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Aiyasamier (Dead) and ors. Vs. Venkatachela Mudali and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai
Decided On
Reported in(1916)31MLJ513
AppellantAiyasamier (Dead) and ors.
RespondentVenkatachela Mudali and anr.
Cases ReferredNarhar Raghunath v. Krishnai Govind I.L.R.
Excerpt:
.....i think however the case falls under clause (a). there is no good reason for holding that the date of the decree sought to be executed must necessarily be the date put down at the time it was drawn up. 'even under the transfer of property act, the decree for the balance ought to have been passed only on ascertaining the amount remaining due after the sale of the hypothecs, none the less, the loose practice of passing a combined decree for sale as well as for the recovery of the balance in case the saleproceeds resulted in a deficit, was generally prevalent. 16, that a composite decree like the present one 'though not strictly in conformity with the provisions of the transfer of property act, is a good and valid decree as between the parties thereto. but where the party is unable to..........by reason of the fact that the amount due under that portion is left to be determined at a future time, limitation begins to run as regards execution of the whole decree only from the time of ascertainment of the amount left undetermined, even though it might have been open to the party to have executed the other portions earlier.' those two cases did not raise a question under section 48 of the code of civil procedure, but under the limitation act and they are not direct authority for the present case. in sabhanatha v. lakshmi i.l.r. (1883) m. 80, in the case of a decree for payment of a certain sum annually as maintenance, it was held that execution was barred by limitation when the application was put in more than three years from the previous application and similarly in yusuf v......
Judgment:

Abdur Rahim, Officiating C.J.

1. The answer to the question referred to the Full Bench should be that the period of limitation under Section 48 of the Code of Civil Procedure runs from the date when, after the remedy against the mortgaged property has been exhausted, it is ascertained that there is a balance due to be recovered from the defendant and his other properties. The decree in this ease was passed before the present Code of Civil Procedure came into operation and under the provisions of the Transfer of Properly Act. Properly speaking, there should have been first a decree for sale of the mortgaged properties and if the mortgaged properties were found insufficient, a separate decree or order should then have been made for realisation of the balance from the person and other properties of the judgment-debtor. But there was a very prevalent practice in the mofussil courts to draw up one decree providing for the sale of the mortgaged property and if the sale-proceeds were insufficient to satisfy the decree, for recovery of the balance from the other properties of the mortgagor. A. combined decree like this, though irregular, has been held to be within the competency of the Court and binding on the parties, see Dinabandhu v. Mashuda (1913) 26 M.L.J. 88. It has further been ruled that in such cases, it is not necessary to obtain another separate decree or order under Section 90 of the Transfer of Property Act, see Periasami Kone v. Muthia Chettiar (l914) 16 M.L.T. 899.

2. That was the state of law, when Section 48 of the Code of Civil Procedure which now provides the limit of time for execution was enacted. It is in these words:

Where an application to execute a decree not being 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 twelve years from--(a) the date of the decree sought to be executed, or (b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree. ' I am not prepared to hold that Clause (b) applies to decrees like the one under consideration, for they cannot be said to direct payment or delivery of property at a ' certain ' date. For that clause to apply, the date should be fixed in the decree or at least should be ascertainable from its terms. We have not been referred to any authority for applying the maxim ' whatever can be made certain is to be treated as certain ' to the construction of a statute of limitation and I am not aware of any.

I think however the case falls under Clause (a). There is no good reason for holding that the date of the decree sought to be executed must necessarily be the date put down at the time it was drawn up. The legislature by using the qualifying words ' sought to be executed' seem to me to have indicated that the date is to be ascertained with reference to the time when the decree becomes capable of execution. Otherwise, there are cases in which, if time were to be reckoned from the date when the judgment is pronounced, which, as provided in the Code of Civil Procedure (Order 20, Rule 7), is the date which the decree must bear, the result would be that the decreeholder would not be able to execute the decree at all; for instance, where a decree directs something to be done upon a certain contingency, such as in the case mentioned by Sadasiva Aiyar, J., where a decree for partition provides for an amount to be spent for the marriage of a girl belonging to a Hindu family in the event of and when the marriage takes place. A decree may give more than one relief, some of them may be enforceable at once and some can only be enforced at future dates either fixed in the decree or depending on the happening of a particular event. A decree is defined as ' the formal expression of an adjudicatioi 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'. When the reliefs given in respect of those rights are distinct and enforceable at different periods of time, then for purposes of execution, there are in fact more than one decree though embodied in one document. In such cases, it is only reasonable to hold that the date of the decree sought to be executed within the meaning of Section 48 Clause (a) of the Code of Civil Procedure may not be what it bears on its face. It is the date when the particular adjudication sought to be enforced becomes ripe for execution according to the terms of the decree.

