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P.M.M. Velliappa Chettiar and anr. Vs. S.N. Subrahmanyam Chetty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1916)ILR39Mad485
AppellantP.M.M. Velliappa Chettiar and anr.
RespondentS.N. Subrahmanyam Chetty
Cases ReferredThe Queen v. Lofthouse
Excerpt:
.....from the time the decree is first transmitted for execution and the district judge had power to recall the case under section 24, clause (1)(6), civil procedure code, in case execution is not taken out within the time fixed in rule 161(a). 4. [after stating the facts as mentioned above the judgment of the high court proceeded as..........court to call up the records from the sub-court on the ground that under rule 161-a of the civil rules of practice the proceedings taken in execution were void as they were instituted more than six months after the transmission of the decree by the calcutta high court. the district judge upheld this contention and ordered 'that the decree will be recalled from the sub-court and returned to the high court of calcutta.' the present appeal has been presented against this order.2. a. krishnaswami ayyar or the appellants.--my contentions are (1) that rule 161(a) of the civil rules of practice is ultra vires as it puts an arbitrary limit of time within which execution must be taken in the court to which the decree is sent for execution. this rule is inconsistent with civil procedure.....
Judgment:

Seshagiri Ayyar, J.

1. The appellants obtained a decree for money against the respondent in the Calcutta High Court. As the respondent was residing within the. jurisdiction of the Subordinate Judge's Court of Ramnad, the decree was transmitted on the 2nd September 1912 under the latter portion of Order XXI, Rule 5, to the District Court of Ramnad for execution. This latter Court sent the decree to the Subordinate Judge. An application for execution was made to him on the 22nd of April 1913 and certain properties were attached. While the application was pending in the Sub-Court, the respondent moved the District Court to call up the records from the Sub-Court on the ground that under Rule 161-A of the Civil Rules of Practice the proceedings taken in execution were void as they were instituted more than six months after the transmission of the decree by the Calcutta High Court. The District Judge upheld this contention and ordered 'that the decree will be recalled from the Sub-Court and returned to the High Court of Calcutta.' The present appeal has been presented against this order.

2. A. Krishnaswami Ayyar or the appellants.--My contentions are (1) that Rule 161(a) of the Civil Rules of Practice is ultra vires as it puts an arbitrary limit of time within which execution must be taken in the Court to which the decree is sent for execution. This rule is inconsistent with Civil Procedure Code. In such cases time is not of the essence of the rule. See Maxwell's Interpretation of Statutes, 5th edition, pages 598 and 599 (2). The period of six months must be counted from the time the decree is sent to the Subordinate Court by the District Court and in that view the present application is not barred as it was made within six months from that date (3). The District Court had no power to recall the decree from the Subordinate Court.

3. A. Venkatarayalayya for the respondent.--The rule is not ultra vires as it was made under powers given to the High Court by the Civil Procedure Code. Being a rule of procedure the High Court is entitled to fix a time-limit within which execution should be taken in the Court to which the decree is transmitted. The Sub-Court is functus officio after the six months and further execution is a nullity. The rule clearly enacts that the six months' period should' be counted from the time the decree is first transmitted for execution and the District Judge had power to recall the case under Section 24, Clause (1)(6), Civil Procedure Code, in case execution is not taken out within the time fixed in Rule 161(a).

4. [After stating the facts as mentioned above the judgment of the High Court proceeded as follows:--] Mr. Krishnaswami Ayyar has argued a 'number of points against the view of the District Judge. He contended that there will be a further period of six months from the date of the District Court transferring the decree for execution to the Sub-Court. This is obviously untenable. He next contended that the District Judge had no power to recall the decree from the Subordinate Judge. Section 24, Clause (b) is comprehensive enough to enable the District Court to withdraw a transmitted execution proceeding to its own file and to dispose of it. The learned vakil has also argued that the exceeding of the time limit does not render the proceedings infructuous.

5. The aim of the rule is to compel the decree-holder to take prompt steps to enforce the decree. The rule is in the nature of an instruction or direction to the Court to return the papers to the transmitting Court, if no steps were taken by the decree- holder within six months to execute the decree. A violation of this rule does not render the proceedings taken void ab initio. In such cases, time is not of the essence of the stipulation. Mr. Justice Denman points out in Caldow v. Pixell (187) 2 C.P.D. 562: 'The cases cited before us establish that, where a public officer is directed by a statute to perform a duty within a specified time, the provisions as to time are only directory, and also that in considering whether a statute is imperative, a balance may be struck between the inconvenience of rigidly adhering to, and the inconvenience of sometimes departing from its terms.' Mr. Justice Lopes says that in deciding whether a rule is mandatory or directory the possibility of justice suffering from a too rigid application of the time limit should be taken into account. In The Queen v. Ingall (1876) 2 Q.B.D. 199, both Mellor and Lush, JJ., enunciate the principle. Reference may also be made to Brumfilt v. Bremner (1860) 9 C.B.1 and to The Queen v. Lofthouse (1866) L.R. 1 Q.B. 433. We think the reason underlying these pronouncements is applicable to the present case. The effect of holding that the Sub-Court was functus officio after six months and that the proceedings in execution are a nullity would be to allow the judgment-debtor to escape the liability which the law subjects him to. The rule in question is not an adjunct to the Code of Civil Procedure. It is a rule of convenience issued by the High Court with the object of inducing decree-holders to take early steps to execute their decrees. Although Section 148 of the Code of Civil Procedure may not apply in terms to the present case, its analogy may be utilised for the, purpose of showing that the legislature regards such provisions as directory in their nature and not mandatory. We must reverse the order of the District Judge and direct him to return the records to the Sub-Court to enable the appellants to execute the decree under the process already issued. Appellants are entitled to their costs in this Court.


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