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Padmanabhan Mathevan Vs. Ramaswami Pillai Mathevan Pillai - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberA.S. No. 113 of 1957
Judge
Reported inAIR1959Ker5
ActsLimitation Act, 1908 - Schedule - Article 182 and 182(5); State Laws Act, 1951 - Sections 6; General Clauses Act, 1897 - Sections 6; Travancore Limitation Act, 1087 - Schedule - Article 166
AppellantPadmanabhan Mathevan
RespondentRamaswami Pillai Mathevan Pillai
Appellant Advocate M. Madhavan Nair, Adv.
Respondent Advocate N. Anantakrishna Iyer, Adv.
DispositionAppeal allowed
Cases ReferredJoseph v. Jesayya
Excerpt:
.....- act of 1087 allowed larger limitation period in two cases - firstly for registration of certified copy of decree and secondly for entering or filing of memorandum - indian act limited concession to first case only - under proviso to section 6 registration of decree effected by entering or filing memorandum of decree under repealed act of 1087 to be deemed to be done under corresponding indian registration act by registration of certified copy of decree - decree would answer requirement of article 182 for purpose of indian limitation act for purpose of larger period of six years - application for execution filed by appellant in time - appeal succeeds. - - this was precisely the argument which was sought to be advanced in lekshiminarasimham v. jesayya, 1955 ker lt 602: (air 1955 sc..........of three years alone is now available under the different wording of article 182 of the repealing indian limitation act. the relevant portions of the two articles are as follows :art.166. description of applicationperiod of limitation.for the execution of adecree or order of any civil court not provided for by section 41 of the codeof civil procedure.threeyears; or,where a certified copy of the decree or order has been registered, or a memorandum of the decree or orderrelating to immovable property is entered or filed as required by s. 15 ofregulation ii of 1087, six years.art.182 for the execution of a decree or order of any civil court not provided for by article 183 or by s. 48 of the code of civil procedure, 1908.threeyears; or,where a certified copy of the decree or order has been.....
Judgment:

Varadaraja Iyengar, J.

1. The matter arises in execution of the decree, on objection raised by the respondent -- 5th defendant, that the execution of the decree is barred by limitation, as regards personal execution for realisation of the mesne profits, granted under the decree. The court below upheld the objection and hence this appeal by the assignee-decree-holder.

2. The decree set aside a mortgage which stood in favour of the 5th defendant in respect of plaint Item No. 3 and allowed recovery of the same, with past and future mesne profits. The decree was passed on 4-3-1121. On 18-10-1123, the first execution application was filed, praying inter alia for recovery of the mesne profits but only 'as a charge against the properties'. The prayer for personal execution against the 5th defendant was for the first time made in the second execution petition dated 22-6-1953, but as by then, more than three years had elapsed from the date of the decree the court below held such prayer was barred by limitation under Article 182. The assumption, apparently, was that the portion of the decree which granted mesne profits amounted to a separate decree by itself and limitation therefore in execution must be computed on its own basis apart from the rest. This was precisely the argument which was sought to be advanced in Lekshiminarasimham v. Suryanarana, AIR 1948 Mad 246 (A) and Govindarajachari, J. with whom Gentle C. J. agreed, held rejecting the contention:

'There was only one decree within the meaning of Article 182 notwithstanding that it included several reliefs based upon distinct causes of action and that it was open to the decree-holder to rely on Clause (5) and ask for limitation to be calculated from the dates of the final orders in the previous execution petitions notwithstanding that those petitions sought execution of reliefs other than that sought in the subsequent one.'

Learned Judges referred to and relied upon the earlier decision in Kanmammal v. Balakrishna Tharvady, AIR 1935 Mad 557 (B) where the discussionprincipally turned on Article 182 (2) of the Limitation Act, and the following observations were made:

all cases, what Article 182(2) of the Limitation Act refers to is a decree, viz., one decree, and it is not permissible for Courts in execution to look into the matter and say that, as there are several reliefs' which are severable, the decree, although normallyone decree consists of several decrees'.

Our attention has been drawn to Krishna Kammathy v. Kunjan AIR 1951 Trav-Co 184 (C) where aft execution application for attachment and sale or certain properties and filed after four years of a previous application directed against another set of properties, was held to be a fresh application and this was held to be barred. The facts of that case are not clear from the report and there is also no discussion and it is probable that the court was then faced with the 12 years' rule also under Section 41 of the Travan-core Civil Procedure Code corresponding to Section 48 of the Indian Civil Procedure Code. For, there could be no question of a fresh application if the previous one was still pending ana 12 years had not elapsed from date of the decree. Anyhow that aspect does not arise here. It would follow therefore that the conclusion of the court below that execution was barred is on the basis it adopted, unsustainable.

