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M.L.R.M. Lakshmanan Chettiar and ors. Vs. P.L.S.P. Alias Sm. P.L. Malayandi Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 97 of 1948
Judge
Reported inAIR1954Mad177; (1953)2MLJ446
ActsLimitation Act, 1908 - Article 182(5)
AppellantM.L.R.M. Lakshmanan Chettiar and ors.
RespondentP.L.S.P. Alias Sm. P.L. Malayandi Chettiar and ors.
Appellant AdvocateR. Gopalaswami Iyengar, Adv.
Respondent AdvocateK. Parasurama Iyer, Adv.
DispositionAppeal allowed
Cases ReferredKesavuloo v. Official Receiver
Excerpt:
limitation - execution petition - article 182 (5) of schedule to limitation act, 1908 - final decree passed in confirming decision in preliminary decree - execution petition filed - execution petition challenged on ground of limitation - limitation period starts from passing of final decree where finality attached with decision of preliminary decree - execution petition filed within three years of passing of final decree - execution petition not barred by limitation. - - 120 of 1946 was clearly out of time and the subsequent e. no direct authority has been cited before us in support of the appellant's contention but in our opinion it does not matter because observations in text books as well as the principle deducible from decided cases support the view that the final order can only..........of the execution of the decree, then the final order in that case can only be the ultimate decision passed by the high court on 13-7-1943 and not the interme-diate stages through which that petition passed and the orders passed during the intervening stages. no direct authority has been cited before us in support of the appellant's contention but in our opinion it does not matter because observations in text books as well as the principle deducible from decided cases support the view that the final order can only be that passed in appeal.in mitra's law of limitation and prescription, 7th edn. vol. ii, at page 1303 the learned author says as follows:'final order: after the amendment of 1927, the result of the application for execution, namely, the final order passed on the.....
Judgment:

1. In O. S. No. 1 of 1935 on the file of the Subordinate Judge, Devakotta a decree was passed in favour of the plaintiffs for a sum of Rs. 30263-3-0 with interest and proportionate costs. There was a further provision that the plaintiffs do execute a registered release deed in accordance with an agreement marked in the case as Ex. A and that the decree be executed only after the execution of the release deed. The result of ihis provision was that the plaintiffs did not have the unregistered right of executing the decree before complying with the provision for execution of the release deed. The present appellants are the legal representatives of the first plaintiff whose application for executing the decree has been dismissed on the ground of bar of limitation.

2. A few dates have to be mentioned in order to correctly understand the relevancy of the legal arguments. The trial court passed the decree on 24-8-1937 and on appeal therefrom the original decree was confirmed on 17-4-1941. Thereafter E. P. No. 318 of 1941 was filed forthe attachment of moveable properties. This application was resisted by the judgment-debtors on the ground that the decree-holders had not complied with the provision regarding the execution of the release deed and that therefore the decree could not be executed. The learned Subordinate Judge enquired into the matter and overruled the objection on 10-7-1942, giving it as his reason that the release deed filed in Court was valid and directed the attachment of the moveable properties. But the warrant could not be executed as it was impossible to find any moveable properties which could be attached. The result was that the petition was dismissed on 31-7-1942. But against the order dated 10-7-1942 overruling the contention regarding the execu-tability of the decree, the judgment-debtors filed C. M. A. No. 329 of 1942 and obtained stay of execution which was later on dissolved. C. M. A. No. 329 of 1942 came up for final disposal on 13-7-1943 and was dismissed with a reservation that the question regarding ' the validity or otherwise of the release deed filed by the decree-holders was left open.

On 5-7-1946, E. P. No. 120 of 1946 was filed by the decree-holders again for execution but as it was found that the first defendant died, it was dismissed on 17-8-1946. Thereafter E. P. No. 8 of 1947 was filed on 7-11-1946 for execution of the decree out of which this appeal has arisen. On the objection raised by the judgment-debtors that the execution of the decree has become barred because more than three years had elapsed from 10-7-1942, when E. P. No. 120 of 1946 was filed on 5-7-1946, the learned Subordinate Judge accepted their contention and held that the execution petition was barred by limitation. He also found that the decree-holders have complied with the provision regarding the execution of the release deed and that therefore the release deed put into court with E. P. No. 318 of 1941 was a proper one.

