Skip to content


Appicha Asari Unni Asari Vs. Vairavan Asari Sasthavasari Nadooprambil and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberS.A. No. 332 of 1969
Judge
Reported inAIR1975Ker79
ActsKerala Agriculturists Debt Relief Act, 1958 - Sections 3, 4(5) and 10; Limitation Act, 1908 - Article 182(5)
AppellantAppicha Asari Unni Asari
RespondentVairavan Asari Sasthavasari Nadooprambil and ors.
Appellant Advocate K.N. Karunakaran, K.G. Devarajan and M.V. Bose
Respondent Advocate T.M. Cherian, Adv.
Cases ReferredDassi v. Lekhan Chandra Sen
Excerpt:
.....of time which commenced from the date of the decree on 15-10-1955 and that the ban ceased from 14-7-1961 and from that date the running of time continued. but there can be little doubt that the debt therein will take in a decree debt as well. this has been clearly stated by sir reymond evershed m. it was filed nearly 11 years after the decree and is clearly barred......due on 14-7-1961. the appellant before us did not make any attempt to pay any amount towards the decree debt. it was therefore clear that the proviso that we have read would have come into operation on14-7-1961 and the entire decree was executable on and from that date.5. the question mooted before us is that the effect of the act is only at best to arrest the running of time which commenced from the date of the decree on 15-10-1955 and that the ban ceased from 14-7-1961 and from that date the running of time continued. it was therefore urged by counsel for the appellant that taking the period from15-10-1955 to 14-7-1958 and the period after 14-7-1961 into account it must be found out whether three years had expired -- of course in the absence of any payment, acknowledgement or.....
Judgment:

Govindan Nair, C.J.

1. The first defendant in O. S. No. 245 of 1955 of the Munsiff's Court, Kanjirappalli is the appellant, the first respondent being the plaintiff decree-holder therein and the second respondent the second defendant in the suit. The decree in the case was passed on 15-10-1955. The first execution application was on 8-9-1966. The decree wasfor money and the execution petition having been filed long after the date of the decree, very much more than three years after the petition was dismissed by the execution court. In appeal the decision of the execution court was reversed and this appeal is directed against the appellate judgment.

2. The case has been referred to a Full Bench in view of the apparent conflict between the rulings of this court in Ahammed alias Kunju v. Achutha Menon, 1964 Ker LT 592 and Krishna Pillai v. Parameswaran Pillai, 1966 Ker LT 1031.

3. The Kerala Agriculturists Debt Relief Act, 1958 (hereinafter referred to as the Act) came into force on 14-7-1958. This Act permitted the payment of debts falling within the purview of that Act in instalments (Section 4 of the Act). It imposed a ban on execution of decrees and institution of suits for a period of six months from the date of the commencement of the Act (Section 3 (1) of the Act). If default is made in instalments the creditor shall be entitled to recover the same by executing the decree (Section 4 (5) read with Section 10 of the Act). The proviso to Section 4 (5) further enacted:

'Provided that if default is made in payment of six consecutive instalments the debtor shall not be entitled to the benefits of the provisions of Sub-section (2) and Sub-section (3) and the whole debt together with such interest as may have accrued thereon less any amounts that have already been paid shall be forthwith payable.'

4. The sixth instalment fell due on 14-7-1961. The appellant before us did not make any attempt to pay any amount towards the decree debt. It was therefore clear that the proviso that we have read would have come into operation on14-7-1961 and the entire decree was executable on and from that date.

5. The question mooted before us is that the effect of the Act is only at best to arrest the running of time which commenced from the date of the decree on 15-10-1955 and that the ban ceased from 14-7-1961 and from that date the running of time continued. It was therefore urged by counsel for the appellant that taking the period from15-10-1955 to 14-7-1958 and the period after 14-7-1961 into account it must be found out whether three years had expired -- of course in the absence of any payment, acknowledgement or execution applications, orders thereon and dismissals thereof -- and that if three years had expired, the execution application was beyond the period provided by Article 182 (5) of the Indian Limitation Act, 1908.

