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Vettakke Kakkattu Manakkal Parameswaran Nambudripad and anr. Vs. Seshan Pattar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtChennai
Decided On
Reported in110Ind.Cas.518; (1928)55MLJ156
AppellantVettakke Kakkattu Manakkal Parameswaran Nambudripad and anr.
RespondentSeshan Pattar and ors.
Cases ReferredVellayyan Chetty v. Muthayya Chetty
Excerpt:
- - we think it is unnecessary to discuss this question any further, because we think the second contention of the respondent must fail and the appeal must be allowed......15 of the limitation act even as regards execution against other judgment-debtors in computing the period of limitation, when they are joint judgment-debtors. in the present case there is no doubt that narayanan and his mana are joint judgment-debtors. he therefore contends that though the insolvency proceedings did not stop execution against the family, and he might have taken out execution during all the time from march, 1914 up to august, 1923 without any obstacle still for the purpose of computation the period from august, 1914 to february, 1919 must be excluded. for this position he relies on the decision in vellayyan chetty v. muthayya chetty (1920) 13 l.w. 59. in that case the facts are that a decree was passed against several judgment-debtors. the first application was dated 16th.....
Judgment:

1. The facts of this case may be stated as follows: - In O.S. No. 476 of 1913 on the file of the District Munsif's Court of Palghat the 1st respondent obtained a decree against one Narayanan Akkitheripad who was the Karnavan of the Kakkat Mana (a Nambudri family). The decree was dated 16th March, 1914. By M.P. No. 1068 of 1914 the decree-holder applied to arrest the defendant. He was arrested on 27th July 1914, but was let off some time after, to take insolvency proceedings, on furnishing security. The judgment-debtor then filed I.P. No. 11 of 1914. He was adjudicated an insolvent on 31st August 1914. In 1916 the junior members of the defendant's family filed a suit impleading the Official Receiver for a declaration that the property in the hands of the said Narayanan belonged to the family, that the debt was his personal debt and that the family was not liable for it. That suit was filed on 18th December, 1916, in the Subordinate Judge's Court of Calicut. It was afterwards transferred to the District Court of South Malabar which gave the declarations sought by the plaintiff, one of them being 'that the said properties are not liable for the debts described in the aforesaid Insolvency Petition No. 11 of 1914 as they were not contracted for tarwad necessity'. This decree was dated 2nd May 1919. Meanwhile in February, 1919, the insolvent died. There was an appeal to the High Court (Appeal No. 353 of 1919). The High Court confirmed the decree of the Judge subject to one modification, namely, one of the declarations granted, that is the one quoted above, was deleted. The decree of the High Court was dated 7th December, 1920. On 21st August, 1922, a petition was filed for bringing his legal representative on record for purposes of execution. This was ordered without notice. On 9th February, 1923, by E.P. No. 58 of 1923, the decree-holder applied to execute the decree against the family represented by the legal representatives. The objections now taken were then also taken, but were not decided. The present petition, E.P. No. 272 of 1925, was filed on the 6th April 1925. The defendant's representatives raised the objection that the application is either incompetent or at any rate is barred by limitation. The Subordinate Judge and on appeal the District Judge overruled the defendant's objections. Hence this second appeal.

2. We may start with the position that the decree in O.S. No. 476 of 1913 was obtained against Narayanan in two capacities (1) personally, and (2) as manager of the family. It was as if there were two defendants in the case, the 1st defendant being Narayanan himself and the 2nd defendant being the Kakkat Mana represented by its manager Narayanan. The family was a judgment-debtor and the decree was executable against the family. But the family was not directly on the record; it was on record as represented by Narayanan. When Narayanan died in February 1919, other persons had to be brought on record to represent the family. They were so brought in August, 1922. But, except that there was a change in the person representing the family, the family was a judgment-debtor throughout. If the execution petition of 1923, E.P. No. 58 of 1923, was in time, the present petition which was filed within 3 years from it is also in time. Mr. B. Sitarama Rao, the learned vakil who appeared for the respondents and who argued the case with his usual fairness and considerable ingenuity contended that the petition of 1923 was not barred. He contended (1) that the insolvency proceedings operated as an order staying execution of the original decree in the suit of 1913 within the meaning of Section 15 of the Limitation Act, and (2) that, though the stay order may be as regards one judgment-debtor only, still, for the purposes of Section 15 of the Limitation Act, the period from the date of the Insolvency Petition in August 1914, up to the death of the insolvent in February 1919, should be excluded from computation not only against the insolvent but as against the family also. He also contended that the period between 2nd May 1919, the date of the District Judge's decree in the suit of 1916 and 7th December, 1920, the date of the High Court's decree, should be excluded because during that period the District Judge's decree prevented his taking out execution. If these periods are excluded from computation the application of August 1922 was in time, being within three years from the date of the first execution petition of 27th July, 1914.