3. E. P. No. 120 of 1946 was filed within three years of the date, viz., 13-7-1943 when the High Court confirmed the order of the Subordinate Judge in E. P. No. 318 of 1941 dated 10-7-1942. If the period of limitation is computed from the date of the appellate order then E. P. No. 120 of 1946 is in time. If, on the other hand, the period has to be computed from the date of the order of the Subordinate Judge, viz., 10-7-1942 then E. P. No. 120 of 1946 was clearly out of time and the subsequent E. P, No. 8 of 1947 was also barred by limitation. What is contended on behalf of the judgment-debtors is that the confirmation by the High Court on 13-7-1943 of the order of the Subordinate Judge dated 10-7-1942, cannot be said to be a final order passed on an application by the decree-holder which was a step-in-aid of the execution as contemplated in Clause 5 of the third column of Article 182 of the Limitation Act.

The phrase 'the final order passed on an application made' was introduced for the first time by Act 9 of 1927 and what we have to see is, what is meant by the words 'final order'. It is conceded that E. P. No. 318 of 1941 was an application in accordance with law to the proper court for the execution of the decree or to take some step-in-aid of the execution of the decree. The point put forward on behalf of the judgment-debtors is that since C. M. A. No. 329of 1942 was filed by them, the disposal of it on 13-7-1943 cannot be said to be a final order passed on 'an application by the decree-holder' for the execution of the decree or to take some step-in-aid of execution of the decree. According to their argument the final order was passed on 10-7-1942 when the executing court overruled the contention of the judgment-debtors and directed attachment of moveable properties. Thereafter, there was no impediment to the execution of the decree at the instance of the decree-holders and the period of limitation should be computed from that date. It is conceded also that if .the decree-holders had preferred an appeal to the High Court as a result of the dismissal of their application by the executing court, then the final order passed on the decree-holders' appeal would be a final order as contemplated in clause 5 in the third column to Article 182 of the Limitation Act. But since the appeal to the High Court was at the instance of the judgment-debtors, it is not possible to invoke that provision at all.

4. Before the learned Subordinate Judge the decree-holders cited the decision of the Privy Council in -- 'Annamalai Chettiar v. Valli-ammai Achi' but the learned Judge distinguished the same on the ground that the final order in that case was passed on an appeal preferred by the decree-holder therein and not at the instance of the judgment-debtor as is the case before us, and that therefore in that case the requisites of the phrase 'final order passed on an application made' have been complied with. Their Lordships held that an appeal to a superior court to set aside an order of a Subordinate Judge raising an attachment ordered earlier is an application according to law to take a step-in-aid of the execution of the decree. It is also an application to the proper court for, when an application for execution is dismissed by the lower court, the appellate court is the proper, and indeed the only, court which can then execute the decree. The decision of this court reported in -- 'Annamalai Chettiar v. Valli-ammai Achi', AIR 1943 Mad 398 (B) was reversed by the Judicial Committee. At page 178 the following pertinent observations occur:

'E. P. No. 418 of 1934 was an application, made according to law for execution of the decree and it was finally disposed of by the order of the Court of appeal made on the 27th September 1938, which brings the case within the first branch. Further the application to the court of appeal of the 3rd December 1936 to set aside the order of the Subordinate court raising the attachment was an application according to law to take a step in aid of the execution of decree.'

We do not think that the distinction made by the learned Judge in the court below is a proper one. There can be no dispute whatever that an appeal is a continuation of the proceedings in the original court and the moment an appeal has been lodged and entertained by a superior court, the finality attached to the decision of the Subordinate Judge is thereafter set at large and the decision in the pro'ceedings is the ultimate and final conclusion arrived at by the appellate court. It should therefore be taken that the overruling of the objections regarding the executabllity of the decree by the Subordinate Judge on 10-7-1942 was only anintermediary order and not one which finally terminated the proceedings, because the intermediary order against the judgment-debtors was taken in appeal to the High Court and a final order was passed by the High Court only on 13-7-1943. In our opinion, it does not matter as to who figured as the appellant before the superior court because whosoever invoked the superior forum it is only the final result that matters and not the party at whose instance the court's powers were invoked.

We have no doubt whatever that when once it is granted that E. P. No. 318 of 1941 is an application made by a decree-holder to the proper court for the execution of the decree or for taking some step-in-aid of the execution of the decree, then the final order in that case can only be the ultimate decision passed by the High Court on 13-7-1943 and not the interme-diate stages through which that petition passed and the orders passed during the intervening stages. No direct authority has been cited before us in support of the appellant's contention but in our opinion it does not matter because observations in text books as well as the principle deducible from decided cases support the view that the final order can only be that passed in appeal.