6. Counsel for the respondents contended that the original decree gottransformed on the passing of the Act into an instalment decree and that when six consecutive instalments were defaulted by the judgment-debtor, the converted instalment decree got wiped out and a new decree by virtue of the proviso to Sub-section (5) of Section 4 came into existence for the first time, on 14-7-1961. This it was submitted is clear from the provisions of the Act and if the decree that came into existence on 14-7-1961 is thus a new decree, there can be no question of limitation as the application was filed on 8-9-1966 and the new Limitation Act (The Indian Limitation Act, 1963) having come into force on 1-1-1964 before the expiry of three years from 14-7-1961, an execution application could be made within 12 years and such application was not therefore barred by limitation. Reliance has been placed mainly on two decisions of this court in Mammad v. Abdul Salam, 1963 Ker LT 283 and 1966 Ker LT 1031. The earlier case is by a Single Judge of this court and the same Judge has written the judgment in the later case which is a Division Bench case. The facts of the case in 1963 Ker LT 283 are similar to the facts of the case before us excepting that if the period between 14-7-1958 date of commencement of the Act and 14-7-1261 the date of expiry of the sixth instalment under the Act is excluded there will be no bar of limitation for the execution application that had been filed in that case. But it was contended by counsel who appeared for the decree-holder appellant that by virtue of the provisions in the Act the decree had got converted into an instalment decree and this position seems to have been accepted in the judgment. The game view has also been taken in the Division Bench case in 1966 Ker LT 1031. The decree-holder therein only attempted to execute the decree for the amounts of the 2nd. 3rd, 4th and 5th instalments. The judgment-debtor had paid the first instalment. The execution petition having been filed before the date of the 6th instalment (that is before the expiry of three years from the date of each of the defaulted instalments) there was no question of the application being barred with reference to any of the defaulted instalments and we are in respectful agreement with that view taken in the decision. However there are observations in the judgment which have encouraged the respondents to stretch the decision further and contend that a new decree had come into being on 14-7-1961. No decision can be taken to be an authority for the proposition which did not arise in the case.

7. Since elaborate arguments have been advanced by counsel for the decree-holder we think it necessary to refer to Sections 3 (1) and (2), 4 (1), 4 (2) and 4 (5)with the proviso and Section 10 of the Act. We shall extract these sections.

'3. Bar of Applications -- (11 No application for execution of a decree in respect of a debt shall be made against any agriculturist in any court before the expiry of six months from the commencement of this Act.

Explanation 1 -- Where a debt is payable by an agriculturist jointly with a non-agriculturist, no application of the nature mentioned in this sub-section shall be made or continued either against the non-agriculturist or against the agriculturist before the expiry of the period mentioned in this sub-section.

Explanation II -- For the purposes of this Act, a decree shall be deemed to be a decree in respect of a debt notwithstanding that other reliefs are granted in such decree:

Explanation III -- Nothing in this section shall debar a decree-holder from enforcing reliefs other than in respect of a debt, where the decree contains independent reliefs.

Explanation IV -- Where the decree passed is a conditional decree, and the conditions imposed come within the definition of debt, breach of the condition shall not be deemed to have taken place so long as the judgment-debtor acts in accordance with the provisions of this Act.

(2) Where a creditor files a suit for recovery of a debt before the expiry of six months from the commencement of this Act or after the agriculturist has paid or deposited the sums and instalments specified in Section 4 and during the period when he is so entitled to pay, the Court shall in decreeing the suit direct the plaintiff to bear his own costs and to pay the costs of the defendant who is an agriculturist, except in cases where the claim would have been barred by limitation had no such suit been filed or when a debt is jointly due from an agriculturist and non-agriculturist:

Provided that nothing contained in this sub-section shall be a bar to the court passing any order as to costs as between the plaintiff and other defendants who are not agriculturists.

4. Payment of debt in instalments. --(1) Subject to the provisions of Sub-section (5), notwithstanding anything contained in any law or contract or in any decree or order of Court, any debt may be discharged in the manner specified in Sub-sections (2) and (3).