3. On the first point the learned Advocate-General who appeared for the appellants contended that an order adjudicating a person as an insolvent does not operate as an order staying execution of the decree against him; and he relied on Ramaswami Pillai v. Govindasami Naicker I.L.R. (1918) M. 319 : 1918 36 M.L.J. 104, a case under the Provincial Insolvency Act (III of 1907) followed in Sidhmj Bhojraj v. Alli Haji I.L.R. (1922) B. 244, a case under the Presidency Towns Insolvency Act (III of 1909). He contended that an order to operate as a stay order must be an order completely and not partially stopping execution of the decree, and, as the decree may be executed with the leave of the Court even after insolvency, he contended that the insolvency proceedings did not operate as a stay order within the meaning of Section 15. It may be observed that under the Act V of 1920 insolvency proceedings can operate only as a partial stay, for unless the insolvent is protected by a special order they do not operate as staying execution regarding the person, but under the Act of 1907 they did operate to stop execution against person and property except that with the leave of the Court, execution may proceed. Mr. Sitarama Rao contended that the two decisions abovementioned are wrongly decided, and he relied upon a number of decisions to show that a partial stay order may be governed by Section 15 of the Limitation Act. We think it is unnecessary to discuss this question any further, because we think the second contention of the respondent must fail and the appeal must be allowed.

4. The second contention of Mr. Sitarama Rao is that, where a stay order is expressly limited only to one judgment-debtor and permits execution against other judgment-debtors, still the period during which the stay order had effect must be excluded under Section 15 of the Limitation Act even as regards execution against other judgment-debtors in computing the period of limitation, when they are joint judgment-debtors. In the present case there is no doubt that Narayanan and his Mana are joint judgment-debtors. He therefore contends that though the insolvency proceedings did not stop execution against the family, and he might have taken out execution during all the time from March, 1914 up to August, 1923 without any obstacle still for the purpose of computation the period from August, 1914 to February, 1919 must be excluded. For this position he relies on the decision in Vellayyan Chetty v. Muthayya Chetty (1920) 13 L.W. 59. In that case the facts are that a decree was passed against several judgment-debtors. The first application was dated 16th August, 1910. As against the 1st defendant execution of the decree was suspended between 23rd August, 1910 and 10th September, 1910. There was another application for execution on 30th August, 1913 and a third application on 26th February, 1916. The question in that case was whether the last application was barred. The Subordinate Judge held that it was in time so far as the 1st defendant was concerned, but so far as the other judgment-debtors were concerned, it was barred. There was an appeal to the High Court. The respondents were not represented before the High Court--a fact noticed by the learned Judges who decided the case with this remark:

it is unfortunate that in this case we have not the advantage of hearing any argument on behalf of the respondents.