In Mitra's Law of Limitation and Prescription, 7th Edn. Vol. II, at page 1303 the learned author says as follows:

'Final Order: After the amendment of 1927, the result of the application for execution, namely, the final order passed on the application is the material point of time that is relevant for purposes of Article 182 (5). The final order of the final court of appeal, where there has been an appeal, would be the final order for the purposes of Article 182 (5).'

As authority for this observation a decision of the Calcutta High Court in -- 'Golum Mustafa v. Arifunnessa', 51 Cal WN 316 (C) and a decision of the Punjab High Court in -- 'Abheram v. Bhola', 157 Ind Cas 604 (Lah) (D) are cited. In the Calcutta case, the learned Judges followed the observations in -- '157 Ind Cas 604 (Lah) (D)'. But there the appeal was at the instance of the decree-holder and not at the instance of the judgment-debtor as in the present case. The Calcutta case decides the same principle as was laid down earlier by their Lordships of the Judicial Committee in though the Privy Council decision has not been referred to by the learned Judges Nasim Ali A. C. J. and Hindley J. of the Calcutta High Court. The following observations of the learned Judges may be cited as useful:

'The final order on the application for execution must be taken to have been made on the day when this court finally disposed of the dispute between the decree-holder and the judgment-debtors as regards the amount recoverable under the decree.'

5. Mr. K. Parasurama Aiyar for the judgment-debtors cited -- 'Kristo Coomar Nag v. Mahabat Khan', 5 Cal 595 (E) which according to the learned counsel supports his contention. It was held therein that where a judgment-debtor opposed an application for execution of a decree and that objection was overruled by the trial court which ordered the execution of the decree and the judgment-debtor preferred an appeal which was also dismissed, then in computing the period of limitation under Article 179 of the Limitation Act of 1877, the date of dismissal by the trial Court should be taken to be the starting point and not the date when the appeal was dismissed by the appellate Court. But we have to remark in this connection that the provisions of the Article in the Act of 1877 were different from what they are now. The expression 'final order passed on an application' was not there. Sut what existed at that time was the following:

'An application to the proper court to take some step in aid of the execution',

and the step-in-aid was then considered to be the application by the decree-holder to execute the decree in the trial court.

The learned Judges also held that the appeal by the judgment-debtor cannot be construed as an application made to the proper court for execution. But in view of the observations of the Judicial Committee in these observations have no force. The meaning of the expression 'final order' did not fall to be considered in -- '5 Cal 595 (E)'.

6. Decisions bearing on the meaning of the word 'appeal' occurring in Clause (2) of Column 3 of Article 182 of Lim. Act cannot be of help in understanding the meaning of the words 'final order' in clause (5) of column 3 of Article 182 and therefore the recent Full Bench decision in --'Sivaramachari v. Anjaneya Chetty,' : AIR1951Mad962 where it was held that the appeal referred to in clause (2) of column 3 of Article 182 of the Limitation Act must be confined to an appeal against the decree in the suit and not extended to an appeal from any interlocutory order in the suit or an appeal in any collateral proceeding, cannot be of any assistance. There is no question here with regard to the applicability of Clause (2) at all. It is conceded on all hands that Clause (5) is the proper provision to be invoked in this case. That being the case the Privy Council decision in -- 'Rameshwar Singh v. Homswar Singh', AIR 1921 PC 31 (G) can have no application.

Venkatasubba Rao J.'s observations, in --'Kesavuloo v. Official Receiver, West Tanjore', AIR 1936 Mad 613 (H), that when an execution petition is returned for amendment there is no judicial dealing with the matter of the petition and therefore the order returning cannot be regarded as a final order within the meaning of Clause (5) of Article 182, can also be referred to in this connection, to show that a decision or a judgment is final when it ends the action or proceeding in the court that makes it leaving nothing further to be determined or to be done by the court except the administrative execution of the decision or the judgment as the case may be. Though the learned Judge did not have to deal with the decision of an appellate court, still in our opinion the finality which was attached to a decision of the trial court had there not been any appeal has been set at large by the appeal in the present case. It seems to us therefore that E. P. No. 8 of 1947 which was filed within three years of E. P. No. 120 of 1946 which itself was within three years of the final order in C. M. A. No. 329 of 1942 viz., 13-7-1943 is in time.

7. We confirm the order of the learned Judge that the release deed that was put into court with E. P. No. 318 of 1941 was a registeredrelease deed in accordance with the agreement Ex. A and therefore the decree-holders have fulfilled the conditions set forth in the decree.

8. The appeal is therefore allowed and the decision of the lower court is set aside and E. P. No. 8 of 1947 is remanded to the lower court for disposal according to law. The appellants will be entitled to their costs in this court.


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