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Parameshwara Bharathikal Vs. Pappan Padmanabhan - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 367 of 1956
Judge
Reported inAIR1958Ker270
ActsLimitation Act, 1908 - Schedule - Article 182; Travancore Limitation Act, 1100 - Schedule - Article 166; Travancore Registration Act, 1087 - Sections 15
AppellantParameshwara Bharathikal
RespondentPappan Padmanabhan
Appellant Advocate A. Parameswaran Pillai, Adv.
Respondent Advocate K.S. Rajamony, Adv. for Respondent 1
DispositionAppeal dismissed
Cases ReferredD. C. Joseph v. John Jessia
Excerpt:
- - the decree in that case was one which was passed and filed under section 15 of the travancore registration act before 1-4-1951. it was therefore held that the law applicable was the travancore limitation act, both under section 6 of the part b stales laws act of 1951 as well as the general clauses act. 1. 3. another argument advanced on behalf of the appellant was that the decree-holder having paid along with the plaint the requisite fees for filing a copy of the decree, under section 15, the court had a duty to send a memorandum of the decree for the purpose of filing and that he was not to suffer for the failure of the court to send it......date of the decree. the defendants contended that execution was barred under article 182 of the indian limitation act as the decree was not a registered one.the execution court overruled this objection holding that the travancore limitation act under which the period of 6 years was available to the decree-holder had not been repealed by the legislature even though the indian limitation act was extended to this state in 1951. the 1st defendant preferred an appeal from this order and the learned subordinate judge of attingal allowed the appeal holding that execution was barred by limitation. the decree-holder has therefore preferred this second appeal.2. the question for decision is whether the execution petition filed on 2-4-1955 is barred by limitation under article 182 of the indian.....
Judgment:

T.K. Joseph, J.

1. This second appeal arises from an order in execution of a decree passed by the District Munsiff of Attingal on 30-8-1951. The decre was for recovery of a sum of money due as Thiruppuvarora from the Defendants and the properties scheduled to the decree. The first application for execution was filed on 2-4-1955, beyond a period of 3 years from the date of the decree. The defendants contended that execution was barred under Article 182 of the Indian Limitation Act as the decree was not a registered one.

The execution Court overruled this objection holding that the Travancore Limitation Act under which the period of 6 years was available to the decree-holder had not been repealed by the Legislature even though the Indian Limitation Act was extended to this State in 1951. The 1st defendant preferred an appeal from this order and the learned Subordinate Judge of Attingal allowed the appeal holding that execution was barred by limitation. The decree-holder has therefore preferred this second appeal.

2. The question for decision is whether the execution petition filed on 2-4-1955 is barred by limitation under Article 182 of the Indian Limitation Act which allows only a period of 3 years from the date of decree except in cases where a certified copy of the decree or order is registered. Though the suit was filed prior to 1-4-1951 when the Indian Limitation Act became applicable to this State by the Part B States Laws Act 3 of 1951, the decree was passed only on 30-8-1951.

It is seen from the copy of the decree that the plaintiff paid a sum of 21 chs. along with the plaint, that being the amount required for getting memorandum of the decree entered or filed under Section 15 of the Travancore Registration Act. Unlike the Indian Registration Act Section 15 of the Travancore Act contained a provision for filing decrees affecting immovable pro perties. Article 166 of the Travancore Limitation Act which corresponds to Article 182 of the Indian Act gave the benefit of a term of 6 years for execution of decrees which were either registered or entered or filed as required by Section 15 of the Registration Act.

Though the plaintiff had paid the fees for filing a copy of the decree under Section 15 of the Travancore Registration Act, it was not actually entered or filed, as by the time the decree was passed the Travancore Registration Act had been replaced by the Indian Act. Thus the decree which is sought to be executed is one which has neither been registered nor filed under Section 15 of the Travancore Act. The decree being an unregistered one which was passed after the Indian Limitation Act became law in this State, it is clear that it has to begoverned by Article 182 of the Indian Limitation Act.

Learned counsel for the appellant relied On the decision in D. C. Joseph v. John Jessia, 1955 Ker LT 602: (AIR 1955 Trav-Co 186) (A), in support of his argument that the Travancore Limitation Act should apply to this case. The decree in that case was one which was passed and filed under Section 15 of the Travancore Registration Act before 1-4-1951. It was therefore held that the law applicable was the Travancore Limitation Act, both under Section 6 of the Part B Stales Laws Act of 1951 as well as the General Clauses Act.

This decision cannot be of any help to the appellant as the decree in this case was passed after 1-4-1951 and as it has not been entered or filed under Section 15. We may in this connection refer to Circular No. 4 of 1952 issued by the High Court of Travancore-Cochin for the guidance of Subordinate Courts which provided as fellows :

'After the extension of the Indian Registration Act of 1908, to this State, under the Part B States (Laws) Act of 1951 from 1-4-1951, and the consequent repeal of the Travancore and Cochin Registration Acts, the High Court have reconsidered the question of the levy of Registration fees by the Civil Courts and are pleased to issue the following instructions for the guidance of the subordinate Courts and the High Court office; (1) After 1-4-1951, there is no necessity for the Courts to send copies of decrees -- either original or appellate -- relating to immovable properties to the Sub-Registrar of (he Sub-District where such property is situate for purposes of registration or filing in Book No. 1.

3. Another argument advanced on behalf of the appellant was that the decree-holder having paid along with the plaint the requisite fees for filing a copy of the decree, under Section 15, the Court had a duty to send a memorandum of the decree for the purpose of filing and that he was not to suffer for the failure of the Court to send it. Certain decisions of the Travancore High Court were also relied on in this connection. Decisions of the High Court of Travancore were not uniform on this point and it is unnecessary to consider which of the conflicting views is the correct one as there is no provision corresoonding to Section 15 of the Travancore Act in the Indian Registration Act which was the law in force on the date of the decree.

The question whether the omission if any, of the Court can be rectified now does not therefore arise. It was also contended that the decree-holder got a vested right to have the decree entered under Section 15 as the suit was filed when the Travancore Acts were in force. We are unable to accept the argument that the right to get a memorandum of the decree entered or filed under Section 15 of the Travancore. Registration Act is something similar to a right of appeal available, to a party according to the Jaw prevailing on the date of the institution ofthe suit. As pointed out earlier all that the execution Court had to see was whether the decree was one registered under the Registration Act. Registration not having been effected, the decree-holder is not entitled to claim the period of 6 years under Article 182 of the Limitation Act. The decision of the lower appellate Court does not therefore require interference.

4. The second appeal therefore fails andis dismissed with costs.


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