Skip to content


Karanakodam Gowdasaraswatha Brahmana Samajam Vs. Paulo Ouseph - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 265 of 1956
Judge
Reported inAIR1957Ker108
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48(1)
AppellantKaranakodam Gowdasaraswatha Brahmana Samajam
RespondentPaulo Ouseph
Advocates: Ramashenoi,; K.A. Mahammad and; R. Raya Shenoi, Advs
DispositionAppeal allowed
Cases ReferredOudh Commercial Bank Ltd. v. Bind Basni Kuer
Excerpt:
- - their lordships, however, held that they were not in agreement with that view and that there could be no restriction of the parties' liberty of contract with reference to their rights and obligations under the decree and that if they did contract upon terms which had reference to and affected the execution, discharge or satisfaction of the decree, such a matter clearly fell urider section 47, civil p......becomes barred only on the expiration ofl2 years from 'the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree'. as pointed out in chitaley's commentary on the code of civil procedure, 1908, (vol. 1, p. 630) 'there is a conflict of opinion on the question whether an order of an executing court can operate as a subsequent order under this section.'4. the facts in 36 cochin 865 (a), were similar to those before me. in that case krishnaswami iyen-gar, c. j., -- after a detailed review of the case law on the subject -- came to the conclusion that the order of an executing court can also operate as a subsequent order under section 48(1)(b) of the code of civil procedure, 1908.5. in a more recent case -- laxmi lal v. onkar.....
Judgment:

M.S. Menon, J.

1. The decree-holder In O. S. No. 43 of 1107 of the Court of the District Munsiff, Er-nakulam, is the appellant in this second appeal. His execution petition E. P. No. 423 of 1954 was dismissed by the learned District Munsiff on the ground that it was barred by limitation and the dismissal has beenconfirmed by the learned District Judge of Anjikaimal by bis judgment in A. S. No. 19 of 1955.

2. The main question for decision is whether the order of the District Munsiff dated 3-8-1951 in E. P. No. 1695 of 1950 can be considered as a 'subsequent order' within the meaning of Section 48(1)(b) of the Code of Civil Procedure, 1908. The order in E. P. No. 1695 of 1950 reads as follows:

'Judgment-debtors are allowed to pay at the rate of Rs. 10 per month from 6-10-1951 for 6 months and thereafter the balance in a lump or in default in a lump. Rs. 20 paid today.'' and from the payments made in pursuance of the order I must assume that it had the consent of the decree-holder.

3. Section 48(1)(b) provides that 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 execution becomes barred only on the expiration oFl2 years from 'the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree'. As pointed out in Chitaley's commentary on the Code of Civil Procedure, 1908, (Vol. 1, p. 630) 'there is a conflict of opinion on the question whether an order of an executing Court can operate as a subsequent order under this section.'

4. The facts in 36 Cochin 865 (A), were similar to those before me. In that case Krishnaswami Iyen-gar, C. J., -- after a detailed review of the case law on the subject -- came to the conclusion that the order of an executing Court can also operate as a subsequent order under Section 48(1)(b) of the Code of Civil Procedure, 1908.

5. In a more recent case -- Laxmi Lal v. Onkar Lal, (S) AIR 1955 Raj 33 (B) -- the matter was dealt with as follows:

'It appears that there was a conflict of opinion on the question whether an order of an executing Court can operate as a subsequent order under that section. According to certain High Courts, a subsequent order can only be an order passed by the Court which passed the decree. Other High Courts have, however, taken the view that the order may be of any competent Court including a Court of execution'. The decision of their Lordships of the Privy Council in -- 'Oudh Commercial Bank Ltd. v. Bind Basni Kuer', AIR 1939 PC 80 (C), supports the latter view.

In deciding that case, their Lordships observed that the principle in vogue was that the original decree could not be altered or varied by the parties even with the sanction of the Court. Their Lordships, however, held that they were not in agreement with that view and that there could be no restriction of the parties' liberty of contract with reference to their rights and obligations under the decree and that if they did contract upon terms which had reference to and affected the execution, discharge or satisfaction of the decree, such a matter clearly fell urider Section 47, Civil P. C., and there was no reason why a compromise or an adjustment, if properly made could not be recognised. In this view of the matter, the expression 'subsequent order' may cover any lawful order passed by an executing Court, and it would then follow that where such subsequent order directed any payment of money or the delivery of any property to be made at recurring periods, the period of twelve years beyond which a fresh application for executioncould not be filed must be computed from the date of default in making the payment or the delivery.'

6. I entertain no doubt that the correct view is the view expressed by Krishnaswami lyengar, C. J., in 36 Cochin 865 (A), and it follows that this second appeal has to be allowed. Judgment accordingly.

7. The respondents did not appear in person orthrough counsel and in view of that I shall not makeany order as to costs.


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