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Maduri Lakshminarasimham Vs. Maduri Suryanarayana and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1948Mad246; (1947)2MLJ443
AppellantMaduri Lakshminarasimham
RespondentMaduri Suryanarayana and ors.
Cases ReferredSubramania Chettiar v. Alagappa Chettiar I.L.R.
Excerpt:
.....which was prominently brought to light in that decision and may have desired to take it out of the scope of clause (5), 12. in construing the clear words of a consolidating and amending statue like the present limitation act, it is in my opinion, not permissible to alter or to cut down their effect by a comparison with the language of the earlier statutes. an application for execution of the decree in respect of the sum leviable from one of the tenancies would not, it was held, stop the running of limitation against the decree in respect of sums leviable from the other tenancies by reason of anything contained in article 182, clause (5). it was stated that although the decree was in one suit and was set out on one sheet of paper the position was precisely the same as if the plaintiffs..........by the first defendant personally and by defendants 2 and 3 out of their family properties towards mesne profits from the year 1924 till date of suit (3 1st august, 1932) with interest thereon at the rate of six per cent per annum from date of plaint and also for the payment similarly of three sums of rs. 530 each towards mesne profits for the years 1932-33, 1933-34 and 1934-35 with interest on the respective amounts at six per cent, per annum from 1st march, 1933, 1st march, 1934, and 1st march, 1935. costs of the suit were also awarded to the plaintiff in a sum of rs. 1,019-15-0. as the three sums of rs. 530 together amounting to rs. 1,590 were profits which arose subsequent to suit and on which therefore no court-fee was paid with the plaint there was a direction that the plaintiff.....
Judgment:

Govindarajachari, J.

1. The appellant was the first judgment-debtor in O.S. No. 16 of 1932 on the file of the District Court, Vizagapatam, which on transfer was re-numbered as O.S. No. 6 of 1936 on the file of the Court of the Subordinate Judge of Chicacole. The suit was one for partition and consequential reliefs by a member of a joint Hindu family. The final decree which is dated 31st March, 1939, provided inter alia for the payment of Rs. 4,515 by the first defendant personally and by defendants 2 and 3 out of their family properties towards mesne profits from the year 1924 till date of suit (3 1st August, 1932) with interest thereon at the rate of six per cent per annum from date of plaint and also for the payment similarly of three sums of Rs. 530 each towards mesne profits for the years 1932-33, 1933-34 and 1934-35 with interest on the respective amounts at six per cent, per annum from 1st March, 1933, 1st March, 1934, and 1st March, 1935. Costs of the suit were also awarded to the plaintiff in a sum of Rs. 1,019-15-0. As the three sums of Rs. 530 together amounting to Rs. 1,590 were profits which arose subsequent to suit and on which therefore no court-fee was paid with the plaint there was a direction that the plaintiff should pay Rs. 157-7-0 towards the court-fee payable on that amount. The plaintiff applied for execution of the decree as to past mesne profits and costs in E. P. No. 59 of 1939 which was filed on 1st July, 1939. He made a reservation in the execution petition that as regards mesne profits due to him from the year 1932 up to the end of 1934 he 'will take out execution proceedings later on.' The execution petition was finally dismissed on 25th August, 1941, with a direction that the attachment should continue for one month. On 23rd September, 1941, the decree-holder again applied for execution in respect of past mesne profits and costs with a similar reservation as to mesne profits subsequent to suit. Certain properties of the judgment-debtors were sold in execution on 27th March, 1944. The judgment-debtors deposited Rs. 9,503 under Order 21, Rule 89 of the Civil Procedure Code and on 6th July, 1944, the sale was set aside, part satisfaction of the decree was entered up, the execution petition was struck off and the attachment was raised. Meanwhile in E. P. No. 92 of 1943, dated 25th March, 1943, the decree-holder applied for delivery of properties allotted to him but this petition was dismissed on 17th February, 1944.

2. On 24th April, 1944, the decree-holder applied in E. P. No. 65 of 1944, out of which the present Letters Patent Appeal has arisen for recovery of Rs. 2,756-9-6 being the amount of subsequent mesne profits and interest thereon and the court-fee payable in respect of the former amount, by bringing the immoveable properties of judgment-debtors 1 and 3 to sale. On 24th April, 1944, the decree-holder also applied in E. P. No. 264 of 1944 for extension of time for payment of the court-fee payable in respect of subsequent mesne profits and on the Court granting him the permission asked for he paid the court-fee on that day itself. In E. P. No. 65 of 1944, the principal contention was that it was barred by limitation. Upholding this contention the learned Subordinate Judge of Chicacole dismissed the petition but on appeal to this Court, Chandrasekhara Aiyar, J., held that the petition was in time. The present Letters Patent Appeal is against the latter finding and the only question that has been argued before us is one of limitation.

