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Nagalingam Pillai Vs. Sivachidambara Sabapathy Deekshitar - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1933Mad85; 140Ind.Cas.500; (1932)63MLJ725
AppellantNagalingam Pillai
RespondentSivachidambara Sabapathy Deekshitar
Cases ReferredSapani Patra v. Damodar Kar
Excerpt:
- - now, the decree having been passed on the 20th june, 1923, the application made on the 9th january, 1925, for execution was clearly within time. 3. i find that both the calcutta high court as well as the patna high court had to consider this very question......the learned district munsif of chidambaram dismissed the execution petition filed by the assignee decree-holder in small cause suit no. 682 of 1923 on the ground that the same was barred by limitation under article 182 of the limitation act. the assignee decree-holder has preferred this revision petition.2. the facts are these. the decree in small cause suit no. 682 of 1923 was passed on 20th june, 1923. on 9th january, 1925, an application for execution was filed, which however was dismissed on the 23rd march, 1925. on the 1st january, 1928, the limitation (amendment) act ix of 1927 - amending article 182 of the limitation act - came into force. on the 23rd march, 1928, the assignee decree-holder filed another application for execution which also was subsequently dismissed for default.....
Judgment:

Anantakrishna Aiyar, J.

1. The learned District Munsif of Chidambaram dismissed the execution petition filed by the assignee decree-holder in Small Cause Suit No. 682 of 1923 on the ground that the same was barred by limitation under Article 182 of the Limitation Act. The assignee decree-holder has preferred this Revision Petition.

2. The facts are these. The decree in Small Cause Suit No. 682 of 1923 was passed on 20th June, 1923. On 9th January, 1925, an application for execution was filed, which however was dismissed on the 23rd March, 1925. On the 1st January, 1928, the Limitation (Amendment) Act IX of 1927 - amending Article 182 of the Limitation Act - came into force. On the 23rd March, 1928, the assignee decree-holder filed another application for execution which also was subsequently dismissed for default of prosecution. The present execution petition was filed on the 25th April, 1928, and it is with reference to that petition that the learned District Munsif observe^ that it was barred by limitation. Judged by the provisions of the old Article 182 - before it was amended in 1927 - it is clear that the learned District Munsif's decision was right. But as the amended Act came into force on the 1st January, 1928, we have to consider whether the right of the decree-holder to execute the decree had become barred by limitation on that date, i.e., on the date on which the new Act came into force. If his right had not become barred and extinguished on that date, then any application for execution which he might make after that date would be governed by the provisions of the amended Act. Now, the decree having been passed on the 20th June, 1923, the application made on the 9th January, 1925, for execution was clearly within time. The decree-holder will have time till the 9th January, 1928, for filing a petition for executing his decree, and some eight days prior to that, i.e., on the 1st January, 1928, the new Act came into force. It being therefore clear that when the new Act came into force, the right of the decree-holder to execute this decree was not barred by limitation, any subsequent application made by him to execute the decree would be governed by the provisions of the amended Act. The application made on the 23rd March, 1928, was therefore in my opinion in time, the same having been made within three years from the 23rd March, 1925, the date of order passed on the prior execution petition. Applying therefore the general principles that should govern a case when a new Limitation Act is passed, I think I must allow this Revision Petition.

3. I find that both the Calcutta High Court as well as the Patna High Court had to consider this very question. In Kanai Lall Sabui v. Puma Chandra Chatterjee (1930) 34 C.W.N. 733 Mallik, J., of the Calcutta High Court had to consider substantially a similar point. The learned Judge observed that the law of limitation applicable to a suit or proceeding is the law in force at the date of the institution of the suit or proceeding unless there be a distinct provision to the contrary in the Act. On facts similar to the facts of the present case the learned Judge held that if execution of the decree be not barred when the new Act of 1927 came into force, any subsequent execution application would be in time if it should fulfil the conditions prescribed by the new Act. To the same effect is the decision by a Bench of the Patna High Court-in the case reported in Sapani Patra v. Damodar Kar : AIR1930Pat207 . As observed in that case, an amending Act will not disturb vested rights. If at the time an amending Act came into force the decree-holder's right to execute the decree had not become barred by limitation, the learned Judges held that the subsequent application for execution would be in time if filed within three years from the date of the orders passed on the prior execution petition.

4. For the above reasons, I am clear that the learned District Munsif was in error in his view regarding limitation in the present case. I reverse the order of the learned District Munsif and remand the execution petition for fresh disposal in accordance with law. The petitioner will be entitled to his costs of this Revision Petition.


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