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Unnamalai Ammal Vs. Mathan Alias Arunachalam and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in42Ind.Cas.530; (1917)33MLJ413
AppellantUnnamalai Ammal
RespondentMathan Alias Arunachalam and anr.
Cases ReferredHarish Chandra Saha v. Chandra Mohan Doss I.L.R.
Excerpt:
- .....of the original decree. there is no direct decision on this point under the new civil procedure code. the learned pleader for the respondent argues that though it is conceded that the application in question is an application in execution it cannot be said to be an application for execution of the decree and he says that there is authority for the distinction in a case reported in sultan ' sahib marakayar v. chidambaram chettiar (1909) i.l.r. 32 m. 138. but what was decided in that case was that a decree having been already executed and the application being for delivery of possession, there was no question of the execution of the decree. this is a totally different case. it is conceded by the learned pleader that section 47, c.p. code does govern an application for restitution under.....
Judgment:

1. The question in the appeal is whether Article 182 or 181 of the Indian Limitation Act applies to this application which was an application for restitution of certain property in consequence of the reversal of the original decree. There is no direct decision on this point under the new Civil Procedure Code. The learned pleader for the respondent argues that though it is conceded that the application in question is an application in execution it cannot be said to be an application for execution of the decree and he says that there is authority for the distinction in a case reported in Sultan ' Sahib Marakayar v. Chidambaram Chettiar (1909) I.L.R. 32 M. 138. But what was decided in that case was that a decree having been already executed and the application being for delivery of possession, there was no question of the execution of the decree. This is a totally different case. It is conceded by the learned pleader that Section 47, C.P. Code does govern an application for restitution under the new Code. He says that it is an application relating to the execution of the decree, but it is not an application for execution of the decree. As we understand the words ' an application for execution of a decree,' they cannot mean anything else but an application to enforce the decree. The distinction is sought to be drawn on the ground that the application seeks to enforce what legally follows from the decree but not to enforce the terms of the decree. 'We do not think that this subtle distinction is sound so far as the present question is concerned. What is sought to be enforced is the legal obligation arising from the decree itself and not an independent obligation. It seems to us that we must treat the application as an application for execution of the decree. As regards authorities we have a decision of this Court in Venkayya v. Baghavulu I.L.R. (1897) M. 448 which laid down that to an application of a similar nature, the article of limitation applicable was that corresponding to Article 182 of the present Limitation Act. But it is contended that the new Code has made some difference in this respect in as much as in Section 583 of the old code the words ' to execute the decree ' occurred, while those words are wanting in the present code. But as pointed out in a decision of this Court in Somasundardm Pillai v. Chokkalingam Pillai I.L.R. (1917) M. 780 the Legislature could not have intended that an application for restitution should not be treated as an application in execution. All that the Legislature intended was to make clear that certain applications which under the old code were not included in Section 583 were included in Section 144, Civil Procedure Code, The view we take of Section 182 is also borne out by other decisions of this Court reported in Gopala Menon v. Anujan Bajah (1911) 22 M.L.J. 146 and also by an unreported decision in C.M.P. 134 of 1917. On the other hand, a decision of the Calcutta High Court reported in Ashutosh Goswami v. Upendra Prasad Mitra 21 C.W.N. 564 has been cited to us for the contrary position. In the first place, the observation there seems to be by way of obiter and further no reasons are given in support of the view that Article 182 did not apply. The learned Judges seem to have followed an earlier decision of that court, Harish Chandra Saha v. Chandra Mohan Doss I.L.R. (1900) C. 113 and that was under the old code. There also the question does not appear to have been properly discussed.

2. We hold that Article 182 applies to the application in question. We reverse the order of the Lower Courts and remand the petition to the District Munsif for disposal according to law. The respondent will pay the appellant's costs in this and in the Lower Appellate, Court. Costs in the District Munsif's Court will abide the result.


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