(2) If any debt is repaid in seventeen equal half yearly instalments together with interest at the rate specified in Sub-section (1) of Section 5 on the principal debt outstanding at the time of each payment, the whole debt shall be deemed to be discharged:

Provided that in the case of debts due to a banking company as defined in the Banking Companies Act, 1949, the number of instalments in which the debt shall be repaid shall be twelve where the debt does not exceed one thousand and five hundred rupees and eight where it exceeds one thousand and five hundred rupees.

(5) Where any instalment of any debt is not paid on the due date the creditor shall be entitled to recover the same as provided in Section 10 but the debtor shall not forfeit the benefits conferred by this section:

Provided that if default is made in payment of six consecutive instalments the debtor shall not be entitled to the benefits of the provisions of Sub-section(2) and Sub-section (3) and the whole debt together with such interest as may have accrued thereon less any amounts that have already been paid shall be forthwith payable'.

'10. Suits against debtor -- (1) Where in respect of a decree for debt passed before the commencement of this Act, a debtor fails to make any one of the payments specified in Sub-sections (2) and (3) of Section 4 or in the order on the application made under Section 8, the decree-holder shall be entitled to execute the decree in respect of the instalment which is in arrear.

(2) In any suit filed after the commencement of this Act, for recovery of a debt, the Court in decreeing the suit shall provide for the immediate payment of such instalment or instalments as would have become due under the provisions of Sub-sections (2) and (3) of Section 4 and the balance in further instalments as specified therein.

(3) Where in any suit for recovery of a debt pending at the commencement of this Act, the debtor claims to be an agriculturist, the Court shall, if the debtor is an agriculturist, pass a decree for immediate payment of such instalment or instalments as would have become payable under the provisions of Sub-sections (2) and (3) of Section 4 and the balance in further instalments as specified therein.

(4) Where in any suit to recover a debt or in any application for the execution of a decree therefor the debt is payable by an agriculturist jointly with a non-agriculturist the Court shall pass a decree or make an order for the payment of the debt found due from the agriculturist as provided in Sub-sections (2) and(3) of Section 4 and make such provision in the decree or order against the non-agriculturist as the circumstances of the case may warrant.'

8. There is no specific ban impos-ed by the statute regarding the execution of the decree. At the same time by necessary implication from the wording of Sections 4 (5) and 10 it is clear that the execution of the decree as such after 14-7-1958 is impossible. This state of affairs will continue till such time as the judgment-debtor in a given case had committed six consecutive defaults. If and when such an event occurs the whole decree will become executable. The decree that is to be executed is not a decree created by the statute, but the decree that had been passed in relation to a debt. The proviso to Sub-section (5) of Section 4 does not in terms refer to a decree because the Act must apply to a debt whether it had matured into decree or not. The proviso therefore uses the word debt: but there can be little doubt that the debt therein will take in a decree debt as well. The words in the proviso 'whole debt' must certainly mean the whole decree. So understood the proviso will read as 'the whole decree together with such interest as may have accrued thereon less any amounts that have already been paid shall be forthwith payable'. This is not by a statutory provision providing for a new decree coming into existence. The provisions regarding interest in the statute will of course apply and the decree will necessarily get amended to that extent. Nevertheless the decree that has to be executed is the decree that had been passed and not any created by the statute. In the light of these provisions we cannot postulate a case of the original decree that had been passed before the coming into force of the Act having been wiped out by the advent of the Act and then a new decree coming into existence after the default of six consecutive instalments by the judgment-debtor. The decree can get wiped out only in the manner provided by Section 4 (2) by payment of the decree debt in instalments as provided by the statute. Till that happens the decree remains though the amount due under the decree might get diminished even by irregular and intermittent payments made by the judgment-debtor under the Act. If he manages to default not more than the five instalments due under the Act the whole decree will never become executable but the time for execution of the defaulted instalments will run from the due dates of those instalments. And there is no ban for the execution of the decree so far as these instalments are concerned. In such a case the attempt being to execute only for the amounts that fell due under each instalment the ques-tion of limitation will have to be determined as stated above. But when ths question is whether the whole decree could have been executed the principle that has been applied in a number of decisions oi this court is that the decree-holder has no obligation to execute the decree in part and that he is entitled to wait till such time the whole decree became executable and the waiting period can be excluded for the purpose of limitation. It has been so held by this court in Valayudhan v. Gokulan, 1964 Ker LT 600. This decision was followed by another Division Bench of this Court in the decision in Kunhimutty v. Moideen-kutty, 1968 Ker LT 580. One among us took the same view in the decision in Unnikrishna Menon v. Ramakrishna Pil-lai, 1971 Ker LT 171 and another Division Bench very recently in Varghese v. Ouseph, 1974 Ker LT 553 has come to the same conclusion. With great respect we think that these decisions lay down the correct principle. It may perhaps be useful to extract a passage from the iudg-ment in 1968 Ker LT 580. We shall read paragraphs 3, 4, 5 and 6 of the judgment.