3. This is the view of the law adopted in Ratnachalam Ayyar v. Venkatrama Ayyar I.L. R (1912) B. 868 and in Narhar Raghunath v. Krishnaji Govind I.L.R. (1912) B. 868. In Vydianatha Aiyar v. Subramania Patter I.L.R. (1907) M. 461, the learned Judges seem to have gone even further, holding that in cases of this class, time begins to run for the whole of the decree only from the time of the ascertainment of the amount left undetermined. But I do not wish to express any decided opinion as to whether this is correct. The opposite view was expressed in Jnanendranath Bose v. Khulna Loan Company Limited (1908) 18 M.L.J. 518 and by this Court in Venkata Perumal v. Prayag Dassji (1914) 29 I.C. 556 where it was held that time must be calculated from the date which the decree bears on the face of it and it makes no difference whether that part of the decree which is sought to be executed did not become capable of being enforced until afterwards. For the reason which I have given, I am of opinion that the ruling in Ratnachalam Ayyar v. Venkatarama Ayyar I.L.R. (1912) B. 868 and Narhar Raghunath v. Krishndji Govind (1914) 29 I.C. 556 is correct and the case reported in Venkata Perumal v. Prayag Dassji (1911) 16 M.L.T 99 so far as this point is concerned must be overruled.

4. The answer will be as proposed by Seshagiri Aiyar, J. and myself.

Seshagiri Aiyar, J.

5. I am of the same opinion. The decree m this case was passed in January 1895. Its terms are ' that the defendants do pay to the plaintiff the suit amount with costs and with interest on the suit amount at the rate of 6 per cent. per annum from the date of the plaint till the date of realization of the amount within three months from this date, that in default the mortgaged properties shall be sold by public auction and if there be balance even after that, it shall be recovered by the plaintiff from the first defendant and the common family properties of both the defendants. ' Even under the Transfer of Property Act, the decree for the balance ought to have been passed only on ascertaining the amount remaining due after the sale of the hypothecs, None the less, the loose practice of passing a combined decree for sale as well as for the recovery of the balance in case the saleproceeds resulted in a deficit, was generally prevalent. The new Code of Civil Procedure by miking Section 90 of the Transfer of Property Act part of the procedure to be followed in the framing of decrees has drawn pointed attention to what a mortgagedecree should contain at the outset and when the personal decree for the balance should be passed. It was held by Mookerji, J. in Dinabandhu v. Mashuda I.L.R. (1905) M. 16, that a composite decree like the present one 'though not strictly in conformity with the provisions of the Transfer of Property Act, is a good and valid decree as between the parties thereto.' It has also been held that in the case of such decrees it is not necessary to apply for a further order under Section 90 of the Transfer of Property Act, after exhausting the mortgaged properties ; Sadho Singh v. The Maharaja of Benares 5 and Periyasami Kone v. Muthia Chettiar I.L.R. (1911) M. 104 21 M.L.J. 516.

6. If the decree is binding on the parties and if it is executable without a further application for granting a personal decree, the next question is when does it become executable. In Kommachi Kather v. Pakker (1914) 29 I.C. 656, it was held by this Court that it is only on the ascertainment of the deficit that the decree is executable. The observations of Banerji and Richards, JJ. in Munawar Husain v. Jani Bijai Shankar 18. C.W.N. 492, show that any application to execute the personal decree before the hypotheca is sold will not be in accordance with law and will not be regarded as a step in aid of execution. Periyasami Kone v. Muthia Chettiar I.L.R. (1910) A. 264, speaks of such an application as one which the Courts should never entertain.

