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Oorakarai Seetharama Chettiar Vs. Sheik Abdul Rahiman Sahib - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1941Mad40; (1941)1MLJ614
AppellantOorakarai Seetharama Chettiar
RespondentSheik Abdul Rahiman Sahib
Cases ReferredSriramachandra v. Venkateswara
Excerpt:
- - the appellant denied that the decree had been satisfied and on the 28th november, 1931, he applied for the sale of the mortgage property, but his application was dismissed on the 2nd april, 1932. on the 30th june, 1932, the court also dismissed the application by the judgment-debtors for an order directing satisfaction to be entered up. the judgment-debtors appealed against the order dismissing their application but were again unsuccessful. , has clearly indicated this......by the judgment-debtors for an order directing satisfaction to be entered up. the judgment-debtors appealed against the order dismissing their application but were again unsuccessful. the decree of the appellate court was passed on the 20th march, 1933. on the 21st august, 1935, the appellant again applied for the sale of the mortgage property in pursuance of the final decree obtained by him on the 9th november, 1929. this application was opposed on the ground that the decree had become barred by limitation inasmuch as more than three years had elapsed from the dismissal of the appellant's previous application. the appellant's case was that the period of limitation commenced to run against him only from the 20th march, 1933, when the appeal filed by the judgment-debtors against.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The Letters Patent Appeal involves the question of the effect of the judgment of this Court in Sriramachanara v. Venkateswara : AIR1939Mad157 . In that case a Division Bench consisting of King and Krishnaswami Aiyangar, JJ., held that the word 'appeal' in the third column of Article 182 of the Limitation Act means 'an appeal in the suit which is likely to affect the decree sought to be executed', and not merely an appeal against the actual decree or order sought to be executed. In other words, the word 'appeal' does not necessarily mean an appeal from the decree or order referred to in the first column of the Article. In the present case the facts are very different from the facts in Sriramachandra v. Venkateswara : AIR1939Mad157 and King, J., whose judgment is now under appeal, has held that the decision in Sriramachandra v. Venkateswara : AIR1939Mad157 does not, govern the present case.

2. In Sriramachandra v. Venkateswara : AIR1939Mad157 there was an appeal against an order refusing to set aside an ex parte decree and the Court held that the period of three years prescribed by Article 182 ran from the 20th October, 1932, the date of the appellate decree of the High Court, and not from the 5th March, 1930, the date of the ex parte decree. In the case now before the Court a preliminary mortgage decree was passed on the 3rd April, 1928, in favour of the appellant and the final decree followed on the 9th November, 1929. On the 24th November, 1931, the judgment-debtors applied for an order directing the entering up of satisfaction of the decree. The appellant denied that the decree had been satisfied and on the 28th November, 1931, he applied for the sale of the mortgage property, but his application was dismissed on the 2nd April, 1932. On the 30th June, 1932, the Court also dismissed the application by the judgment-debtors for an order directing satisfaction to be entered up. The judgment-debtors appealed against the order dismissing their application but were again unsuccessful. The decree of the appellate Court was passed on the 20th March, 1933. On the 21st August, 1935, the appellant again applied for the sale of the mortgage property in pursuance of the final decree obtained by him on the 9th November, 1929. This application was opposed on the ground that the decree had become barred by limitation inasmuch as more than three years had elapsed from the dismissal of the appellant's previous application. The appellant's case was that the period of limitation commenced to run against him only from the 20th March, 1933, when the appeal filed by the judgment-debtors against the order on their application was decided. The District Munsif of Salem, in whose Court the mortgage decree was passed, decided against the appellant and his judgment was upheld by the District Judge of Salem on appeal. King, J., on second appeal agreed that the Courts below were right.

3. The argument advanced on behalf of the appellant is that the application filed by the judgment-debtors for an order directing the entering up of satisfaction was an application which was likely to affect the decree, because if it were granted it would mean that there will be no decree to execute. Therefore the appellant was entitled to wait until the application had been finally decided before taking any further steps to bring the mortgage property to sale.

4. In addition to, referring to the judgment in Sriramachandra v. Venkateswara : AIR1939Mad157 , the learned advocate for the appellant has laid? great stress on a passage in the judgment of the Privy Council in Nagendranath Dev. Sureshchandra De where it is said that so long as there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorny path of execution, which, if the final result is against them, may lead to no advantage. As King, J., has remarked in the judgment under appeal the appellant's argument is very plausible, but the learned Judge was not prepared to extend the judgment in Sriramachandra v. Venkateswara : AIR1939Mad157 , which he himself delivered to the present case and refused to regard the dictum of the Privy Council in Nagendranath De v. Sureshchandra De as having application here. We consider that he was right. While the word 'affect' is very wide in its scope, in using it in Sriramachandra v. Venkateswara : AIR1939Mad157 , the learned Judges were not intending to give it the wide application which the appellant would have. In the present case King, J., has clearly indicated this. In Sriramnachandra v. Venkateswara : AIR1939Mad157 , if the appeal against the order refusing to set aside the ex parte decree had been successful, the ex parte decree would have been cancelled. In the present case the granting of the judgment-debtors' application for an order directing the entering up of satisfaction would not have cancelled the decree. The decree would still stand and govern the rights of the parties. The only effect of the payment of the decretal amount would be that the decree could no longer be available to support an application for execution. That is the distinction between Sriramachandra v. Venkateswara : AIR1939Mad157 , and the present case. In Nagendranath De v. Sureshchandra De the Privy Council were concerned with the question whether any application by a party to an appellate Court to set aside or revise a decree or order of a Subordinate Court was an appeal within the meaning of Article 182 (2) and they held that it was. There, if the application had been successful the decree would have been set aside or revised.

5. We agree with King, J., that the judgment in Sriramachandra v. Venkateswara : AIR1939Mad157 , cannot be given the meaning which the appellant would have. For these reasons the appeal will be dismissed with costs.


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