3. The first step in the argument of Mr. Narasaraju, the learned Advocate for the appellant is that even in respect of that portion of the decree which directs the payment of Rs. 1,590 towards the mesne profits subsequent to suit, limitation tegan to run on the date of the decree itself notwithstanding that execution of that part of the decree could not be sought without the previous payment of the court-fee payable on it by virtue of the provisions of Section 11 of the Court-Fees Act. This argument is fully supported by two decisions of this Court reported in Venkatappa v. Venkatappa : AIR1946Mad72 and Venkatmya Goundan v. Mallappa Goundan : AIR1946Mad348 , the former of which refers with approval to a decision of the Calcutta High Court reported in Kishorimohan Pal v. Provashchandra A.I.R. 1024 Cal. 351. Dealing with the requirement that a decree for partition must be drawn up on non-judicial stamp paper in accordance with Article 45 of the Indian Stamp Act, before it is put in execution, it was held in these decisions that the date of the decree for the purpose of Article 182 of the Indian Limitation Act is the date on which the judgment is pronounced and limitation runs from that date although the party in whose favour the decree is passed has not furnished the stamp paper for purpose of the drawing up of the decree.

4. The next step in the argument of the appellant's advocate requires closer consideration. He argues that when a decree grants distinct reliefs arisirg out of different causes of action there are in substance a number of separate decrees though set out on one sheet of paper. With this as the major premises it is contended that an earlier execution petition filed in respect of one of such decrees cannot be relied upon under Clause (5) of Article 182 as providing a fresh starting point of limitation for a later execution petition concerning another of such decrees. If this argument is to prevail the result will be that the decree as to future mesne profits in respect of which limitation began to run on 31st March, 1939, cannot be executed more than three years thereafter and the present execution petition which was filed on 24th April, 1944, will be out of time, E.P. No. 59 of 1939 and E. P. No. 131 of 1941 being according to this argument execution petitions relating to another decree and the final orders passed in those execution petitions being consequently unavailable for the extension of the period of limitation under Clause (5) of Article 182. In support of his proposition that the portioh relating to mesne profits prior to suit and the portion relating to mesne profits after suit arose out of two distinct causes of action the appellant's advocate cited Ponnammal v. Ramamirtha Aiyar (1914) 28 M.L.J. 127 : I.L.R. Mad. 829 Doraiswami v. Subramania : AIR1918Mad484 and Ramalinga Sethupathi v. Andiappan : AIR1931Mad717 . In the first of these cases it was held that a claim for possession and a claim for mesne profits which accrued prior to the institution of the suit for possession constitute two separate causes of action and that the later suit is not barred under Order 2, Rule 2 of the Coda of Civil Procedure. In Doraiswami v. Subramania : AIR1918Mad484 , it was held by Wallis, C.J. and Kumaraswami Sastriar, J. (Ayling, J., contra) that when in a suit for possession and past mesne profits and future mesne profits the Court gives a decree for mesne profits down to the date of suit and says nothing about subsequent mesne profits, a fresh suit to recover them is not barred under Section 11 of the Code of Civil Procedure, read with explanation V to the said section which provides that any relief claimed in a plaint which is not expressly granted by the decree, shall be deemed to have been refused. The principle on which the decision of the Full Bench was based was that the cause of action in respect of future mesne profis which obviously did not arise by the date of suit was distinct from the causes of action in respect of the claim for possession and the claim for past, mesne profits. In Ramalinga Sethupathi v. Andiappan : AIR1931Mad717 , it was held that when a decree gives possession of immoveable property and past mesne profits and future mesne profits the decreeholder is entitled to execute the decree with reference to possession irrespective of the question whether court-fee has or has not been paid on the future mesne profits decreed to him by the same decree. I may at once point out that Mr. Ramanarasu, the learned advocate for the respondent does not dispute the proposition that claims for past mesne profits and future xenon profits arise out of two distinct causes of action and is content to rest his case on the argument that the reliefs in respect of past and future mesne profits are nevertheless parts of the same decree and not two different decrees.