7. Now comes the crucial question whether under Section 48 of the Code of Civil Procedure, time begins to run against the decreeholder from the date of the composite decree or only from the date when it becomes executable against the person and the other properties of the judgmentdebtor. If the parties are bound by the terms of the decree and if it cannot be given effect to until the happening of a contemplated contingency, limitation cannot be said to run against the party seeking to enforce his rights until he is in a position to avail himself of the advantage. The essence of the law of limitation is to provide against dilatoriness and negligence in the enforcement of a man's rights. But where the party is unable to seek his remedies, it cannot be said that he has failed to avail himself of the cause of action that has accrued to him.

8. It is true that under Section 48, the twelve years' period runs from the date of the decree sought to be executed. As pointed out by Sadasiva Aiyar, J., in the order of reference, the literal construction of this section would render nugatory clauses in partition decrees directing payment of sums of money for marriages etc., on the performance of the ceremonies. Ex facie such sums would not be recoverable at once; for the contingency may never happen. Consequently, if the twelve years are to be reckoned from the date of the decree, the party in very many cases will be without a remedy.

9. It is a wellrecognised principle of jurisprudence that ' where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship, or injustice, presumably not intentded, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence.' Maxwell on the Interpretation of Statutes, page 344. It is on this principle, I take it, that the decision of the learned Judges of the Bombay High Court in Shevdas Daulatran v. Narayan (1912) 16 C.L.J. 318 proceeds. Vydianatha Aiyar v. Subramania Patter I.L.R. (1918) M. 677 and Ratnachalam Aiyar v. Venkatarama Aiyar I.L.R. (1911) Mad. 104 lay down that notwithstanding the date of the decree, it becomes executable so as to invite limitation against the party not able to seek relief at once, only when the decree is capable of execution and not before. The learned Judges who decided Venkata Perumal v. Prayag Dassji 18 C.W.N. 192 have taken a different view and they are supported by Jnanendranath Bose v. Khulna Loan Company Limited (1915) 29 Ind. Oas. 556. The course of decisions in this Presidency is the other way. I would, therefore, overrule Venkata Perumal v. Prayag Dassji I.L.R. (1911) Mad. 104 and answer the reference by saying that limitation began to run in the case of the decree under execution only when the balance was ascertained.

Phillips, J.

10. This reference has arisen from the fact that the question referred has been answered in two different ways, in one way by this Court in Venkata Perumal v. Prayag Dassji I.L.R. (1911) Mad. 104 and in another way by the Bombay High Court in Narhar Raghunath v. Krishnaji Govind I.L.R. (1913) M. 677. The Bombay High Court has held that the date from which the limitation is to run is the date when the decree became in all its parts ripe for execution, that is to say, when the personal remedy became available to the decreeholder. In Venkata Perumal v. Prayag Dassji (1912) 16 C.L.J. 818, Oldfield and Tyabji, JJ., have held that the period of limitation must run from the date of the decree. The decision of the Bombay High Court is supported by a decision in Muhammad Suleman Khan v. Muhammad Yar Khan I.L.R. (1804) A. 39, where it was held that, under Article 179 of the Limitation Act of 1877, the date of the decree from which the three years' limitation is to run must necessarily apply only where there is a decree or order which can at its date be executed. In Vydianatha Aiyar v. Subramania Patter I.L.R. (1888) M. 83, it was held 'For the purposes of limitation regarding execution of a decree the decree must be taken as a whole and ordinarily when a portion of the decree is not executable by reason of the fact that the amount due under that portion is left to be determined at a future time, limitation begins to run as regards execution of the whole decree only from the time of ascertainment of the amount left undetermined, even though it might have been open to the party to have executed the other portions earlier.' Those two cases did not raise a question under Section 48 of the Code of Civil Procedure, but under the Limitation Act and they are not direct authority for the present case. In Sabhanatha v. Lakshmi I.L.R. (1883) M. 80, in the case of a decree for payment of a certain sum annually as maintenance, it was held that execution was barred by limitation when the application was put in more than three years from the previous application and similarly in Yusuf v. Sirdar I.L.R. (1888) M. 83. In Ratnachalam Aiyar v. Venkatrama Ayyar I.L.R. (1905) M. 46 it was also held, 'A decree which leaves matters to be subsequently ascertained becomes capable of execution as to them only when they are ascertained ; and an application for execution will not be barred if presented within three years of the time when, by such matters being settled, it becomes executable.

11. The authorities are clearly conflicting and I think we must turn to the section for determining what is the correct interpretation of it.

