedule.

11. We will now refer to the decisions bearing on this subject. The leading case on it is Ramana Reddy v. Babu Reddi, ILR 37 Mad 186: (AIR 1914 Mad 526). A Division Bench of the Madras High Court decided in this case that the prohibition underlying Section 48 C.P.C., namely, that certain categories of decrees cannot be put into execution after the lapse of twelve years, is attracted to the case of minors - decree-holders and that Section 6 of the Limitation Act does not over-ride Section 48 C.P.C. The learned Judges dissented from the principle enunciated in Moro Sadashiv v. Visaji Raghunath, ILR 16 Bom 536. Sargent C. J. and Bridwood J., who decided the Bombay case, throught that Section 7 of the Statute of Limitations (XV of 1877) which was the predecessor of Section 6 of the present Limitation Act, governed Section 230 of the Code of Civil Procedure (XIV of 1882), corresponding to Section 48 of th preent Code. The learned Judges, though they felt that the relevant provisions of the Limitation Act, strictly speakding, applied to the cases dealt with by the Stattue itself, all the same throught that the question referred to them must be decided by the geneal principle of law as to the disability of minors, to which the provisions of the Civil Procedure Code must, in the absence of anything to the contrary, be deemed to be subject, the general principle being that time does not run against a minor and that the circumstance that he had been represented by a guardian did not affect the question.

12. Sundara Ayyar J., who spoke for the Court in, ILR 37 Mad 186: (AIR 1914 Mad 526) dealt elaboratelywith the question whether there was a general exemption for minors, from limitation and came to the conclusions that there was no general principles of law that 'time does not run against a minor' and that the minors or other persons under a disability were only entitled to such exemptions as are contemplated by specific provisions of law - whether it be in the Limitation Act or in any other enactment. With respect, we feel that this statement represents the correct view of law. No exemption could be recognized in favour of minors except those provided for by the stattue itself. On the main question, the learned judges of the Madras High Court ruled that since Section 6 was expressly limited to cases where the limitation was provided for in the Limitation Act, i.e., in the third column of the first schedule, there was no scope for holding that Section 48 C.P.C., could be construced as being subject to Section 6 and that on the other hand the latter provision was subservient to the former.

13. This ruling was followed by the various other High Courts. A Division Bench of the Allahabad High Court in Prem Nath Tiwari v. Chatarpal Man Tiwari, ILR 37 All 638 : (AIR 1915 All 349 (2)), followed the Madras ruling. The learned Judges who referred with approval to ILR 37 Mad 186 : (AIR 1914 Mad 526), expressly dissented from ILR 16 Bom 536. The doctrine of Nathu Mal v. Jai Karan Dass, AIR 1944 Lah 68 is in consonance with this rule. The Nagpur High Court in yadorao v. Govindrao, ILR (1939) Nag 559 : (AIR 1939 Nag 245) also laid down the same proposition, following ILR 37 Mad 186: (AIR 1914 Mad 526). The Division Bench consisting of Stone C.J., and Bose J., discussed this aspect at considerable length and gave independent reasons in support of their conclusion that Section 48 C.P.C., would not yield to Section 6 of the Limitation Act and that, on the other hand, Section 6 did not stand in the way of the full operation of Section 48 C.P.C. Our attention has been drawn to the decision Kartik Chandra Mukherji v. Bata Krishna Ray, ILR (1937)-2 Cal 373 : (AIR 1938 Cal 25) which contains the Obiter Dicta that the weight of judicial authority was in favour of the view that as Section 48 C.P.C., specially provided for limitation, it was not governed by the provisions of Section 6 and 7 of the Limitation Act.

14. We now come to Bibi Zalikan v. Rama Prasad, ILR 20 Pat 1 : (AIR 1941 Pat 45), which has considered this question exhaustively reviewing all the case-law on the point. The learned Judges, Dhavel and Meredith JJ. Decided that both Sections 6 and 7 of the Limitation Act, 1908 must be read subject to the provisions of Section 48 of the Civil Procedure Code, 1908 and not Vice-Versa, that the period of twelve years mentioned in Section 48 C.P.C., applied to minors also and that Section 6 of the Limitation Act did not save the bar of limitation contemplated by Section 48. In this case, the learned Judges referred to ILR 16 Bom 536, as also to a later decision of the same Co(sic) in Ramakrishna Vithal v. Ramchandra Dattatraya, ILR Bom 776 : (AIR 1930 Bom 508) and observed that limitation being the result of statute law, no exemption from it (sic) be recognized except what the statute itself provided (sic) that there could be no resort in such a case to any governed principle. They expressed the opinion that Section 6 of the Limitation Act did not over-ride Section 48 C.P.C.

