Skip to content


Minor Subbarayan by Guardian Visalakshmi Achi Vs. Minor Natarajan by their Guardian Gouri Achi and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1922Mad268; (1922)43MLJ168
AppellantMinor Subbarayan by Guardian Visalakshmi Achi
RespondentMinor Natarajan by their Guardian Gouri Achi and ors.
Cases ReferredKeshopershad Singh v. Harban Lal
Excerpt:
- - on this question, one has to find the sense in which it is used, as best as he can......that no order for the execution of decree shall be made upon any fresh application. this 12 years period has been extended by the executing court by the addition of a period equal to that during which a stay of execution of the decree was once obtained by an order of court in 1913.2. i am of opinion that this is not permissible by law, and that section 48, c.p.c. which contains an unqualified prohibition against execution of the decrees more than 12 years old, is not controlled by section 15 of the limitation act, section 15 of that act speaks of the computation of periods of limitation with reference to the periods prescribed in schedule to the act. though the words 'in the schedule' do not occur in this section or in section 19 as they do in sections 3 and 6, the word.....
Judgment:

Spencer, J.

1. In disposing of an execution petition the Sub-Court of Mayavaram in an order passed on April 9th, 1919, which the District Judge of Tanjore confirmed on appeal, extended the period of 12 years after which Section 48, C.P.C. declares that no order for the execution of decree shall be made upon any fresh application. This 12 years period has been extended by the executing Court by the addition of a period equal to that during which a stay of execution of the decree was once obtained by an order of Court in 1913.

2. I am of opinion that this is not permissible by law, and that Section 48, C.P.C. which contains an unqualified prohibition against execution of the decrees more than 12 years old, is not controlled by Section 15 of the Limitation Act, Section 15 of that Act speaks of the computation of periods of limitation with reference to the periods prescribed in schedule to the Act. Though the words 'in the schedule' do not occur in this section or in Section 19 as they do in Sections 3 and 6, the word 'prescribed' can in applying the Act and to suits under the general law refer to nothing else. This is the meaning given by this Court to the section in Narasimha Deo Garu v. Krishnachandra Deo Garu 37 M.L.J. 256, and by the Allahabad High Court in Jurawan Pasi v. Mahabir Dhar Dube (1918) I.L.R. 40 All. 198 , as explained by Shiam Karan v. The Collector of Benares I.L.R. (1919) ALL. 118. I am aware that Article 181 of schedule speaks of Section 48, C.P.C. as 'providing' a period of limitation. But Section 48 has nothing to do with the periods of limitation prescribed in the schedule to the Limitation Act and has no connection with the process of computation of time according to the nature of the cause of action in particular suits. For as may be seen by its position in a Code of Procedure in the part that is headed 'Execution' it enacts a rule of procedure for all executing Courts. The effect of that rule is to put an absolute term of 12 years on the right of decree holders to apply to execute their decrees. See the observations of Jwala Prasad, J. in Mahanth Krishna Dayal Gir v. Musst Sakina Bibi (1916) 20 C.W.N.952 . The only exceptions to the absolute term fixed by the section are those mentioned in proviso 2 to the section itself. The precise question which we have to decide is, considering its importance, singularly barren of authority, but there is one reported case in Govinda v. Umra Singh (1920) 54 I.C. 279 which accords with the view which in my judgment is most reasonable. In Kumar a Venkataperumal v. Velaynda Reddi : AIR1915Mad449 . Sadasiva Aiyar, J. was inclined to hold that the general provisions of the Limitation Act relating to exclusion of time governed the provision in Section 48 of the C.P. Code, but the learned Chief Justice did not pronounce an opinion on this point of law, as he refused on the facts of that case to extend the time, without deciding whether it would be legal to do so. On the other hand the decision in Raman a v. Balm (1912) 24 M.L.J. 96 (S.C.) . is opposed to the opinion of Sadasiva Aiyar, J.

3. Reference has been made in the arguments on both sides to Section 29, Limitation Act.

4. I consider that this section does not affect the matter one way or the other. It relates to special or local laws which contain special provisions of their own for the limitation of certain proceedings taken to obtain reliefs provided therein.

5. It does not include the Civil Procedure Code in its scope.

6. The appeal is allowed with costs throughout and the execution petition is dismissed as out of time.

Ramesam, J.