3. Learned counsel for the respondent then said that execution must be held to be still barred in this case, because the second execution application was filed more than three years after, though within six years of the disposal of the first. The argument is that even though the decree related to immovable property and a memorandum thereof was entered or filed as required by Section 15 of the Travan-core Registration Act II of 1087 so as to attract the larger period of limitation of six years under Article 166 of the Travancore Limitation Act (VI of 1100) the smaller period of three years alone is now available under the different wording of Article 182 of the repealing Indian Limitation Act. The relevant portions of the two Articles are as follows :

Art.166. Description of application

Period of limitation.

For the execution of adecree or order of any Civil Court not provided for by Section 41 of the Codeof Civil Procedure.

Threeyears; or,where a certified copy of the decree or order has been registered, or a memorandum of the decree or orderrelating to Immovable property is entered or filed as required by S. 15 ofRegulation II of 1087, six years.

Art.182 For the execution of a decree or order of any Civil Court not provided for by Article 183 or by S. 48 of the Code of Civil Procedure, 1908.

Threeyears; or,where a certified copy of the decree or order has been registered, six years.

The Limitation Act of Travancore thus allowed the larger period in the two cases (i) of registration of a certified copy of the decree and (ii) the entering or filing of a memorandum thereof, while the Indian Act limited that concession to the first case alone.

4. Now the Part B States Laws Act III of 1951, which made the Indian Limitation Act and the Indian Registration Act applicable to the State, said : Section 6.

'If immediately before the appointed day, there is in force in any Part B State any law corresponding to any of the Acts or Ordinances now extended to that State that law shall, save as otherwise expressly provided in the Act, stand repealed;

Provided that the repeal shall not affect:-- (a) The previous operation of any law so repealed or anything duly done or suffered thereunder, or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed, or

(d) any investigation, legal proceeding or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture or, punishment may be imposed as if this Act had not been passed :

Provided further that, subject to the preceding proviso, anything done or any action taken (including any appointment or delegation made, notification, order, instruction or direction issued, rule, regulation, form, bye-law or scheme framed, certificate obtained, patent, permit or license granted or registration effected under any such law shall be deemed to have been done or taken under the corresponding provision of the Act or Ordinance as now extended to that State, and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under the said Act or Ordinance.'

The first proviso is in negative terms and appears to have been taken from Section 6 of the General Clauses Act X of 1897 while the second Proviso adopts a 'deeming' provision quite contrary to what is contemplated under that section. Under the General Clauses Act the position in respect of matters covered by it would have to be determined as if the repealing Act had not been passed while under Section B of the Part B States Laws Act, the position-so far as the positive portion is concerned-- has to be judged as if the repealing Act were in force at the earlier relevant date. The provision here will therefore have to be taken lo be self-contained and indicative of the intention to exclude the application of Section 6 of the General Clauses Act. See Indira Sohanlal v. Custodian of Evacuee Property, Delhi (S) AIR 1956 SC 77 (D).

5. But this rule of construction does not materially affect the case of the appellant herein. For, under the second Proviso of Section 6 of the Central Act III of 1951, registration of the decree effected by the entering or filing of the memorandum of the decree under the repealed Travancore Law shall be deemed to be done under the corresponding Indian Registration Act, that is, by the only process available under it, viz., that of registration of the certified copy of the decree. If so, the decree will answer the requirement of Article 182 of the Indian Limitation Act for purpose of the larger period of six years.

Where the contention of the learned counsel errs, is in assuming that the 'deeming' provision must apply only to the particular process which had been adopted for the registration of the decree under the repealed law. And so, the argument proceeded, in the absence of such process under the Indian Registration Act, there was no registered certified copy within the scope of Article 182. Indeed the conclusion we have arrived at as above has been already reached in the Bench ruling in -Joseph v. Jesayya, 1955 Ker LT 602: (AIR 1955 SC 186) (E), though with the aid of Section 6 of the General Clauses Act as well. But as we said that distinction was immaterial. The further aspect stressed by learned counsel, thus also fails.

6. In the result the appeal succeeds and theapplication for execution filed by the appellant isheld to be in time. The court below will take itback on the file, and dispose of it in the light of thevest of the objections raised by the judgment-debtor. The appellant will get his costs of this courtfrom the respondent.


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