5. It may also be convenient at this stage to refer to a group of decisions cited on behalf of the respondent decree-holder. In Radhakrishan Lall v. Radhe Pershad Singh I.L.R.(1891) Cal. 515 it was decided that the Code of Civil Procedure does not prevent a person from making separate and successive applications for execution of a decree giving reliefs of different characters, in respect of each such relief and that Section 43 of the Code of Civil Procedure of 1882, corresponding to Order 2, Rule 2 of the Code of Civil Procedure, 1908, did not apply to proceedings in execution of a decree. In Upendranath Bose v. K. B. Dutt I.L.R.(1926) Cal. 582 there was a decree of the High Court which made the judgment-debtors liable for payment of costs in the trial Court and in the High Court and an application for execution of that decree confined to the costs of the High Court only was first made and it resulted in partial satisfaction. It was held that a subsequent application for execution of the decree as to the costs of the lower Court and for the unrealised balance of the costs of the High Court was sustainable and that Order 2, Rule 2 of the Civil Procedure Code places no bar. The decision in Balasubramania Chettiar v. Swarnammal : (1913)25MLJ367 is to the same effect and is clear authority for the position that there is nothing in the Code of Civil Procedure to prevent a decree-holder from presenting successive applications for realising different portions of his decree. The correctness of these decisions is not questioned by the appellant's advocate. He states that it is no part of his argument that the execution petition with which we are concerned is not maintainable by reason of earlier execution petitions not comprising the relief as to the future profits and by reason of their being confined to the other reliefs granted by the decree. He, however, maintains that those execution petitions cannot be pressed into service for invoking the application of Clause (5) of Article 182, because they relate to what would amount in his argument to a different decree or decrees.

6. Article 182 of the Indian Limitation Act provides a period of three years for the execution of a decree of a Civil Court. The starting point of limitation is laid down in the third column and the material clauses for the purpose of this case are as follows:

Time from which period begins to run.

(1) the date of the decree or order....

(5) (where the application next hereinafter mentioned has been made) the date of the final order passed in an application made in accordance with law to the proper Court for execution, or to take some step in aid of execution of the decree or order....

Explanation 1.-Where the decree or order has been passed severally in favour of more persons than one, distinguishing portions of the subject-matter as payable or deliverable to each, the application mentioned in Clause 5 of this Article shall take effect in favour only of such of the said persons or their representatives as it may be made by. But where the decree or order has been passed jointly in favour of more persons than one, such application, if made by any one or more of them, or by his or their representatives, shall take effect in favour of them all.

Where the decree or order has been passed severally against more persons than one, distinguishing portions of the subject-matter as payable or deliverable by each, the application shall take effect against only such of the said persons or their representatives as it may be made against. But, where the decree or order has been passed jointly against more persons than one, the application, if made against any one or more of them or against his or their representatives, shall take effect against them all.

To construe the word 'decree' occurring in this article it is not only permissible but necessary to refer to the definition of a decree contained in Section 2(2) of the Code of Civil Procedure. According to that definition a 'decree' means a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.

7. A decree is thus spoken of in the singular notwithstanding that several rights may have been adjudicated upon and several matters may have been in controversy in the suit and may therefore have been dealt with in the decree If there can be a single suit in respect of several rights and several matters in controrversy it would follow that the formal expression of the adjudication in such suit is a decree and not several decrees. After having provided in Clause (5) of Article 1812 that the date of the final order passed in an application for execution of a decree will provide a fresh starting point for purposes of limitation the Legislature goes on to deal with four possible cases which may arise where there is a plurality either of decree-holders or of joint debtors : (1) where a decree has been passed severally in favour of more persons than one and there are distinguishing portions of the subject-matter payable or deliverable to each ; (2) where a decree has been passed jointly in favour of more persons than one ; (3) where a decree has been passed severally against more persons than one and there are distinguishing portions of the subject-matter payable or deliverable by each ; and (4) where a decree has been passed jointly against more persons than one. The first two of these cases are dealt with in the first paragraph of explanation (1) while the third and the fourth are dealt with in the second paragraph. As regards the first case it is laid down by the explanation that any application for execution made by one of such decree holders can be availed of only by him for the purpose of Clause (5) and not by any one of the other decree-holders, while in the second an application by one of several joint decree-holders can be relied on by another decree-holder or other decree-holders for the purpose of Clause (5). Similarly in the third case an application for execution against a judgment-debtor provides no fresh starting point when execution is sought in a later execution petition against another judgment debtor in respect of another distinguishing portion of the subject-matter while in the fourth case an application against one of several judgment-debtors who are jointly liable can be availed of for the purpose of Clause (5) in support of a later application for execution against one or more of the other judgment-debtors. It will be noticed that the explanation throughout speaks of a decree and that even where there are reliefs granted severally in favour of the several decree holders or against several judgment-debtors, those reliefs are described only as distinguishing portions of the subject-matter of the decree.