7. The point for decision in this case is, whether, in computing the period of 12 years in Section 48 of the Civil Procedure Code, Section 15(1) of the Limitation Act can be applied. The question has been ably and exhaustively argued by the Vakils on either side. I confess I find considerable difficulty in coming to a conclusion.

8. The first point argued for the appellant is that the sections of the Limitation Act (4 to 25) apply only to periods prescribed in the schedule to the Act. He contends that this is the natural construction that follows on reading the sections from Section 3 onwards. As a matter of drafting it was found unnecessary to repeat in the later sections, the words 'by the first schedule' after 'prescribed' as they are mentioned in Section 3 and their repetition in each section would be awkward. They are expressly repeated in Section 6 as reference had to be made to the third column. When confronted with the question - what is the need for Section 29 if his contention is right? his suggestion is, that there may be suits to which the Limitation Act may apply though the suits maybe occasioned by proceedings under special Acts (e.g. declaratory suits occasioned by proceedings under Madras Act IV of 1897 or suits necessitated by proceedings, under Madras Act (III of 1905) and in such cases both the Acts may apparently apply and to remove the conflict, Section 29 has been enacted. He explains the decision in Lingayya v. Chinna Narayana 33 M.L.J. 566 (F.B.) where the learned Judges give an independent meaning to the word 'affect' (apart from the word 'alter' in Section 29) as referring to the operation of Sections 4 to 25 by saying that neither the arguments nor the judgments dealt with Sections 4 to 25, in themselves and they proceeded on the assumption that these sections may apply to other Acts and were confined to a consideration of Section 29 only. Seeing that the word 'affect' was not in the Act of 1871 and was specially introduced in the Act of 1877 and continued in the present Act, I find it difficult to accept the last explanation. The argumet of the appellant with reference to the construction of the word 'prescribed' in Sections 4 to 25 is supported by Jurawan Pasi v. Mahabir Dhar Dube I.L.R.(1918) All. 198, and Shiam Karan v. The Collector of Benares I.L.R. (1919) All. 118 , but by no other cases. Even if I am inclined to accept it, I cannot, as I feel bound by the decision of the Privy Council in Phoolbas Koonwnr v. Lalla Jogeshur Sahay (1876) I.L.R. 1 Cal. 226 (P.C.) where it was held that the provisions of the Limitation Act were intended to govern the Civil Procedure Code which was a general Act. The fact that the Acts considered in that case were the Acts of 1859 makes no difference. Nor does the consideration that, so far as the disability of minority is concerned Section 6 of the Limitation Act must now be confined to the Limitation Act only see Prem Nath Tiwari v. Chaterpal Mon Tewari I.L.R. (1915) All. 638 Ramana v. Babu 24 M.L.J. 96, contra Mora Sadasiv v. Visaji Raghunath I.L.R(8191) . 16 Bom. 536 afford a ground for distinguishing Phoolbas Koonwur v. Lalla jogeshur Sahoy (1876) I.L.R. 1 Cal. 226 (P.C.) , for these rulings are based on the particular language of Section 6. The principle of Phoolbas Koonwar v. Lalla Jogeslmr Sahoy (1876) I.L.R. 1 Cal. 226 (P.C.) a viz., that the Civil Procedure Code is a general law and hence periods of limitation in it are governed by the Limitation Act was followed in Peary Mohun Aich v. Anundacharan Biswas I.L.R. (1892) Cal. 631 and was approved by Sadasiva Aiyar, J. in Ramana v. Babu 24 M.L.J. 96 though not necessary for the decision) and so far I. agree with them. But this agreement with Sadasiva Aiyar, J. in Ramana v. Babu 24 M.L.J. 96 which was a case on Section 48 does not necessarily imply the conclusion that the provisions of the Limitation Act apply to Section 48 of the Civil Procedure Code as I shall presently show. I must therefore negative the first contention of Mr. Krishnaswami Aiyar that Sections 4 to 25 of the Limitation Act do not apply to the Civil Procedure Code. The second point argued by him is that the period of 12 years is not a period of limitation within the meaning of Section 15 of the Limitation Act What is meant by a period of limitation? In the first place it probably does not include mere periods of extension such as the period of two years under Section 31 of the Limitation Act Dayaram v. Laxman : (1911)13BOMLR284 and the period of three years referred to in Section 8 of the Limitation Act Narasitnha Deo Garu v. Krishnachandra Deo Garu : (1919)37MLJ256 which is an authority only for this proposition. Also it is obvious that the phrase 'period of limitation' can be used in two senses (1) a strict and (2) a loose sense. In the strict sense it means such a period that a proceeding to which it is sought to be applied will be in time if filed within the period and beyond time if filed after it. It has a double characteristic. Most periods of limitation e.g., all those mentioned in the schedule of the Limitation Act, in many special and local laws and the periods of 15 days (in Order 21, Rule 84), and 30 days (in Order 21 Rule 89 of the Civil Procedure Code) and even the periods of two years in Section 15 of the Easements Act are periods of limitation in this sense. But the period in Section 48 of the C.P.C. is not a period of limitation in this sense. For an application for execution of a decree (of the kind mentioned in Section 48) will in general not be in time if filed within 12 years. It will be out of time unless it is within three years from any of the dates mentioned in the 3rd column of Article 182. To an application for execution of a decree Art, 182 has first to be applied and if it is found not wanting when tested by Article 182, then Section 48 C.P.C., will operate as a further test. It is in the nature of a strict period of limitation that it is capable of extension by the general sections of the Limitation Act (particularly by Sections 19 and, 20 to an indefinite extent) and in the case of application for execution the period in Article 182 is capable of an extension to an indefinite extent also by the use of the various provisions in the 3rd column of Article 182. It is upon such extension that Section 48 C.P.C. acts as a check. Its operation is secondary in the sense that it operates on the working out of Article 182. So viewed, it is a period of limitation in a looser sense and it is clear that when the Legislature described the period in Section 48 as a period of limitation in Article 181 of the Limitation Act it is only the looser sense that was intended. It is not that certain kinds of applications were dealt with by Article 182 and certain others by Section 48 of the C.P.C. which is the impression produced by a too literal reading of the word 'or' in Articles 181 and 182. I confess that I do not see what purpose was served by the mention of Section 48 C.P.C. in Articles 181 and 182, for all applications governed by Section 48 are applications for execution falling within Article 182 and it would be enough in Article 181 to stop with 'elsewhere in this schedule' without mentioning Section 48 C.P.C. Again Article 182 produces the impression that Section 48 of the Code must be first applied and then Article 182. But we know this to be not so. I find it difficult to conceive of a case where the result will be different if all reference to Section 43 of the Code is omitted in Article 181 and 182 altogether. Be that as it may, it is clear that Article 181 refers only to the looser sense of the phrase 'period of limitation'.

9. Having arrived at this conclusion, we have next to see in what sense it is used in Section 15 of the Limitation Act. On this question, one has to find the sense in which it is used, as best as he can. It may be, that it is used in the looser sense in Section 11(3) of the third schedule of the Code Shiam Karam v. The Collector of Benares I.L.R.(1919) All. 118 and in Section 48 of the Dekkhan Agricultural Relief Act Shidaya Virabhadraya v. Satappa Bharamappa I.L.R. (1918) 42 Bom. 367, Dayaram v. Taxman : (1911)13BOMLR284 but these cases cannot help us for and Sections 57 to 25 of the Limitation Act. In those sections, it seems to have been used in the stricter sense Juravam Past v. Mahabir Dhar Dube I.L.R(1918) . All. 198 In Mahantkrishna Dayal Gir v. Musst. Sakina Bibi (1916) 20 C.W.N. 952 it was held that Section 19 of the Limitation Act does not apply to the period in Section 48 of the C.P.C. Chamier, C.J. does not give any special reason, Jwala Prasad, J. says Section 48 is a rule of procedure. I do not agree with him if he meant to say that the period in Section 48 is not a period of limitation at all. For the Legislature has described it as a period of limitation in Article 181 Shiamkaran v. The Collector of Benares I.L.R.(1919) All. 118 but I think he meant to say that it is not such a period in the stricter sense. This aspect was not discussed by Sadasiva Aiyar, J. in Kamana v. Balm I.L.R. (1612) M. 186 . I therefore agree with my learned brother that the appeal should be allowed.

10. In this view it is unnecessary to discuss the third contention of the appellant that Section 15(1) cannot help him as the stay order in this case was obtained by himself Keshopershad Singh v. Harban Lal 53 I.C. 85.

11. I concur in the order of my learned brother.


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