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Vempati Mangamma Vs. Dyta Narayanappa - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1933Mad785; 145Ind.Cas.930; (1933)65MLJ747
AppellantVempati Mangamma
RespondentDyta Narayanappa
Cases ReferredRaineshvar Singh v. Homeshvar Singh
Excerpt:
.....legally capable of execution, i fail to understand why in a case where after a decree is passed it is judicially held by an order binding on both parties in the same proceedings incapable of execution, a right to execute it should not be deemed to arise on that decision being reversed......this decision stood till it was set aside by the appellate court could not be deducted from the period limitation for execution of the mortgage decree. that decision is based on the principle that the bar of limitation for a decree cannot be postponed or avoided in the absence of a direct order of stay or some provision for suspension in the limitation act oh any equity based on an implied order or collateral litigation which would render the proceedings futile. this was also the principle of ammathayi animal v. sivarama pillai (1924) 48 m.l.j. 664, a case oh very similar facts referred to and distinguished in peer ammal v. nallusiuami pillai i.l.r. (1930) 54 mad. 455 : 60 m.l.j. 1.10. in this case the decision of the district munsif rendering the decree inexecutable was passed in the.....
Judgment:

Krishnan Pandalai, J.

1. The question is whether the appellant's (decree-holder's) execution petition, dated 9th June, 1928, is barred by limitation. He obtained his decree for money on 20th April, 1922. The judgment-debtor (respondent) on 3rd May, 1924, put in a petition stating that he had discharged the debt and to enter up satisfaction which was ordered on 23rd December, 1924. Thus the decree was declared incapable of execution as it was discharged about 4 months before the expiry of the first period of 3 years from the date of the decree. The decree-holder appealed from this decision and the appellate Court on 26th February, 1926, reversed it and held that the decree was unsatisfied. The decree-holder's first execution petition was the one dated 9th June, 1928, which both the Lower Courts have held to be barred by limitation under Article 182 of the Limitation Act.

2. It is clear that if the starting point is calculated from the date mentioned in Article 182(1) and if that date is taken as 20th April, 1922, without giving any effect to the fact that though that was the original date when the decree was passed, the decree as such ceased to have legal effect between the parties or to be executable as such on 23rd December, 1924, when it was declared satisfied and was restored to force and executability only on 26th February, 1926, the petition would be barred. The appellant's argument is that those facts cannot be ignored and that a new starting point must be calculated from 26th February, 1926, when the decree was restored to life and invokes the principle of Peer Annual v. Nalluswami Pillai I.L.R. (1930) 54 Mad. 455 : 60 M.L.J. 239 for dating the date of the decree from the time when having been declared inexecutable that declaration was itself set aside on appeal. Alternatively he argues that by reason of those facts, a fresh right to apply has arisen and the application must be taken as falling within Article 181. Both these are merely different means of arriving at the same result - that a fresh right to execute the decree arose on 26th February, 1926. On the other hand the respondent urges that there is no such fresh right and that the only right is to execute the decree of 20th April, 1922, within any of the periods mentioned in column 3 of Article 182. The decision depends on acceptance of either of these arguments.

3. As the Privy Council observed in Nagendra Nath Dey v. Suresh Chandra Dey the only course open to the Court is to give effect to the words of the statute. But in so doing the Privy Council themselves and the Courts in India have by interpretation understood the applicability of Article 182 as a whole or the words in the third column of that and other Articles in such a way in particular situations and classes of cases as to avoid obvious injustice and inconvenience to which the opposite interpretation would lead. The theory of continuation or revival of execution petitions dismissed for statistical purposes and without any fault of the decree-holder but because there was some collateral proceeding which made execution practically impossible is one of the methods by which injustice is avoided in some cases. That theory is of no use in this case because the decree-holder had not put in any execution application before the present one. As to this theory limited in the above way Viscount Cave remarked drily during the argument in Rameshvar Singh v. Homeshvar Singh that you must make a hopeless application or this principle will not apply. If for instance this decree-holder had in the 4 months left to him between 23rd December, 1924 and 20th April, 1925, filed an application for execution it would certainly have been dismissed as the District Munsif had held on 23rd December, 1924, that the decree was satisfied. Such dismissal was however necessary for this principle to be of avail. But it would keep the decree alive.

4. Similarly the decree-holder's opposition, if by counter-affidavit, to the judgment-debtor's petition to enter up satisfaction might have been regarded as a step-in-aid of execution. But according to the relevant authorities this requires that there should have been a previous execution petition of which the opposition was a step-in-aid. Therefore this method of loosening the bonds of a decree-holder whose legs are tied by circumstances beyond his control while trying to keep up with the time which is always running against him is also not available in this case.

5. The Privy Council in the case before them in Rameshvar Singh v. Homeshvar Singh therefore adopted the much more direct and simple doctrine that the language of Article 182(1) prescribing three years from the date of a decree or order read with, its context refers only to an order or decree made in such a form as to render it capable in the circumstances of being enforced. They put it in another way by saying that when as in that case the application for execution could not have been made till the judgment-debtor had come into possession of the property Article 181 may be called in aid and the period is 3 years from the time when the right to apply accrues.