5. The learned Judges held that the period between 23rd August and 10th September, 1910 should be deducted not only as against the 1st defendant but also as against other judgment-debtors. Prima facie this looks somewhat anomalous. The Limitation Law is primarily a law for the prevention of laches, and it looks somewhat anomalous to say that while execution can be taken out against a person throughout a certain period a part of that period should be excluded from computation simply because there is a stay order in respect of another person to which Section 15 of the Limitation Act applies and which should, therefore, be excluded from computation, certainly so far as that other person is concerned. This result is arrived at by the learned Judges by reliance on Article 182, Explanation 1 which says that in the case of joint debtors an application for execution against one may be regarded as an application for execution against all. If the explanation directly applies to the case then there is no question that the case is correctly decided; but the explanation does not apply to the case before us nor could it apply to the facts of Vellayyan Chetty v. Muthayya Chetty (1920) 13 L.W. 59. In that case the application of 30th August, 1913 was obviously barred against other judgment-debtors because it was more than 3 years from the first application dated 16th August, 1910, unless the period between 23rd August and 10th September can be excluded even as against, other judgment-debtors. For the purpose of such exclusion the explanation to Article 182 cannot help because that explanation does not enable one to exclude a certain period from computation. It only enables an application against one judgment-debtor to operate against others also. It has nothing to do with computation. But the learned Judges seem to have relied on the explanation to Article 182 as if it was an explanation also to Section 15 and to have extracted a general principle underlying the Limitation Act that if a period is to be excluded from computation as against one judgment-debtor, it should be excluded from computation as regards the other joint judgment-debtors also, as if such underlying principle was involved in the explanation. In the first place, the reasoning involved transposes the explanation to Article 182 into a general section of the Limitation Act and certainly into an explanation to Section 15 - a process which is not permissible. Secondly, it is very clear that there is no such general principle in the Limitation Act that if a certain period is to be excluded as regards one judgment-debtor it should be excluded as regards other joint judgment-debtors also. Section 21 of the Act shows that where a fresh starting period of limitation has to be used for one judgment-debtor under Sections 19 and 20 the benefit of these provisions cannot be used against other judgment-debtors even though they are joint judgment-debtors, unless acknowledgment or payment is made on behalf of all by a person duly authorised for the purpose. Mr. Sitarama Rao next invoked the analogy of Section 48 of the Civil Procedure Code. Here again the analogy fails him for it has been held by a bench of three Judges in Abdul Khadir v. Ahammad Shaiwa Ravuthar I.L.R. (1913) M. 419, that for the purpose of Section 48 of the Civil Procedure Code while the period during which the decree-holder was prevented from executing the decree by the fraud of one judgment-debtor should not count against the decree-holder so far as that judgment-debtor is concerned, the benefit of the section cannot be extended as against other judgment-debtors who were not guilty of such fraud. The learned Judges relied on Subramania Chettiar v. Alagappa Chettiar (1920) 13 L.W. 59 as an authority for their conclusion; but the decision in Subramania Chettiar v. Alagappa Chettiar I.L.R. (1906) M. 268 was simply a decision on Explanation 1 to Article 179 corresponding to the present Article 182. That case was certainly correctly decided. We have no doubt that if the facts are such that the explanation to Article 182 directly applies to them, then limitation even against other judgment-debtors is saved. But in Vellayyan Chetty v. Muthayya Chetty (1920) 13 L.W. 59 the question is not whether an application against one should be regarded as an application against all, for which position only the decision in Subramania Chettiar v. Alagappa Chettiar I.L.R. (1906) M. 268 is an authority, but whether the period which should be excluded from computation because there was a stay order against one judgment-debtor should be excluded from computation as against the other judgment-debtors even if there is no stay order against them. The decision in Subramania Chettiar v. Alagappa Chettiar I.L.R. (1906) M. 268 is no authority for such exclusion from computation and we do not think it was correctly invoked as authority by the learned Judges who decided Vellayyan Chetty v. Muthayya Chettiar (1920) 13 L.W. 59 for their conclusion. We think that in that case the application of 30th August, 1913 was barred as against the other judgment-debtors and therefore the application of 26th February, 1916 also was barred. The case stands alone in the reports and has never been followed. We think it is incorrectly decided. It is easy to give examples of the very anomalous and startling results to which it would lead if the position in that case were accepted. The case where only one defendant appeals and others do not appeal and the decree is not executed for several years against non-appealing defendants but can afterwards be executed by reason of the appellate decree is only air apparent exception to our view, for that case is governed by Article 182, Clause (2) of the third column, the appellate decree being the real decree that is executed for the purpose of limitation. But apart from such case which is specially provided for in the Act, all cases where the decree can be executed against one defendant but cannot be executed against another defendant have different consequences for each set of judgment-debtors. We therefore think with great deference to the learned Judges that the case in Vellayyan Chetty v. Muthayya Chetty (1920) 13 L.W. 59 was incorrectly decided and, if so, the application of the decree-holder in this case of February, 1923 (E.P. No. 58 of 1923) was barred by limitation and therefore the present application is also barred by limitation.

6. We allow the appeal and dismiss the application with costs throughout.

7. This decision does not preclude the petitioner from taking such steps as he is entitled to in insolvency.


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