15. We may next refer to the judgment of the Lahor High Court in Zaheer-ud-din v. Mt. Amtur Rashid ILR (1944) 25 Lah 592 : (AIR 1944 Lah 106). It is (sic) that no final opinion was expressed in that case. But it was observed there that Section 6 of the Limitation Act is applicable only to suits and applications for which a period of limitation is prescribed in the third column of the first schedule and if Section 6 is not applicable to the limtation mentionedin Section 48 C.P.C. the period mentionedin that section would remain unaffected by Section 6 of the Limitation Act. They stated that as the point was fully discussed in ILR 37 Mad 186 : (AIR 1914 Mad 526) it would be supererogatory on their part to discuss it any further.

16. It is thus seen that more of the High Courts have adopted the view taken by the Division Bench of the Madras High Court in ILR 37 Mad 186 : (AIR 1914 Mad 526). It is only the Bombay High Court that struck different note. But, as already observed, that decision was not based on a true construction of Section 6 of the Limitation Act but on what was considered to be the general law as to minors viz., that time does not run against a minor. The later decision of the Bombay High Court in ILR 54 Bom 776 : (AIR 1930 Bom 508) had not considered this matter independelty. They thought that as ILR 16 Bom 536, was considered to be an authority in the Bombay High Court for a long time it should be regarded as having become an established principle so far as that Court was concerned and that the view taken in that case was not shown to be contrary to the principles of natural justice of it had caused any undue hardship or inconvenience to parties. The learned Judges failed to bear in mind the principle that in construing statutes of limitation equitable consideration or principles of natural justice were out of place and that a decision had to be reached on interpreting the language of the section.

17. Our attention has not been drawn to any ruling of any other High Court which has taken a view opposite to that adumbrated in ILR 37 Mad 186 : (AIR 1914 Mad 526).

18. Sri Venkatappayya Sastry, learned Counsel for the respondents, has invited our attention to the observations of a Division Bench of the Madras High Court in Mannarswmi v. Ramaswami, AIR 1929 Mad 394, as containing a principle contrary to the underlying ILR 37 Mad 186 : (AIR 1914 Mad 526). The passage occurring in that decision giving rise to this contention is in these words:

'It was argued for the petitioner, founding on the ruling of ILR 37 Mad 186 : (AIR 1914 Mad 526) that minors are not exempt from the operation of Section 48 Civil Procedure Code with its twelve years limitation period within which a decree must be executed, and that this implies that the running of time is not suspended against a minor. We do not think this inference is sound.'

19. We are not persuaded that these remarks bear the interpretation that is sought to be put upon them Obviously, the expression 'We do not think this interence is sound' refers only to the inference drawn by the learned counsel for the petitioner that ILR 37 Mad 186 : (AIR 1914 (sic) 526) would lend support to the argument advanced (sic) him. That the learned Judges in AIR 1929 Mad 394, (sic) not intend to express any disagreement from ILR 37 (sic) 186: (AIR 1914 Mad 526) could be seen from the (sic) passage:

'Section 48 is not a rule of limitation and will not in (sic) respect override Section 7, Limitation Act, which definitely (sic) that time will not run. The application of Section 7 (sic) course is to the period of time set out in the Limitation (sic) and it is such a period, namely, that in Article (sic) with which we are here concerned. To the decision of a question under Section 48 C.P.C., the fact of minority is wholly irrelevant.'

20. On the other hand, they have said the Section 7 of the Limitation Act has reference only to the periods of time set out in the Limitation Act itelf. Further, they were not dealing with the applicability of Section 6 of the Limitation Act in the context of Section 48 C.P.C. We are not conceded that these observations run contrary to the (sic) contained in ILR 37 Mad 186 : (AIR 1914 Mad 526).

21. Our attention was net drawn to Kumara Venkata (sic) v. Velayuda Reddi, 27 Mad LJ 25 : (AIR 1915 (sic) 449), where one of the learned Judges (Sadasiv Aiyar, (sic) remarked that he found himself unable to agree with (sic) of the observations Contra in the case in ILR 37 (sic) 186 : (AIR 1914 Mad 526). It is not clear as to what (sic) in ILR 37 Mad 186 : (AIR 1914 mad 526) (sic) taken exemption to. In this context, we may refer to passage immediately preceding this remark of Sadasiva (sic) J., quoted hereunder:

'I am inclined to hold that the Civil Procedure Code not a 'Special Statute' but it is a general law of procedure usually passed in the same year as the Limitation Act, and that the Sections of the Limitation Act relating to exclusion of time and obtaining the benefit of the time spent in certain necessary acts and other similar provisions govern also the 12 years period of limitation provided for in Section 48 of the Civil Procedure Code.'

22. Perhaps, the observation in ILR 37 Mad 186: (AIR 1914 Mad 526) with which the learned judges were not able to agree relate to the question whether the Civil Procedure Code is a 'Special Statute' or a 'general Stattue'. Does not appear from 27 Mad LJ 25 : (AIR 1915 Mad 49) that Sadasiva Ayyar J., thought that Section 48 is controlled by Sections 6 and 7 of the Limitation Act. What we said there was that Section 48 C.P.C., was subject to Section 14 and 15 of the Limitation Act which specifically refer to exclusion of time. We are not satisfied that the decision contains any rule opposed to ILR 37 Mad 186 : (AIR 1914 Mad 526).

23. We will now consider Kandaswami v. Kannappa, : AIR1952Mad186 (FB), a Full Bench ruling of the Madras High Court on which reliance is placed by the learned counsel for the respondents for establishing the proposition that Section 48 is subject to Section 6 of the limitation Act. We are not persuaded that this case lends any countenance to his contention. The case under citation dealt with the question whether Section 48 C.P.C., permitted the exclusion of time contemplated by Section (sic) of the Limitation Act. The Full Bench was not called (sic) to consider the problem bearing on Section 6 of the (sic) Act read with Section 48. Section 15 is not (sic) in the same mould as Section 6. Section 15 or (sic) Limitation Act postulates.

(1) 'in computing the period of limitation prescribed for any suit or application for the execution of a decree, the institute 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.

(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.'

24. It is plain that this section talks of the period of limitation prescribed. It does not say 'prescribed by the stattue itself or in the third column of the first schedule.' Thus, this section does not contain any restriction as in the case of Section 6, which specifically limits it to the periods of limitation provided for in the third column of the first schedule. A comprison of the language of the two sections inevitably leads to the conclusion that legislature itself sought to make a distinction between a situation arising under Section 15 and that under Section 6 and it limited the scope of Section 6 to periods of limitation set out in the third column of the first schedule.

25. The importance of the language employed in Section 15 is emphasized by Rajamannar C.J., who delivered the opinion of the Full Bench in these words:

'The expression 'prescribed' in Section 15(1) of the Limitation Act does not mean 'prescribed by the first schedule' to the Act. It would include a case where a period of limitation is prescribed by any general stattue like the Code of Civil Procedure.'

26. It is manifest that the learned judges rested their conclusion on the terms of Section 15 which is quite different form those of Section 6.

27. The argument of Sri Venkatappayya Sastry that notwithstanding the last portion of Sub-section (1) of Section 6, that Section should govern all periods of limitations contained in any provision including Section 48 C.P.C., is based upon the following passage occurring at p. 442 of the report : AIR1952Mad186 (FB).

'I venture to think further that even if it be understood in the strictest sense, the period fixed by Section 48 of the code must be deemed to have become apart of the Limitation Act by a process of incorporation is articles 181 and 182. Column 1 of Article 181 speaks of an application for which no period of limitation is provided elsewhere in this schedule or in Section 48 of the Code of Civil Procedure 1908. Whether the word 'prescribed' in Section 15 would apply to periods of limitation provided by other statutes or not, it is clearly indicated by article 181 that the period fixed by Section 48 is in pari material with the periods of limitation provided in the schedules to the Limitation Act. Column I of Article 182 further supports this view. The period of twelve years mentioned in Section 48 of the code is a period of Limitation.'