6. If that principle could be used in the case of a decree, which though not initially inexecutable becomes such by a decision in the same execution which is binding between the parties and which inexecutability is removed only on appellate decision in the same proceedings, it would not seem an unwarrantable extension to hold that ' the date of the decree ' in Article 182(1) is really and in common sense when the bar to its executability was removed by the appellate decision; or alternatively that the petition filed after such removal is one governed by Article 181 when the right to apply to execute again accrues.

7. It is now decided in Nagendra Nath Dey v. Suresh Chandra Dey that if there is an appeal against any portion of the decree by whichever party, 'the date of the decree' for purposes of execution in favour of the parties who did not appeal and in respect of matters on which there was no appeal is the date of the appellate decree. This is based by the Privy Council on the words of Article 182(2) 'where there has-been an appeal' being unqualified by reference to parties of subject-matter. Similarly if the whole Article 182 is to be read in its context as applicable to decrees which are in the circumstances legally capable of execution, I fail to understand why in a case where after a decree is passed it is judicially held by an order binding on both parties in the same proceedings incapable of execution, a right to execute it should not be deemed to arise on that decision being reversed. Execution proceedings are for many purposes a continuation of the suit and there seems to be no violence to any language employed in the Limitation Act in holding as above.

8. I am aware of the principle that once a period of limitation has begun to run against a particular right to sue, appeal, or apply, there is no suspension of that period except as provided by the Limitation Act itself. At the same time the principle that a former right of suit or application may lapse and that a fresh right to sue or apply for the same relief giving rise to a fresh period of limitation may arise from circumstances has been recognised in decisions binding on me. In the case of suits, Muthuveerappa Chetty v. Adaikappa Cheity I.L.R. (1920) 43 M. 845 : 39 M.L.J. 312 and the cases therein referred to establish this. The Full 'Bench decision in Muthu Korakkai Chetty v. Madar Animal I.L.R. (1919) 43 Mad. 185 : 38 M.L.J. 1 is an instance of the same kind in execution proceedings. This decision and the Privy Council cases on which it is based were considered in Peer Animal v. Nalluszvami Pillai I.L.R. (1930) 54 Mad. 455 : 60 M.L.J. 239 in respect of appeals. In the last case the words 'the date of the decree' in the third column of Article 156 of the Limitation Act were in conformity with the Full Bench decision, understood as the date on which the remedy (appeal) becomes available to the party.

9. The recent Full Bench decision in Sundaramma v. Abdul Khadar I.L.R. (1932) 56 Mad. 490 : 64 M.L.J. 664 was relied on for the respondent. In that case' after a mortgage decree was passed and pending execution it Was held in another suit instituted by a stranger to the mortgage in the first Court that the mortgaged property did not, belong to' the mortgagor but to the stranger and it was held that the period during which this decision stood till it was set aside by the appellate Court could not be deducted from the period limitation for execution of the mortgage decree. That decision is based on the principle that the bar of limitation for a decree cannot be postponed or avoided in the absence of a direct order of stay or some provision for suspension in the Limitation Act oh any equity based on an implied order or collateral litigation which would render the proceedings futile. This was also the principle of Ammathayi Animal v. Sivarama Pillai (1924) 48 M.L.J. 664, a case oh very similar facts referred to and distinguished in Peer Ammal v. Nallusiuami Pillai I.L.R. (1930) 54 Mad. 455 : 60 M.L.J. 1.

10. In this case the decision of the District Munsif rendering the decree inexecutable was passed in the same proceedings,; and not in collateral litigation at the instance of third parties and it seems to me that the grounds explained in Peer Animal v. Nallusivami Pillai I.L.R. (1930) 54 Mad. 455 : 60 M.L.J. 1 are applicable here. The difference no doubt is that that was a case of an appeal from a Lower Court's decree which had been set aside and afterwards restored, whereas this is a case of an application for execution of a decree which had been imperilled and rendered ineffective but later restored to force and executability by the order of the execution Court. But the principle is the same that you cannot either appeal from or enforce by execution a decree so long as it is declared by the competent Court to be ineffective but must wait till the higher Court has restored the decree and its force and effect. To adapt the language employed there it seems unreasonable to suppose that the right to execute this decree under Article 182 became barred in the circumstances because the period of 3 years is to be reckoned from the original date of the decree though within that period the decree was declared inexecutable and though by the time that decision was set aside more than 3 years had elapsed from that date. Such a construction of Article 182 could not have been contemplated by the Legislature. Therefore it becomes necessary on the principle of Raineshvar Singh v. Homeshvar Singh either to interpret the words 'the date of the decree' in that Article as implying the condition that the decree should be legally executable during the whole of the three years' period; or in the alternative in case where the decree is declared inexecutable before the execution is otherwise barred and that decision is reversed later and the decree is thereby rendered executable, to regard the subsequent application as one falling under Article 181.

11. For these reasons the decision of the Lower Court is reversed and the execution petition remitted to the first Court for execution in accordance with law. The appellant will have his costs throughout.


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