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P.V. Ittey of Kochuparangottu Veettil, Kodimatha Kara Vs. Mani of Viralasseril - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberSecond Appeal Nos. 606 and 607 of 1959
Judge
Reported inAIR1964Ker134
ActsLimitation Act, 1908 - Sections 15; Code of Civil Procedure (CPC) , 1908 - Sections 51
AppellantP.V. Ittey of Kochuparangottu Veettil, Kodimatha Kara
RespondentMani of Viralasseril
Appellant Advocate M.P. Varghese, Adv.
Respondent Advocate S. Subramonia Iyer, adv.
DispositionAppeal dismissed
Cases ReferredKundo Mai v. Firm
Excerpt:
- p. govindan nair, j.1. these two appeals arise from orders passed in execution of the decrees passed in o.s. nos. 1/5 or 116 and 216 of 117 of the kottayam munsitt's court, me appellant in s.a. no, 606 of 1959 is the third detendant in o.s. no. 175 and the same person figuring as me second defendant in o.s. no. 216 is the appellant in s.a. no. 607 of 1959. the question that arises for decision is whether the decrees in these two cases are incapaore of execution due to the bar of limitation. the decree in o.s. no. 175 was passed on 15-12-1941 and the decree in o.s. no. 216 on 27-5-1942. the execution petitions filed in the two cases were on 9-8-1956. these petitions admittedly were filed twelve years after the rates of the respective decrees and the contention, therefore, was urged by the.....
Judgment:

P. Govindan Nair, J.

1. These two appeals arise from orders passed in execution of the decrees passed in O.s. Nos. 1/5 or 116 and 216 of 117 of the Kottayam Munsitt's court, me appellant in S.A. No, 606 of 1959 is the third detendant in O.S. No. 175 and the same person figuring as me second defendant in O.S. No. 216 is the appellant in S.A. No. 607 of 1959. The question that arises for decision is whether the decrees in these two cases are incapaore of execution due to the bar of limitation. The decree in O.S. No. 175 was passed on 15-12-1941 and the decree in O.S. No. 216 on 27-5-1942. The execution petitions filed in the two cases were on 9-8-1956. These petitions admittedly were filed twelve years after the rates of the respective decrees and the contention, therefore, was urged by the appellant that execution cannot be had in either of the cases. This contention was repelled both by the execution court and by the lower appellate Court.

2. The ground on which this contention was negatived by the execution Court was that the appellant was concluded by the orders passed in the two cases respectively on 10-3-1956 and 3-1-1956 when prior execution petitions dated 15-9-1955 were taken out in the two cases. In the order dated 10-9-1956, the reason given is this:

'It is seen that the execution was stayed from O.S. 149 of 1124 and hence there is no limitation.'

The order dated 30-1-1955 passed in O.S. no. 216 19 more elaborate and is in these terms:

'The contention that the decree is barred by limitation is not tenable, because the execution of the decree at least as against attached property was stayed from O.S. 149 of 1124. Since the decree-holders' discretion In executing the decree in any manner that suits mm cannot be questioned in stay (sic) In respect of the attached property would have limitation in respect of the whole execution proceedings.'

This order is not very clear, but it appears to me that what it purports to say is that the decree having been stayed at least in regard to execution being proceeded with against the attached properties, Section 15 of the Limitation Act is attracted and the decree-holder is entitled to the exclusion of the time during which the injunction was in force. This view is apparently based on the view taken by the Trravancore High Court in a number of cases start ing from the decision reported in Parameswaran v. Kanamma Pillai, 14 Trav LJ 501 and followed in the decisions reported in Parameswaran unnithan v. Narayanan, is Irav LJ 792, Kochan v. Govinda Pilial, 18 Irav LJ 816 and Parameswaran Pilial v. Rudrayani Pilial, 31 Trav LJ 734. No decision either of the travancore, travancore-uocmn or of the Kerala High Court differing from the views expressed in these decisions has been brougnt to my notice during the course of the arguments.

But counsel for the appellant relied mainly on a runing of the Calcutta High Court reported in Lata Baijnath prosad v. Nursingdas Guzrati, AIR 1958 Cal 1 and submitted that In view of the fact that earlier execution applications dated 15-9-1955 filed in the two cases contained a prayer only for proceeding against the attached property, the question whether personal execution could be had against one appellant in these cases was not the subject matter or enquiry and could not have been determined by the prior orders dated 30-1-1956 and 10-2-1958. He therefore, urged relying on the principles stated in the Calcutta aecition that Section 15 can operate only as a partial stay Pre venting the execution of the decree in so tar as that portion of the decree which is stayed is concerned, his argument, therefore, is that assuming that execution can had against the attached properties, the aecree-noider could not be permitted to proceed against the person or the appellant. He is fully supported in this submission by the decision of the Calcutta High Court. This, however, is Dot the view taken by the Travancore High court and that teems to have been the law in the area from which has case has arisen for over 35 years now. There is no just fication for limiting the wording of Section 15 or for adding words to the section.

In the decision reported in Kundo Mai v. Firm uaman Bam, AIR 1940 Lah 75 the view was taken that Section 10 can be attracted only in cases where mere has been an absolute and complete stay of execution of the entire decree. Consistent with that, it was held that when there was a partial stay, there can be no exclusion or time under Section 15 if the wording of Section 15 is understood in the manner in which it was understood, it must certainly follow that Section 15 cannot have any application when there is a partial stay of the decree. This extreme view did not, however, find favour with the Calcutta High court and the view was expressly dissented from in the decision reported In AIR 1958 Cal 1. Their Lordships turner neru that the section should be read as to mean that there will be an exclusion of time regarding that part of the decree which has been stayed and only as regards that part. This conclusion, I think, is based more on what me court considers Just or unjust than on the wording of me section. But it ignores the other principle which has been adopted by the Travancore High Court that me decree-holder's discretion to execute the decree in any manner he deems fit should not he fettered. To compel the decree-holder to adopt a particular mode of execution is to take away the discretion vested in him. I do not think this Is warranted, in any view of the maner, a cannot be gainsaid that more than one conclusion is possible as is evident from the conflict of decisions on this point. As I said earlier, the Travancore High court had taken the view that a partial stay of execution of decree enaores the decree-holder to claim the benefit conferred under Section 15 by excluding the time during which the injunction was in force. I think I must adhers to the same view and dismiss these appeals and I do so.

3. In the light of what is stated above, it is unnecessary to consider whether the orders passed on 10-2-1950 and 30-1-1956 operate as res judicata to prevent the appellant from raising these contentions.

4. Counsel for the appellant has been very fair and limited his arguments to the question that personal execution should not be allowed against the appellant, it cannot be said that the arguments that he advanced are unsupport ed by judicial opinion. I therefore consider that the parties must be directed to bear their costs throughout in these proceedings end order accordingly.


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