28. On the basis of these remarks, Sir Venkatappayya Sastry urges that the learned Judges thought that Section 48 C.P.C., must be regarded as part of first schedule to the Limitation Act and if this Section is incorporated into that schedule, all the consequence of incorporation would flow from it, namely, that Section 6 is attracted to Section 48 also as in the case of the other periods of limitation mentioned in the third column of the first schedule.

29. We do not think that this argument is well founded. It should be remembered that these observations were made by the learned Judges in the context of the question whether the period of twelve years mentionedin Section 48 C.P.C., is a period of limitation or an absolute prohibition to which none of the provisions of the Limitation Act would apply. That becomes apparent from the last sentence of the passage extracted above and the succeeding passages. The impact of Section 6 on Section 48 C.P.C., was not present in their minds, since they were dealing only with the problem whether a decree-holder could seek to exclude the periods during which stay or injunction operated. If really the learned Judges thought that Section 48, C.P.C. is also susceptible laid down such a proposition and also would have overruled ILR 37 Mad 186 : (AIR 1914 Mad 526). We cannot, therefore,e read : AIR1952Mad186 (FB), as belittling ILR 37 Mad 186 : (AIR 1914 Mad 526).

30. In this context, we may also took at Section 14 of the Limitation Act which says:

'In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due deligence another civil proceeding, whether in a Court of first instance or in a Court of appeal against the defendant, shall be excluded where the proceeding is founded upon the same cause of action is is prosecuted in good faith in a Court which, from defect of jurisidciton, or other casue of a like nature, is unable to entertain it.'

31. The relevant language in this section, namely 'in computing the period of limitation prescribed for any suit, ...' is similar to that in Section 15. Here also, it is the period of limitation 'prescribed by law' and is not confined to 'periods of limitation indicated in Section 6.' We fell that the legislature has adivsely limited the scope of Section 6 to limitations prescribed by the first schedule. If we accept the argument of the learned counsel for the respondents, the starting point of limitation would be postponed with the result that after the disability ceases, the decree-holder will be entitled to a further period of twelve years. The learned counsel for the respondents is not prepared to go so far. He invites us to hold that the decree-holder would be entitled only to a further period of three years within the connotation of Article 181 or 182 of the Limitation Act. We fail to see how it could be limited to three years. It is only by incorporating Section 48 C.P.C., into the first schedule as suggested by Sir Venkatappayya Sastry that it (sic) attracted to Section 6 and if this is done, we say evitably to extend the limitation by a further period twelve years. We do not think that the language (sic) 6 permits us to read Section 48, C.P.C. in(sic) first schedule so as to give the advantage of a fresh (sic) which could be obtained by a minor with refeence (sic) first schedule.

32. It is not out of place to refer is this (sic) to Section 48 C.P.C., which makes an exception (sic) case of certainkinds of decrees. If really the (sic) intended to give the benefit of the extended period limitation ot minors and other persons suffering (sic) disability falling within the ambit of Section 6 of the Limitation Act, it would have found place in Section 48. A reading of Section 48 shows that it is a self-(sic) code in regard to the topics dealt with in it. We that this gives an indication that except in reg(sic) matters set out in Sub-section (2), it affects the other of decrees.

33. On a consideration of the language of (sic) the Sections and the decisions of the various High Court (sic) we hold that ILR 37 Mad 186: (AIR 1914 Mad (sic)) contains sound law and it does not require any (sic) tion. This authority has not in any way been (sic) the Full Bench judgment of the Madras High Court : AIR1952Mad186 (FB). This the field for nearly half-a-century and barring decisions of the Bombay High Court referred (sic) there has been no demur to the principle adumbr(sic) 37 Mad 186: (AIR 1914 Mad 526) in any High are, therefore, not inclined to refer the matter (sic) Bench as requested by Sri Venkatappayya Sastry (sic) Counsel for the respondents.

34. If the doctrine of ILR 37 Mad 186: (AIR (sic) Mad 526) is applied to the instant case, the (sic) petitionout of which this appeal has arisen must (sic) missed as time-barred under Section 48 C.P.C.

35. In the result, the appeal is allowed and the of the executing Court restored. But, in the curcumstance of the case we direct the parties to bear their own (sic) throughout.


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