Skip to content


Sree Krishna Doss Vs. Alumbu Ammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1911)21MLJ777
AppellantSree Krishna Doss
RespondentAlumbu Ammal
Cases ReferredIn Sambasiva Mudaliar v. Panchanada Pillai
Excerpt:
- - section 41 requires a court to which a decree is transferred for execution to certify to the court which passed it 'the fact of such execution, or where the former court fails to execute the same, the circumstances attending such failure. ' these provisions seem clearly to show that though the execution may be actually carried on by a different court, the court passing the decree has a large measure of control over the execution......reference to the statute of limitation. different rules have been enacted for the execution of decrees passed respectively by the high court and all other courts, and these are not affected by the court in which execution is actually taken out. thus in tincowri dasi v. debendra nath mooktrjee i.l.r. (1890) c. 491 the calcutta high court held that when the execution of a decree of the calcutta small cause court was transferred to the high court of calcutta, the limitation applicable to it was governed by article 179 and not by article 180 of act xv of i877. wilson j., who decided the case, pointed out that while the old procedure code (act viii of 1859) provided that the copy of a decree transmitted to a court for execution should have the effect of a decree of that court, sections.....
Judgment:

1. The question in this case is whether an application for execution of a decree of the Small Cause Court presented to the City Civil Court, to which it had been transmitted for execution, was rightly held by that court to be barred by limitation under Section 48 of the Civil Procedure Code. It is conceded that under Article 182 of the Limitation Act, which is applicable to the Small Cause Court, the application was not barred. Section 48 of the C.P.C. enacts that 'where an application to execute a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from the date of the decree sought to be executed.' This section is not applicable 'to any suit or proceeding' in the Presidency Small Cause Court. The learned judge of the City Civil Court holds that the law of limitation being a law relating to procedure, Section 48, which is applicable to the City Civil Court, must govern the case, and the application must therefore be held to be barred, and he relies upon the decision of the Privy Council in Her Highness Ruckmaboye v. Lulloo Bhoy Mottichund (1852) 5 M.I.A. 234 in support of his view. In that case the Privy Council held that in 1851, that is before the enactment of the Limitation Act of 1859 in this country the English statutes of limitation were applicable to suits in the Presidency town of Bombay as they had been long adopted and acted upon there. We do not think that the decision has any real bearing on this case. It is, no doubt, true that for some purposes limitation is a branch of the law of procedure. It would be so when questions of private international law have to be decided and a court has to settle the law of which state should be applied where there is a conflict of law. But for a long time the Indian Legislature has passed a different statute for regulating the manner in which suits and appeals are to be tried and for determining the, rules of limitation applicable to them. The question before us must be decided with reference to the statute of limitation. Different rules have been enacted for the execution of decrees passed respectively by the High Court and all other courts, and these are not affected by the court in which execution is actually taken out. Thus in Tincowri Dasi v. Debendra Nath Mooktrjee I.L.R. (1890) C. 491 the Calcutta High Court held that when the execution of a decree of the Calcutta Small Cause Court was transferred to the High Court of Calcutta, the limitation applicable to it was governed by Article 179 and not by Article 180 of Act XV of I877. Wilson J., Who decided the case, pointed out that while the old Procedure Code (Act VIII of 1859) provided that the copy of a decree transmitted to a court for execution should have the effect of a decree of that Court, Sections 227 and 228 of Act XIV of 1882 laid down only directions as to the manner of execution and did not make the decree one passed by the court to which it is sent for execution. The same view was held by a Full Bench of the same court in Jogamaya Dass v. Thackomani Doss I.L.R. (1896) C. 473. In Sambasiva Mudaliar v. Panchanada Pillai (1907) 17 M.L.J. 441 the learned Chief Justice and Justice Miller held that Article 179 was not applicable to an application for possession by a purchaser of immoveable property at a revenue sale by executing the certificate obtained by him under. Section 36 of the Revenue Recovery Act. The learned Judges followed the rulings of the Calcutta High Court referred to above.

2. Column 1 of Article 182 of the limitation Act states that it is applicable to 'the execution of a decree or order of any civil1 court not provided for by Article 182 or by Section 48 of the Code of Civil Procedure, 1908' There can be no doubt that the exception relating to Article 183 makes the court which passed the decree the test for determining the limitation for execution as that article itself shows whichever court may be executing the decree. In our opinion the exception relating to Section 48 of the C.P.C. should also naturally be understood as applicable to decrees passed by the courts to which that section is applicable. Although a decree may be transferred by the court which passed it to another court for execution the control of the execution is still left in several respects in the hands of the former court. Thus every application for execution by an assignee of a decree must be made to the court which passed the decree, and the right to grant execution or to refuse it rests with that Court (Order XXXI, Rule 16). An application for execution against the legal representatives of a deceased judgment-debtor has to be made to that court (Section 50.) Orders for the stay of execution can be passed only by the court passing the decree (Order XXI, Rule 26) only that court again could, under Section 257-A (now repealed) of the Code of 1882, sanction agreements giving time for the satisfaction of the judgment-debt or providing for the payment of a sum in excess of the sum due under a decree. Order XXI, Rule 28, provides that any order of the court by which the decree is passed in relation to the execution of such decree shall be binding upon the courts to which the decree is sent for execution. Section 46 of the present code entitles the court passing a decree to issue a precept to any other court competent to execute the decree to attach any property belonging to the judgment-debtor which the latter court is bound to obey. Section 41 requires a court to which a decree is transferred for execution to certify to the court which passed it 'the fact of such execution, or where the former court fails to execute the same, the circumstances attending such failure.' These provisions seem clearly to show that though the execution may be actually carried on by a different court, the court passing the decree has a large measure of control over the execution. Besides, to hold that the court executing the decree may apply a rule of limitation differing from that applicable to a decree of the court transmitting it, when the latter itself is executing it, would lead to anomalous consequences. For instance, suppose a decree of a mofussil court is sent up to the Presidency Shall Cause Court for execution, but before execution is granted the twelve years period provided for by Section 48 of the C.P.C. expires : would it be reasonable to hold that the decree-holder would acquire extension of the period within which he might obtain execution by getting the execution transferred to the Presidency Small Cause Court? In this very case it would still be open to the Small Cause Court itself to continue the execution of the decree. Further execution might be transferred from the Presidency Small Cause Court to the City Civil Court for reasons other than the absence of assets in the shape of moveable property available to the decree-holder for execution. The result of upholding the view of the lower court would be to hold that execution against moveable property could be had in one court and not in the other. There will also be difficulties in the application of the rule providing execution in case of cross decree under Order XXI, Rule 18. Suppose that A and B have cross decrees against each other, A's decree being passed by the Small Cause Court and B's by the City Civil Court, and that B's execution would be barred by limitation if Section 48 were applied, the consequence in such a case would be that if both decrees be produced in the Small Cause Court B would get the benefit of Rule 18, while if both were to be produced in the City Civil Court he would not - a result which would lead to wrangling between the parties for getting the execution into the hands of the court which would be favourable to each of them.

3. We are of opinion that under Article 182 of the Limitation Act the execution of the decree in the present case is not barred by limitation. We therefore reverse the order of the City Civil Court and remand the application for execution to it for disposal according to law. The costs of this appeal will abide the result.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //