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Karanakkodan Gowda Swaraswatha Brahman Samajam Vs. Manikka Pai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 430 of 1956
Judge
Reported inAIR1959Ker384
ActsCivil Procedur Code , 1908 - Sections 47, 48 and 48(1)
AppellantKaranakkodan Gowda Swaraswatha Brahman Samajam
RespondentManikka Pai
Appellant Advocate V. Rama Shenoy, Adv.
Respondent Advocate V. Bhaskara Menon, Adv.
DispositionAppeal allowed
Cases ReferredKiriyanand Singh v. Pirthi Chand
Excerpt:
- - 3. i should have thought that execution having been ordered (not once but twice) after due notice to the defendants, and after giving them an opportunity of being heard, (it was never disputed that the notices were duly served upon them) they arc precluded from raising a plea in bar of execution, like the present plea of limitation, at a subsequent sfage of the same proceedings. dan dayal, ilr 54 all 573: (air 1932 all 273); and subsequent decisions taking the same view like zaheer-ud-din v......for money against two defendants, was passed on 11-4-1115 (27-11-1939). in e. p. 1148 of 1950, the decree-holder applied for execution. thereupon the two defendants filed m. p. 875 of 1951 praying that they may be allowed to pay the decree amount in instalment of rs. 5 each per month. on the decree-holder agreeing to this, the executing court made the following order: 'as agreed to by the decree-holder, both judgment-debtors are allowed to pay each at the rate of rs. 5 per mensem from 2-7-1951 and in default in a lump.' this was on 2-6-1931, and on the same day e. p. 1148 of 1950 was dismissed and thereafter the two defendants paid five instalments each until 2-11-1951. then they defaulted, and on 28-5-1954 the decree-holder came forward with his present execution petition e. p. 422 of.....
Judgment:

Raman Nayar, J.

1. This second appeal arises out of proceedings in execution of the decree in O. S. 22 of 1115 on the file of the Munsiffs Court, Trichur.

2. The decree in question, a decree for money against two defendants, was passed on 11-4-1115 (27-11-1939). In E. P. 1148 of 1950, the decree-holder applied for execution. Thereupon the two defendants filed M. P. 875 of 1951 praying that they may be allowed to pay the decree amount in instalment of Rs. 5 each per month. On the decree-holder agreeing to this, the executing court made the following order: 'As agreed to by the decree-holder, both judgment-debtors are allowed to pay each at the rate of Rs. 5 per mensem from 2-7-1951 and in default in a lump.' This was on 2-6-1931, and on the same day E. P. 1148 of 1950 was dismissed and thereafter the two defendants paid five instalments each until 2-11-1951. Then they defaulted, and on 28-5-1954 the decree-holder came forward with his present execution petition E. P. 422 of 1954 (within three years of dismissal of E. P. 1148 of 1950 and of the 'instalment order' in M. P. 875 of 1951 but more than 12 years offer the passing of the decree) for execution by the arrest of the defendants and by attachment and sale of their properties. Notice under Order 21, Rule 22 C. P. C. was issued and the case posted to 6-7-1954. On that day the defendants did not appear. Execution was ordered and the case posted to 12-7-1954 for further steps. On that day notice under Order 21, Rule 37 C. P. C. was issued and the case posted to 16-8-1954. On 16-8-1954 also the defendants did not choose to appear, and execution by arrest and detention was ordered and the case posted to 28-9-1954. On 28-9-1954 the 1st defendant was brought under arrest whereupon he filed M. P. 2107 of 1954 praying to be allowed to pay the decree amount in monthly instalments of Rs. 5. He also made a payment of Rs. 25 on that day and was released on his own bond to appear on 3-12-1954. He did not appear on that day, and consequently M. P. 2107 of 1954 was dismissed and a warrant issued for his arrest, Then he came forward with a petition, C. M. P. 106 of 1955, raising the objection that execution was barred under Section 48 of the Civil Procedure Code and praying for the dismissal of E. P. 422 of 1954. This petition was allowed by the executing court on 5-4-1955, and E. P. 422 of 1954 was accordingly dismissed as against both the defendants. The decree-holder appealed, and his appeal having been dismissed by the District Court ho has come up here on second appeal.

3. I should have thought that execution having been ordered (not once but twice) after due notice to the defendants, and after giving them an opportunity of being heard, (it was never disputed that the notices were duly served upon them) they arc precluded from raising a plea in bar of execution, like the present plea of limitation, at a subsequent sfage of the same proceedings. That apart I think that the view taken by the courts below, based on the decision in Pylee Kuriakko v. Kurian Pylee, 1953 Ker LT 20: (AIR 1953 Trav-Co 394) that the order of the executing court dated 2-6-1951 permitting the defendants to pay the decree in monthly instalments is not a subsequent order within the meaning of Section 48(1)(b) of the Civil Procedure Code, is erroneous. If, as laid down by the Privy Council in Oudh Commercial Bank Ltd. Fyzabad v. Bind Basni Kuer, AIR 1939 PC 80, a subsequent agreement of the present nature, namely, an agreement to pay the decree amount in instalments, is a matter to be dealt with under Section 47, Civil Procedure Code and not by way of separate suit, and if such a bargain has its effect upon the parties' rights under the decree and is therefore something which the executing court has jurisdiction to enforce, it must necessarily follow that the order of the executing court enforcing such a bargain is a subsequent order within the meaning of Section 48(1)(b) of the Civil, Procedure Code. Or else we are driven to the absurdity that, while an application for execution in respect of an instalment falling due after the twelve year period will be dismissed as premature if made before the expiry of that period, it will be dismissed as barred under Section 48 of the Civil Procedure Code, if made after. D. S. Apte v. Tirmal Hanmant, AIR 1925 Bom 503, Hridoymohan v. Khagendra Nath, AIR 1929 Cal 687, Kartic Chandra v. Bata Krishna, AIR 1938 Cal 25, Mahendra Rao v. Bishambhar Nath, AIR 1940 All 270 (FB), Kalikutty v. Krishna Menon, 36 Cochin LR 865, Tatindra Nath v. Heramba Chandra, AIR 1945 Cal 154, Laxmi Lal v. Onkarlal, (S) AIR 1955 Raj 33 and K. G. Brahmanamajam v. Ouseph, 1957 Ker LT 422 ; (AIR 1957 Kerala 108) are some of the decisions cited at the bar in support of this view that I am taking. The leading case to the contrary is the Full Bench decision in Gobardhan Das v. Dan Dayal, ILR 54 All 573: (AIR 1932 All 273); and subsequent decisions taking the same view like Zaheer-Ud-Din v. Mt. Amtu, Rasheed, AIR 1944 Lah 106 & 1953 Ker LT 20: (AIR 1953 Trav-Co 394), have either followed this decision or relied upon certain observations of the Privy Council in Kiriyanand Singh v. Pirthi Chand, AIR 1933 PC 52. But, as has been explained by Krishoaswami Iyengar, C. J. in 36 Cochin LR 865, the decision in AIR 1933 PC 52, is authority only for the proposition that the subsequent order cannot be one passed in a different suit and is not authority for the view that it cannot be one passed in execution proceedings in the same suit. And in the Full Bench case reported in AIR 1940 All. 270, it was held that the view taken by the Full Bench of the same Court in ILR 54 All 573: (AIR 1932 All 273), must be regarded as overruled by the Privy Council decision in AIR 1939 PC 80.

4. In the result I allow this appeal with coststhroughout. The executing court will restore thepetition, E. P. 422 of 1954, to its file and proceed to dispose of it in accordance with law.


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