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Ratnam Ayyar Vs. Krishna Doss Vital Doss - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported in(1898)ILR21Mad494
AppellantRatnam Ayyar
RespondentKrishna Doss Vital Doss
Cases ReferredAnantharama Ayyan v. Karuppanan Kalingirayan I.L.R.
Excerpt:
limitation act - act xv of 1877, sections 7, 19, schedul ii, article 165--dispossession in execution--application on behalf of a minor. - - there can be no doubt as held by the lower appellate court that article 165, schedule ii, indian limitation act, is applicable to a case where the applicant is a party bound by the decree as well as where he is a stranger see vythilinga mupanar v. but though the application here was presented after the expiry of thirty days from the date of dispossession prescribed by that article, yet it is clear that the application was in time, inasmuch as the applicant was, when the right to apply accrued to him as well as on the date of the application, a minor;.....to the suit. moreover, even if it were possible to treat the application in question as one for execution of a decree, it could not be held that section 7 would be inapplicable to such an application; for anantharama ayyan v. karuppanan kalingirayan i.l.r. 4 mad. 119 is a direct authority for the proposition that applications for execution of decrees come within section 7. the lower courts were therefore in error in holding that the appellant's application was time-barred. we set aside the orders of the lower courts and direct that the application be restored to the file and be disposed of according to law.2. the costs in this court and in the lower appellate court will abide and follow the result.
Judgment:

1. The respondent obtained against the appellant and others a decree for the division of some lands held in common by the parties to the suit and for the delivery of the respondent's share thereof. In execution of the decree some lands were delivered to the respondent. The appellant presented an application objecting to the delivery of certain of the parcels and complaining that he was dispossessed of them improperly. Both the Lower Courts dismissed the application on the ground that it was barred by limitation. There can be no doubt as held by the Lower Appellate Court that Article 165, schedule II, Indian Limitation Act, is applicable to a case where the applicant is a party bound by the decree as well as where he is a stranger see Vythilinga Mupanar v. Sithalakshmi Ammal Appeal against Appellate Order No. 25 of 1889 unreported. and that article therefore is the one by which the present case is governed. But though the application here was presented after the expiry of thirty days from the date of dispossession prescribed by that article, yet it is clear that the application was in time, inasmuch as the applicant was, when the right to apply accrued to him as well as on the date of the application, a minor; for unquestionably the case falls within Section 7 of the Limitation Act (XV of 1877). The respondent's pleader laid much stress on the Full Bench decision in Rama v. Venkatesa I.L.R. 5 Mad. 171 . There it was held that property or right in Section 19 of the Limitation Act did not include such a right as that which entitles a party to a suit or proceeding to make certain applications in the course of such suitor proceeding. It is, however, difficult to see how this decision affects the present case. Now Section 7, by its very terms, applies to all applications for which a period of limitation is prescribed in the second schedule to the Act, and the application in question is of course one for which the schedule does prescribe a period. It is scarcely necessary to say that the appellant's application is not, as was assumed by the respondent's pleader in the argument, an application for execution of a decree, but one which relates to a question arising in execution between parties to the suit. Moreover, even if it were possible to treat the application in question as one for execution of a decree, it could not be held that Section 7 would be inapplicable to such an application; for Anantharama Ayyan v. Karuppanan Kalingirayan I.L.R. 4 Mad. 119 is a direct authority for the proposition that applications for execution of decrees come within Section 7. The Lower Courts were therefore in error in holding that the appellant's application was time-barred. We set aside the orders of the Lower Courts and direct that the application be restored to the file and be disposed of according to law.

2. The costs in this Court and in the Lower Appellate Court will abide and follow the result.


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