12. Section 48 of the Code of Civil Procedure lays down:--Where an application to execute a decree not being a decree granting an injunction has been made, no order for execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from (a) the date of the decree sought to be executed, or, (6) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

13. It is suggested by Sadasiva Aiyar, J., in his order of reference, that, possibly, Clause (b) might cover the present case 'on the ground that the words 'certain date' might be made to include the future date which is rendered certain by proceedings and facts ordinarily expected to take place.' But, with all deference, it appears to me that, in the present case, there is no decree for payment at a certain date because the decree provides firstly for the sale of the mortgaged properties and it is only in the case the proceeds of the sale are insufficient to extinguish the debt that any necessity arises for payment under the personal decree and it can hardly be said, when it is not even certain that any payment will have to be made, that it orders payment at a certain date. In this view, Clause (b) is not applicable to the present case and the application would be barred unless it is in time under Clause (a). Under Clause (a), we have to compute the period from the date of the decree sought to be executed. The words, in themselves, are very clear for a decree can only bear one date, but the nutter has been somewhat complicated by the rulings to which I have referred above, that similar words in the schedule to the Limitation Act are to be modified by reading into the words 'the date of the decree ' the words ' the date when the decree becomes executable.' This addition to the words of the statute has, it appears to me, been suggested in order to avoid hardship and to give a reasonable meaning to the words contained in the statute. A similar addition may be read into Section 48(a) but this is no authority for going even further. The Legislature has laid down a period of twelve years as the maximum period within which a decree can be executed (save in the case of fraud) and presumably this period has been fixed with a view to avoid a prolonged harassing of the judgmentdebtor and consequently I think the section must be strictly construed. Assuming that ' the date of the decree ' means ' the date when the decree becomes executable,' I can see no reason for adding the words 'and any subsequent date on which a further relief is granted ' more especially when the decree is one which ought not to have been passed in its present form. The trouble in this case has arisen from the fact that the decree is erroneous. The decree for the sale of the mortgaged properties should first have been made and subsequently a personal decree given for any balance outstanding. It would have been open to the decreeholder to have the decree amended by omitting the personal decree. In that case, if a personal decree had been subsequently given, twelve years' time would have run from the date of that decree. It has been held that a decree must be treated as a whole. (Vide Vydianatha Aiyar v. Subramania Patter I.L.R. (1911) M. 104 and Viraraghava Ayyangar v. Ponnammal I.L.R. (1899) M. 60=9 M.L.J. 284. In Ashfaq Husain v. Gauri Sahai I.L.R. (1910) A. 261, it was even held by the Privy Council that, where there were two decrees, one against several defendants and a subsequent decree against another defendant who had been ex parte at the first hearing, the period of limitation did not begin to run until the date of the subsequent decree against this one defendant. These cases are authority for holding that there can be only one date from which limitation is to proceed. What is suggested should be done in the present case is, that limitation as regards one part of the decree should run from the date of the decree and as regards another part of it, from the date when that portion becomes ripe for its execution. If, however, there is only one date from which limitation begins to run, it does not appear to me possible to construe this one decree as having two separate dates for the commencement of limitation. There is nothing in the words of Section 48, Clause (a) to support this theory, unless one can read something into that section which is not there. In consequence of the law having been laid down to that effect, I would prefer to interpret the words as they stand and would hold that the date of the decree must be one date alone and from that date twelve years must be calculated. It is the view taken in Venkata Perumal v. Prayag Dassji (1911) 29 I.C. 556 by a Bench of this Court and also by the Calcutta High Court in Jnanendranath Bose v. Khulna Loan Company Limited 18 C.W.N. 492 and I would prefer to follow these decisions rather than the one in Narhar Raghunath v. Krishnai Govind I.L.R. (1912) B. 868. In this view, in answer to the question referred, I would hold that the date mentioned in Section 48 of the Code of Civil Procedure is the date of the decree and not the date when the saleproceeds of the mortgaged properties had been found to be insufficient to satisfy the decree.

14. The second appeal coming on for final hearing before the Division Bench the Court delivered the following.

15. Following the decision of the F.B. we hold that the execution Petition is not barred by limitation. We reverse the Lower Appellate Court's order and restore that of the District Munsif. The respondents will pay the Appellant's costs in this and in the Lower Appellate Court.


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