'3. That principle has been stated in the decision in Bell v. Gosdan, reported in (1950) 1 All ER 266. Halsbury's Laws of England Vol. 24 page 199 has summarised the position thus:

'If an enactment renders a payment irrecoverable for a certain period, there may be a consequence, in default of express statutory provision, that the running of time under the appropriate limitation enactment is suspended while the payment is irrecoverable.'

4. This passage has been relied on by this court in a similar situation in 1964 Ker LT 600. This principle we think must govern this case. We find that a similar view has been taken by Beamont Chief Justice in Govindnaik Gurunath-naik Kalghatgi v. Basawannowa Paru-tappa Karajgi, reported in AIR 1941 Bom 203. His Lordship chose to rest the decision on the suspension of the running of time and had relied on the decision of the Calcutta High Court in Lakham Chundar Sen v. Madhusudan Sen, report ed in (1908) ILR 35 Cal 209. This decision of the Calcutta High Court has been approved by the Privy Council in Nritya-moni Dassi v. Lekhan Chandra Sen reported in 43 Cal 660 = (AIR 1916 PC 96).

5. The principle is that when by a statute it has become impossible to take action for the recovery of a debt whether it be by instituting a suit or by filing an execution application for the realisation of the amount decreed, the period of limitation prescribed by the Law of Limitation ceases to run and remains suspended till that disability is removed. This has been clearly stated by Sir Reymond Evershed M. R. in (1950) 1 All ER 266.

6. After referring to Section 17 of the Limitation Act which reads thus: 'No action shall be brought to recover arrears of rent after the expirationof six years from the date on which the arrears become due.'

the Master of the Rolls expressed the view that the inhibition introduced by the Regulation of 1940 which was considered in the judgment had the effect of suspending the running of time under Section 17 of the Limitation Act, 1939 just read. He expressed his views thus:

'The rent was due in 1940, it is argued, and it remained due although during the period of the so-called moratorium it could not be recovered by action as the result of the regulation, and Section 17 states in unequivocal terms that after the expiration of six years no action can be brought. In my judgment, the necessary effect of the regulation, which has, of course, the effect of an act of Parliament, when set beside the Limitation Act, is that, so long as it applied and the rent was irrecoverable by its terms the running of time under Section 17 must be treated as suspended. The matter may be tested in this wav. Supposing this evacuation period was some fixed period, as, for example, seven years. The regulation would then provide in effect, 'during the seven years period of the evacuation no action shall be brought to recover rent'. As a necessary implication from that language, when that period was over, the ban on the bringing of an action would cease, and that in turn necessarily involves that the running of the limitation period under the statute must be regarded as having been suspended for that period:'

9. We cannot accept the argument that on the coming into force of the Act the decree got converted into an instalment decree and that a new decree thereafter came into existence on 14-7-1961 when all the first six instalments had been defaulted. The view taken in (1964) Ker LT 592 with respect is the correct view.

10. What is sought to be executed is the decree passed on 15-10-1955. No submission was made before us that the execution application for executing that decree was not filed out of time. It was filed nearly 11 years after the decree and is clearly barred. We therefore set aside the judgment under appeal and dismiss the execution petition. We direct the parties to bear their costs throughout.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //