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Ayi Goundan and anr. Vs. Solai Goundan and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1945Mad139; (1945)1MLJ47
AppellantAyi Goundan and anr.
RespondentSolai Goundan and anr.
Cases ReferredKunhi v. Seshagiri
Excerpt:
- - 2. the decisions of this court reveal a strong conflict of opinion, but in passing it may be mentioned that in some of the cases very little reason has been given for the opinion expressed. 403 which clearly shows that there can be an application which is a step-in-aid of execution outside proceedings for execution. the important word is 'or'.therefore a fresh period of limitation starts from the date of the final order in an application to take a step-in-aid of execution as well as from the date of a final order in an application for execution......the starting point, notwithstanding that an application for execution is not pending. these are kunhi v. seshagiri (1909)51.0.758, sankara nainar v. thangamma a.i.r. 1929 lah, 57, kannan v. avulla haji i.l.r. (1882) mad. 141 and rarichan v. kunhamu : (1921)41mlj374 all of which were decided by division benches.3. in kunhi v. seshagiri (1909)51.0.758, an application was made by a decree-holder to the court for a certificate that a copy of a revenue register was necessary in order to proceed in execution. apparently the revenue authorities were in the habit of refusing an application for a copy of the register without a certificate that a copy was required for a necessary purpose. an application for execution had at that time to be accompanied by a copy of the revenue register. the.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. Article 182(5) of the Limitation Act, 1908, as amended by the Indian Limitation (Second Amendment) Act, 1927, states that for the execution of a decree or order not provided for by Article 183 or by Section 48 of the Code of Civil Procedure the period of limitation shall be three years from the date of the final order passed on an application for execution or on an, application to take some step-in-aid of execution. Before the amendment in 1927 the period commenced from the date of the application. The corresponding article in the Limitation Act of 1877 was Article 179(4), which also made the starting point of limitation the date of the application. One of the cases, to which reference will be made arose under the Act of 1877, some of them under the Act of 1908 before the amendment and some after the amendment. Nothing really turns on this, because for the purpose of answering the question referred it is immaterial whether the starting point is the date of the application or the date of the order passed thereon. The question is whether an application to take a step-in-aid of execution of a decree or order can be made when there is no application for execution pending.

2. The decisions of this Court reveal a strong conflict of opinion, but in passing it may be mentioned that in some of the cases very little reason has been given for the opinion expressed. We will take first the cases which have decided that an application to take a step-in-aid of execution can be made the starting point, notwithstanding that an application for execution is not pending. These are Kunhi v. Seshagiri (1909)51.0.758, Sankara Nainar v. Thangamma A.I.R. 1929 Lah, 57, Kannan v. Avulla Haji I.L.R. (1882) Mad. 141 and Rarichan v. Kunhamu : (1921)41MLJ374 all of which were decided by Division Benches.

3. In Kunhi v. Seshagiri (1909)51.0.758, an application was made by a decree-holder to the Court for a certificate that a copy of a revenue register was necessary in order to proceed in execution. Apparently the revenue authorities were in the habit of refusing an application for a copy of the register without a certificate that a copy was required for a necessary purpose. An application for execution had at that time to be accompanied by a copy of the revenue register. The question before the Court was whether the application to the Court for a certificate amounted to a step-in-aid of execution. The Court said that it did and consequently started a fresh period of limitation. The importance of this decision is that there was no application for execution pending, nor could there be one until a copy of the revenue register had been obtained. The Bench was composed of Innes and Muttuswami Ayyar, JJ. In the course of his judgment, Muttuswami Ayyar, J., pointed out that Clause 4 of Article 179 of the Limitation Act, 1877, referred first to an application for actual execution and then to a step-in-aid. This, he considered, led to the inference that the step-in-aid of execution might be some preliminary proceeding prior to the actual execution.

4. In Sankara Nainar v. Thangamma A.I.R. 1929 Lah 57, Ramesam, J., remarked that there was no warrant for the view that an application to take a step-in-aid of execution should be made in execution and no authority had been cited in support of the proposition. The learned Judge did not proceed to discuss the question and it must be taken that he formed this opinion on the wording used in the article. Spencer, J., who was of the same opinion, said that the law-only required that there should be an application in accordance with law made to the proper Court.

5. In Kannan v. Avulla Haji I.L.R. (1882) Mad. 141, Devadossand Sundaram Chetty, JJ., referred to those two cases and said that it was too late in the day to question the principle laid down in Kunhi v. Seshagiri (1909)51.0.758. The same question arose in Balagumswami JVaicker v. Guruswami Naicker : AIR1926Mad1178 which was decided by Devadoss and Wallace, JJ., who observed that where the act of the plaintiff was not in furtherance of execution or in a pending execution, his act could not be said to be one in aid of execution. It was sought to read this observation as supporting the opinion that there could not be an application to take a step-in-aid of execution when there was no application for execution pending; but in Kannan v. Avulla Haji I.L.R. (1882) Mad. 141 it was made clear that Balagumswami Naicker v. Guruswami Naicker : AIR1926Mad1178 was not to be regarded as going to this length, and as we have indicated, the Court there held that Kunhi v. Seshagiri (1909)51.0.758 should be followed.

6. The conflict in decisions was referred to in Rarichan v. Kunhamu : (1921)41MLJ374 ; which was decided in 1934. The Division Bench, which heard that appeal, considered that the balance of the decisions appeared to confirm the correctness of the view taken in Sankara Nainar v. Thangamma (1909)51.0.758.

7. The decisions in which the contrary view has been expressed are Kuppuswami Chettiar v. Rajagopala Aiyar A.I.R. 1929 Lah. 57 Balasubramaniam v. Chit Co. Yela Nidhi (1882) I.L.R. 5 Mad. 141 Abdul Karim Sahib v. Lakshmanaswami : (1921)41MLJ374 and Rgmasubbayya v. Thimmayya (1926) 52 M.L.J. 1: I.L.R. 50 Mad. 403. These were also decided by Division Benches. The first of these appeals was heard by Ayling and Venkatasubba Rao, JJ. The basis of the decision there was the opinion that a man could not be said' to take some step-in-aid of a petition which had not been initiated. The Court did not, however, consider the case of Kunhi v. Seshagiri (1926) 52 M.L.J. 1: I.L.R. 50 Mad. 403 which clearly shows that there can be an application which is a step-in-aid of execution outside proceedings for execution. In none of the other cases was any reason given for the view expressed and in no case was Kunhi v. Seshagiri (1926) 52 M.L.J. 1: I.L.R. 50 Mad. 403 mentioned or considered.

8. The question now under discussion was raised before Phillips and Madhavan Nair, JJ., in Krishna Pattar v. Seetharama Pattar A.I.R. 1919 Mad. 220. The learned Judges said that they were not prepared to accept Kuppuswami Chettiar v. Rajagopala Aiyar A.I.R. 1929 Lah. 57 without further consideration of the matter in the light of all the cases decided by the Court and left it there.

9 We consider that Kunhi v. Seshagiri (1926) 52 M.L.J. 1: I.L.R. 50 Mad. 403 should be followed. The question roust be decided on the wording of the article and the wording shows that the application to take a step-in-aid of execution is entirely separate from the application for execution. The important word is 'or'. Therefore a fresh period of limitation starts from the date of the final order in an application to take a step-in-aid of execution as well as from the date of a final order in an application for execution. Here we are not called upon to decide what is or what is not a step-in-aid. If an application amounts to an application to take a step-in-aid, that is sufficient and it does not depend whether there is then pending an application for execution.

10. Consequently the answer which we give to the question referred is that it is not necessary for the purpose of saving limitation under Article 182(5) of the Limitation Act that an application taken as a step-in-aid of execution should be made in a pending execution petition.

11. The costs of this reference will be made costs in the appeal.


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