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Raja Rajeswara Sethupathi Alias Muthuramalinga Sethupathi (Deaceased), Rajah of Ramnad, Through His Authorised Dewan T.S. Jambunatha Aiyar and anr. Vs. Kuppuswami Pillai - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1933Mad83; 140Ind.Cas.498; (1932)63MLJ792
AppellantRaja Rajeswara Sethupathi Alias Muthuramalinga Sethupathi (Deaceased), Rajah of Ramnad, Through His
RespondentKuppuswami Pillai
Cases ReferredRamudu Chetti v. Varadaraja Chariari
Excerpt:
- .....1926. the prior execution application was 'presented on 1st february, 1923. it is clear that the present application would be barred by limitation unless the facts relied upon by the decree-holder are sufficient to save limitation. the judgment-debtor was committed to jail on 28th february, 1923. this decree-holder has remitted by postal money orders to the jail superintendent subsistence allowances necessary for the detention of the judgment-debtor in prison. those remittances had been made on 24th march, 1923, 23rd april, 1923, 23rd may, 1923 and 25th june, 1923. it is argued that the remittance made on 25th june, 1923, is sufficient to save limitation as being a step-in-aid of execution. if this payment could be considered to be a step-in-aid of execution, it is clear that the.....
Judgment:

Madhavan Nair, J.

1. The question in this appeal is whether the application for execution is barred by limitation. The decree is dated 1st December, 1917. The application for execution was presented on 28th June, 1926, the date on which the first Court re-opened after the summer recess of 1926. The prior execution application was 'presented on 1st February, 1923. It is clear that the present application would be barred by limitation unless the facts relied upon by the decree-holder are sufficient to save limitation. The judgment-debtor was committed to jail on 28th February, 1923. This decree-holder has remitted by postal money orders to the Jail Superintendent subsistence allowances necessary for the detention of the judgment-debtor in prison. Those remittances had been made on 24th March, 1923, 23rd April, 1923, 23rd May, 1923 and 25th June, 1923. It is argued that the remittance made on 25th June, 1923, is sufficient to save limitation as being a step-in-aid of execution. If this payment could be considered to be a step-in-aid of execution, it is clear that the present application is not barred by limitation. The Lower Courts held that as the payment was made to the Superintendent of Jail, it cannot be considered that the application was made to the 'proper Court' within the meaning of Article 182 of the Limitation Act, to save limitation and therefore the present petition is barred by limitation.

2. The respondent relies on a decision of this Court in Ramudu Chetti v. Varadaraja Chariari by Krishnan, J. The facts of that case are not very clear. Apparently the learned Judge's view is that if payment was made within three years of the prior application, then such payment would be a step-in-aid of execution provided there was an application. And with regard to the application the learned Judge says:

We cannot presume that an application would have been made, when the decree-holder paid such charges.

3. Whether the application should be one to the Court or whether it would be enough if that was made to the Superintendent of Jail is not made clear in that judgment. But both the Courts in that case seem to have been of the opinion that a payment of maintenance charges would be a step-in-aid of execution. The first appellate Court did not consider the question whether there was an application at all because the payment in that case was made admittedly three years after the previous application. Therefore I find that that decision does not render much help for deciding this case.

4. It is argued that the payment of maintenance charges should be to the Court and since it was not made into the Court, it cannot be said that there was any request made to the Court to take a step-in-aid of execution. Under Order 21, Rule 39(4) Civil Procedure Code, the first payment in connection with the arrest of the judgment-debtor is to be made to the Court and the subsequent payments should be made to the officer in charge of the civil prison. So if an application was made to the Court on a subsequent occasion to receive the subsistence charges, that application would not be an application in accordance with the provisions of Order 21, Rule 39(4) ; the application should be made according to the provisions of the Code to the Superintendent of Jail who is constituted by the Code as the proper officer to receive the application. In my opinion an application made to him should in the circumstances be considered to be an application made to the Court under Article 182(5) of the Limitation Act.

5. The next question is whether it can be said that there was an application in this case. It is argued that there was no such application. The facts show that the amounts were sent by money order. In the circumstances of the case I am inclined to accept the despatch by money order to the Jail Superintendent as amounting to an application.

6. For the above reasons I am of opinion that the remittance made by the decree-holder on 25th June, 1923, in the present case is a step-in-aid of execution and therefore the present application is not barred by limitation. In the result the orders of the Lower Courts are set aside, and the petition will be taken on file and disposed of according to the merits by the District Munsif. The appellant will get his costs throughout.


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