8. In the present case the amounts decreed are payable towards past mesne profits, future mesne profits and costs, by the same judgment debtors, viz., defendants 1 to 3 and judgment-debtors 1 and 3 against whom execution is now sought were parties to every one of the previous execution petitions.

9. The construction I am inclined to place upon Art, 182 receives considerable support from the decision in Kanniammal v. Balakrishna Tharvddy : AIR1935Mad557 That was a case where several reliefs arising out of several causes of action were asked for, possession of a house, a mandatory and a prohibitory injunction in respect of the right to light and air, a right of passage, a right of drainage and so on Same of the reliefs were granted and some were denied. An appeal was preferred by the plaintiff in respect of some of the reliefs which were refused. A question arose whether an execution petition in respect of reliefs which were granted by the trial Court would be barred by limitation if not filed within three years from the date of the decree of that Court or would be in time if filed within three years from the date of the decree of the appellate Court. The discussion principally turned on Article 182(2) of the Limitation Act. The following observations are, however, quite apposite:

In all cases, what Article 182(2) of the Limitation Act refers to is a decree, viz., one decree, and it is not permissible for Courts in execution to look into the matter and say that, as there are several reliefs which are severable, the decree, although nominally one decree, consists of several decrees.

In my opmion the reasoning applies with equal force to Clauses (1) and (5).

10. On behalf of the appellant considerable reliance was placed on the decisions in Wise v. Rajnarain Chuckerbutty (1872) 19 W.R. 30 and Dhirendranath v. Nichintapore Co. 36 Ind.Cas. 398. The former decision was given under the Limitation Act XIV of 1859, Section 20 which may be said to correspond in effect to Article 182, Clauses (1) and (5). The head note correctly brings out the point of the decision and may be fully quoted:

A decree against one person for the rent of one period and against another for the rent of another period is in fact two decrees, i.e., a separate decree against each for the sum for which he is liable. In such a case the decree is to be kept in force against each, and the proceedings in execution against one of the defendants are not sufficient to prevent the law of limitation applying to the other defendant.

11. It is obvious that if the case had arisen under the present Limitation Act it would have fallen directly under the first part of the second paragraph of explanation (1) It was argued by Mr. Narasaraju that since that decision was given with reference to a section which contained no provision corresponding to the present explanation No. (1) it must be regarded as an authority on the interpretation of Clauses (1) and (5). It is arguable that the Legislature may have had this decision in contemplation when they introduced an explanation corresponding to the present explanation (1) in the Limitation Act of 1877 and that it meant specifically to provide for a case of that description. It is not, however, possible to say that the enactment in 1877 of what corresponded to our present explanation (1) meant that the Legislature approved of the decision in Wise v. Rajnamin Chuckerbutty (1872) 19 W.R. 30 that it was satisfied that Section 20 of the Limitation Act of 1859 was properly construed therein and that it only intended to make explicit what was previously implied in the Act of 1859, or in other words, that the Legislature was merely describing by way of an illustration one of several cases which may come under the principal portion of Article 179 of the Act of 1877 (corresponding to our present Article 182). It can be said with equal plausiblity on the other side that while not agreeing with the decision in Wise v. Rajnarain Chuckerbutty (1872) 19 W.R. 30 in its construction of Section 20 of the Limitatiom Act of 1859 the Legislature may have been anxious to provide for a case which was prominently brought to light in that decision and may have desired to take it out of the scope of Clause (5),

12. In construing the clear words of a consolidating and amending statue like the present Limitation Act, it is in my opinion, not permissible to alter or to cut down their effect by a comparison with the language of the earlier statutes.

