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Shankarlal Kishanlal Vs. Chandulal and Sons - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Misc. Appeal No. 102 of 1960
Judge
Reported inAIR1962MP366; 1962MPLJ167
ActsLimitation Act, 1908 - Schedule - Article 182
AppellantShankarlal Kishanlal
RespondentChandulal and Sons
Appellant AdvocateS.R. Joshi, Adv.
Respondent AdvocateR.C. Kale, Adv.
DispositionAppeal dismissed
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. .....the application is to enforce any payment which thedecree or order directs to be made at a certain date) such date.6. it seems from these provisions that the decree-holder can apply for execution claiming to compute the period of limitation for such application either under clause (1) or under clause (2) or clause (7). if the application for execution is within three years. from either of them the claim cannot be held to be barred by time. it is no doubt true that in normal cases the date of payment indicated in the decree would be subsequent to the decree. but where the decree is passed oh the basis of an award which mentions dates which are prior to the decree and such award is made the rule of the court, the claim of the decree-holder may be beyond three years from the date of payment.....
Judgment:

V.R. Newaskar, J.

1. This appeal arises out of execution proceedings and the only point which arises for considerationis regarding limitation on the following facts.

2. The respondent decree-holder obtained a decree for money on the basis of an award on 17-2-1954, Under the terms of the award which was made the rule of the court on the above-mentioned date the amount of the decree was made payable by stated instalments starting from Sravan Sudi 1 Samvat Year 2007 i.e. earlier than the date of the decree. There was a default clause which provided for realisation the whole amount at once on the occurrence of the default. The last or the final instalment was payable on Savari Sudi 1 Samvat Year 2011. An appeal was preferred against the decree on the award which was dismissed on 27-4-1956. The present execution was thereupon filed on 18-4-1959. Contention raised on behalf of the judgment debtor was that since there was default in paying the 1st instalment on Savan Sudi 1 Samvat Year 2007 the decree has become barred by time. The Court below held that Clause 2 of Article 182 in the last column of Limitation Act applied and the execution was not barred.

3. In this appeal the same contention is repeated.

4. It is contended that even if we ignore the default clause on the ground that the same is for the benefit of the decree-holder yet the claim is barred even from the date on which the last instalment is payable i.e. from Savan Sudi 1 Samvat Year 2011, the date of filing of this execution petition being 18-4-1959.

5. In order to appreciate this contention it will be material to refer to the relevant provisions in Article 182 of the Limitation Act.

Article 182 :--

For the execution of a decree or order of any Civil Court notprovided for by article 183 or by section 48 ofthe Code of Civil Procedure, 1908 (V of 1908).

Three years: - or wherea certified copy of the decree or order has been registered, six years.

1.

The date of the decree or order, or

2.

(where there has been an appeal) the date of the final decree ororder of the Appellate Court, or the withdrawal of the appeal, or....................... .........................

7.

(Where the application is to enforce any payment which thedecree or order directs to be made at a certain date) such date.

6. It seems from these provisions that the decree-holder can apply for execution claiming to compute the period of limitation for such application either under Clause (1) or under Clause (2) or Clause (7). If the application for execution is within three years. from either of them the claim cannot be held to be barred by time. It is no doubt true that in normal cases the date of payment indicated in the decree would be subsequent to the decree. But where the decree is passed oh the basis of an award which mentions dates which are prior to the decree and such award is made the rule of the Court, the claim of the decree-holder may be beyond three years from the date of payment indicated in the award. In that case he can apply within three years from the date of the decree that is the date on which the award is made the rule of the Court. Where the decree. Is appealed against and the appeal is decided later on it is the date of the decision in appeal to which the decree-holder can look for bringing the claim for execution within time. There is nothing in Article 182 to suggest that where Clause 7 of Article 182 of the Limitation Act can be applied benefit under other clauses is excluded. Such a suggestion may sometimes lead to anomaly especially in award cases that the claim for execution will become barred even before an executable decree is obtained from an appropriate court. Such cannot be the intention of the Legislature.

7. I therefore agree with the decision of the Courtbelow and dismiss the appeal with costs.


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