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P.S. Subramanian Vs. S.S. Venkitadri Iyer - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 250 of 1964
Judge
Reported inAIR1965Ker236
ActsLimitation Act, 1908 - Sections 15(1)
AppellantP.S. Subramanian
RespondentS.S. Venkitadri Iyer
Appellant Advocate K.P. Radhakrishna Menon, Adv.
Respondent Advocate T.L. Viswanatha Iyer, Adv.
DispositionAppeal dismissed
Cases Referred and Bai Ujam v. Bai Rukhmani
Excerpt:
- - and if that be so it is not disputed that this appeal must fail......execution of the decree has been stayed, no matter that the stay is restricted to one particular mode of execution and execution in other modes is open. (i am, of course, speaking of a single decree, not of a composite decree which really consists of several decrees where a stay of execution, partial or complete, of one or the other of the several decrees would he no stay at all in respect of the remaining decrees). and, coming to hardship, it is certainly nard, to take one example, that a partial stay restricted to the only feasible mode of execution should not avail even in respect of that mode. such a case should stand on the same footing as an absolute stay and yet if ram bharosay v. sohan lal, a i r 1924 all 707, kirtyanand v. pirthichand, air 1929 pat 597, kundo mal v. firm.....
Judgment:

P.T. Raman Nayar, J.

1. With great respect I think that Itty v. Mani, 1963 Ker L T 442 : (A I R 1984 Ker 134) was correctly decided and does not require reconsideration; and if that be so it is not disputed that this appeal must fail. In my opinion the result reached in that case can be reached on a plain reading of the statute--Section 15 (1) of the Indian Limitation Act, 1908--without reference, on the one hand, to such considerations as the decree-holder's unfettered right to execute his decree in any manner he chooses or of the hardships involved in the other possible views, or, on the other, of the propriety of an extension of time when the decree-holder can keep his decree alive by making applications in an unprohibited mode (whether feasible or not), a device which, in any case, would be unavailing against the twelve year rule.

2. The section does not 'speak of absolute or partial stays, and, it seems to me clear that, if there is a stay at all, it would be correct to say that execution of the decree has been stayed, no matter that the stay is restricted to one particular mode of execution and execution in other modes is open. (I am, of course, speaking of a single decree, not of a composite decree which really consists of several decrees where a stay of execution, partial or complete, of one or the other of the several decrees would he no stay at all in respect of the remaining decrees). And, coming to hardship, it is certainly nard, to take one example, that a partial stay restricted to the only feasible mode of execution should not avail even in respect of that mode. Such a case should stand on the same footing as an absolute stay and yet if Ram Bharosay v. Sohan Lal, A I R 1924 All 707, Kirtyanand v. Pirthichand, AIR 1929 Pat 597, Kundo Mal v. Firm Daulat Ram, AIR 1940 Lah 75 and Virchand v. Marualappa, AIR 1944 Bom 303 were correctly decided would be of no avail at all. Parameswaran Nambudri v. Seshan Pattar, AIR 1928 Mad 627 and Baijnath Prosad v. Nursingdas, AIR 1958 Cal 1 which would restrict the operation of the section to cases where the stay was of execution in the manner sought, proceed more on what, as pointed out in 1983 Ker LT 442: (AIR 1964 Ker 1S4) and as recognised by those decisions themselves, their Lordships thought, and, with great respect I also think, the section ought to have said than on what it actually says. As stated in the Calcutta decision, the view taken therein involves reading into the section the words, 'the execution of which in the manner asked for was stayed' in place of the words 'the execution of which was stayed'.

3. I might add that apart from the Travancore cases referred to therein, the decisions in Ghulam Nasir Ud-Din v. Hardeo Prasad, I L R 34 All 439 and Bai Ujam v. Bai Rukhmani, I L R 38 Horn 153 : (A I R 1914 Bom 211 (1)) support the view taken in 1963 Ker L T 442 : (A I R 1984 Ker 134).

4. I dismiss the appeal with costs.

5. Leave refused.


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