13. In Dhirendmnath v. Nichintapore Co. 36 Ind.Cas. 398 the facts were somewhat peculiar. In a suit for recovery of arrears of rent in respect of three tenancies held by the defendants a decree which was made at the instance of the plaintiffs specified the sums due in respect of and leviable from each of the tenancies. An application for execution of the decree in respect of the sum leviable from one of the tenancies would not, it was held, stop the running of limitation against the decree in respect of sums leviable from the other tenancies by reason of anything contained in Article 182, Clause (5). It was stated that although the decree was in one suit and was set out on one sheet of paper the position was precisely the same as if the plaintiffs had brought three distinct sets of suits against the tenants one in respect of each tenancy. The rulings that were quoted in support of this decision, however, were all cases where there were separate decrees against different defendants or groups of defendants. The learned Judges observed that they saw no distinction between decrees made against different defendants and decrees made against the same defendants in respect of different properties. They pointed out that the decree was dafted in the manner it was, at the instance of the plaintiffs and for their benefit in order to enable them to proceed with execution under the provisions of the Bengal Tenancy Act with all the consequences which result therefrom, that having sought that advantage and having been awarded relief accordingly it was not open to the plaintiffs to contend that there was only one decree when they found themselves at a disadvantage by reason of the operation of the law of limitation. I am unable to see any compelling logic underlying this decision. It is not possible to deduce from it any general principle necessitating or even permitting a departure from a grammatical construction of the article and its several clauses. In dealing particularly with a statute of limitation which curtails the rights of parties I would point out that it is for the litigant who pleads the bar, to justify a construction which is other than literal and which would have the effect of depriving the party entitled to a right, of the benefit arising by a literal construction. No reason has been shown for reading Article 182 and particularly Clause (5) thereof in a manner different from its prima facie meaning. There is no inconvenience which would result from a strict grammatical construction of that provision, while it is easy to visualise considerable hardship and complication if it is to be construed in the manner suggested on the appellant's behalf.

14. It now remains to deal with certain decisions which have been given with reference particularly to the latter portion of the second paragraph of explanation (1). The question was raised in those cases whether a decree which, as to a part of it, is a joint decree against several judgment-debtors while as to the rest, grants separate relief or reliefs against one or more judgment-debtors, can be said to be a joint decree against more persons than one within the meaning of the latter part of the second paragraph of explanation (1). In Subramania Chettiar v. Alagappa Chettiar I.L.R.(1906) Mad. 268 it was held that a decree which contained a provision for recovery of costs from A, B and C and a provision for payment of manse profits by A and B only, is a joint decree against more persons than one within the meaning of the provision just referred to and that an application to execute the latter part of the decree will save limitation when execution is sought subsequently of the former. It was similarly held in Pattanayya v. Pattayyav (1905) 50 M.L.J. 313 that a decree for recovery of possession of certain immoveable properties from defendants 9 and 10 coupled with a direction for recovery of future rental from defendant 9 in respect of some of the properties and a direction for recovery of future rental from defendant 10 in respect of other properties is still a joint decree and that to invoke the application of the provision under consideration it is quite enough if any portion of a decree makes the judgment-debtors jointly liable. The same view prevailed in Muhammad Ishak Chowdhury v. Kurunamoy Chowdhury A.I.R. 1946 Cal. 266 though an Allahabad Bench expressed its dissent in Nandlal Saran v. Dharam Kirti Saran I.L.R. (1925) All. 377 form the view taken in Subramania Chettiar v. Alagappa Chettiar I.L.R.(1906) Mad. 268. It is unnecessary to discuss these decisions any further as the decree under consideration is not one in which one relief is granted against several persons jointly while another or other reliefs are granted severally against one or more of them. All the reliefs granted in the present case are directed against all the three defendants. The distinction that is sought to be made on the appellant's behalf between the several portions of the decree is based on the nature of the several reliefs and not on any difference among the persons against whom those reliefs are directed.

15. For the reasons already stated I hold that there is only one decree within the meaning of Article 182 notwithstanding that it includes several reliefs based upon distinct causes of action and that it is open to the decree-holder to rely upon Clause (5) and ask for limitation to be calculated from the dates of the final orders in previous execution petitions notwithstanding that these petitions sought execution of reliefs other than that sought to be executed in the present. In this view the judgment under appeal is correct and this appeal is therefore dismissed with costs.

Frederick William Gentle, C.J.

16. I have had the advantage of perusing the judgment of my learned brother. I agree with the conclusions at which he has arrived and the reasons given, and have nothing I can add.


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