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Senra Disai Venra Jagath Virarama Dhikku Vijaya Sethurayar Vs. Annasami Ayyar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1883)ILR6Mad359
AppellantSenra Disai Venra Jagath Virarama Dhikku Vijaya Sethurayar
RespondentAnnasami Ayyar
Excerpt:
decree - execution--limitation--civil procedure code, section 230. - .....from time to time it was in part executed. on the 25th march 1881 an application was made by the decree-holder for the sale of the properties hypothecated to satisfy the balance remaining unpaid. on the 23rd july 1881 an order was made for sale. on the 3rd september 1881 the decree-holder applied for a postponement of the sale up to august 1882, informing the court that arrangements had been made between him and the judgment-debtors for the satisfaction of the decree and other debts. but, before an order was passed on this petition, it was withdrawn on the 7th september, and on the 18th september fresh proclamation of sale was issued.2. on the 19th september the present appellant (second defendant) petitioned the court to postpone the sale to the 20th january 1882. the decree-holder.....
Judgment:

Charles A. Turner, Kt., C.J.

1. The decree was passed on 1st March 1870. From time to time it was in part executed. On the 25th March 1881 an application was made by the decree-holder for the sale of the properties hypothecated to satisfy the balance remaining unpaid. On the 23rd July 1881 an order was made for sale. On the 3rd September 1881 the decree-holder applied for a postponement of the sale up to August 1882, informing the Court that arrangements had been made between him and the judgment-debtors for the satisfaction of the decree and other debts. But, before an order was passed on this petition, it was withdrawn on the 7th September, and on the 18th September fresh proclamation of sale was issued.

2. On the 19th September the present appellant (second defendant) petitioned the Court to postpone the sale to the 20th January 1882. The decree-holder consented, and the sale was stayed. Mention appears to have been made in Court of an agreement into which the parties had entered, and this agreement was brought before the Judge on the 30th September and returned on the 3rd February 1882. The decree-holder applied for a sale in pursuance of the agreement and for the attachment of moneys not theretofore attached, but which were assigned by the agreement. The appellant objected that the decree-holder could not enforce the agreement in execution, and the Judge on the 31st March 1882 admitted this objection and ordered that the decree should be executed independently of the agreement.

3. It is argued that, as twelve years from the date of the decree had expired, and an application under Section 230 of the Code had been granted, the Court had no power to issue the order of sale in view of the terms 'no subsequent application to execute the same decree shall be granted after the expiry of twelve years from 'the periods therein mentioned. It is no doubt true that the position of the words 'shall be granted' lends support to the argument that delay on the part of the Court which may or may not be avoidable may deprive a decree-holder of the benefit of his decree without any fault on his part.

4. It appears to us, however, that the terms of the law admit of an interpretation which obviates the necessity of our regarding them as imposing a novel and unreasonable prohibition. It is probable that if the draftsman had not so arranged the clause that two paragraphs (one of them somewhat lengthy), are necessary to define the periods from which limitation was to run, the word 'shall be granted' would have been found in another place. There can be little doubt the limitation was intended to apply to the application and not to the order passed thereon, and that the words prescribing the limitation are to be referred to the words 'application to execute the decree' and not to the word 'granted.'

5. The same construction must be adopted in the subsequent part of the section where it is enacted that 'nothing in the section shall prevent the Court from granting an application for execution of a decree after the expiration of the said term,' and 'application for execution after 'must be held to mean application for execution made after twelve years.

6. We hold then, that inasmuch as the application was made within twelve years from the date prescribed as the period from which limitation runs, the order is valid.

7. The appeal fails and is dismissed with costs.


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