1. This civil revision petition is directed against the order passed by the Registrar of the Court of Small Causes, Madras in M. P. No. 1491 of 1981 in Distress Application No. 136 of 1980, dismissing an application filed by the petitioner under Section 61, Presidency Small Cause Courts Act, 188' (hereinafter referred to as the Act) for the release of a Godrej typewriter distrained to the petitioner, The short facts are as under the first respondent became a tenant with effect from 15-3-80 of one P. S. Jagadeesan, since deceased, whose legal representatives are respondents 2 to 6, in this civil revision petition. Since he did not pay the rent and owed nearly a sum of Rupees 11,00oltowards arrears of rent, the landlord initiated proceedings for the issue of a 'distress warrant tinder Section 53 of the Act for Rs. 4000, being the arrears of rent from 1-7-1980 to 31110/1980. Among the goods distrained on 5-11-1980 was a Godrej typewriter. On 26-2-1981 the petitioner filed M.P. No. 229 of 1981 under Section 60 of the Act praying for an order of release of the Godrej typewriter distrained to the petitioner and M.P. 300 of 1981, under Section 5 of the Limitation Act, praying for the condo nation of the delay in filing the petition for the release of the typewriter. Subsequently, the petitioner filed M.P. 409 of 1981 in M.P. 299 of -1981 on 17-3-1981, praying for an amendment of the claim petition filed by the petitioner in M.P. 299 of 1981 as one under Section 61 of the Act, instead of Section 60. These applications were strongly opposed by the legal representatives of deceased P. S. jagadeesan , under whom the first respondent became a tenant, on the ground that the application is barred and that the petitioner cannot seek the release of the distrained typewriter and cannot also seek to amend the petition as one under S. 61 of the Act. On 2-11-1981, the Registrar of the Court of Small Causes, Madras, passed a common order in M. P. 409 of 1981 and M.Ps. 299 and 300 of 1981. There under the application filed by the petitioner for the release of the typewriter distrained was held to have been filed beyond the five. days from the date of the seizure of the property and, therefore, the application was barred by time, that no relief could be given to the petitioner under Section 5, Limitation Act, and further that the petitioner was not entitled to seek an amendment for amending the petition as one laid under Section 61 of the Act. In view of these conclusions the applications filed by the petitioner were dismissed.
2. It is thereafter, on 5-11-1981, the petitioner again filed M. P 1491 of 1981 purporting to be one under Section 61 of the Act for an order of release of the Godrej Typewriter distrained. In the affidavit in support of that application, the petitioner stated that the typewriter in question was loaned by it to the first respondent for temporary use on an undertaking that it will be returned by 2-1-1981, and when asked to so return the typewriter, the first respondent informed the petitioner that the typewriter had been distrained in proceedings Initiated by the deceased landlord P. S. Jagadeesan and was lying in the custody of the Court. Claiming that the typewriter belongs to the petitioner and that the first respondent had no right, title or interest therein and Also stating that the attachment was invalid and illegal, the petitioner prayed for the release of the typewriter to the petitioner.
3. This application was opposed by the legal representatives of the deceased landlord on the ground that it is barred by res judicate and also by limitation in view of the prior proceedings and order in M. Ps. No. 299 and 300 of 1981. The loan of the typewriter stated to have been made by the petitioner to the first respondent for temporary use and return was disputed. The proceedings were also characterised to be the outcome of collusion between the petitioner and tip first respondent with a view to cause wrongful loss and damage to others. the application was also characterised to be belated and, therefore unsustainable.
4. The Registrar of the Court of Small Causes, Madras, who enquired into this application found on a consideration of the oral as well as the documentary evidence that the typewriter in question and distrained under the orders of Court belonged to the petitioner However, in view of the prior proceedings culminating in the dismissal of M. Ps, 299 and 300 of 1981. The application for the return of the typewriter was held to be barred by res judicate. Dealing with the question whether application made by the petitioner was in time, it was held that such a petition not having been preferred within five days from the date of the seizure was clearly barred by limitation. On these conclusions, M. P. 1491 of 1981 was dismissed. It is the correctness of this order that is challenged in this civil revision petition.
5. Before this Court, the conclusion arrived at by the Court below that the distrained typewriter belongs to the petitioner has been accepted by both sides. However, the learned counsel for the petitioner strenuously contended that the disposal of the earlier applications in M. Ps. 299 and 300 of 1981. did not decide the question of entitlement of the petitioner to secure a release Of the typewriter distrained on the merits, but the matter had been disposed of on the ground of limitation and. therefore, cannot be stated to have been decided on the merits and as such the application filed by the petitioner for the release of the typewriter in M. P. 1491 of 1981, cannot be stated to be barred by res judicate. Reliance in this connection was placed by the learned counsel for the petitioner on the decisions in Sheodan Singh v. Daryao : 3SCR300 , Shanti Pada v. Union of India, AIR 1976 Pat 74 and Raghumal v. Banmali, : AIR1974Pat221 . It was also further pointed out by the learned counsel for the petitioner relying upon the decision in Tops v. K4rnam Industrial Bank Ltd. : AIR1932Cal441 , that the rights conferred under Sees. 60 and 61 of the Act are independent rights and, therefore, the circumstance that on an earlier occasion an application purporting to be under Section 60 of the Act had been filed and dismissed would not preclude the petitioner from maintaining ail application taking advantage of and in the exercise of the independent right under Section 61 of the Act. Disputing the correctness of the conclusion on the question of limitation, the learned counsel submitted that there is no time limit prescribed under See. 61 of the Act and, therefore, it is open to the Court to entertain such a claim at any time irrespective of the period of limitation. within which such an application is made. It was also further submitted by the learned counsel for the petitioner that the point as to limitation was not raised in that form before the Court below and, therefore, the Court below was in error in having held against the petitioner on, the question of limitation.
6. On the other hand, the learned counsel for the respondents submitted that in substance in the earlier application in M P 299 and 30o of 1981, the relief prayed for by the petitioner was for the release of the typewriter distrained and that having been negatived, though in the ground of limitation, it would nevertheless amount to an adjudication to the effect that the petitioner is not entitled to the relief of the release of the typewriter and hence, that question cannot be registered as it would be barred under Section 11, Civil P. C. Further, the learned counsel also contended that even assuming that the present application under Section 61 of the Act could be entertained, as an independent application such an application was nevertheless barred under Section 61 of the Act, read with Order 21 Rule 47 of the Madras Rules and, therefore, the dismissal of the application by the Court below on the ground that it was barred by limitation was quite correct. The learned counsel laid stress on Section 3 of the Limitation Act to contend that even though limitation has not been set up as a defence, it was the duty of the Court to dismiss every application made after the prescribed period.
7. In the circumstances of the instant case, it is really unnecessary to go into the question whether the application filed by the petitioner under Section 61 of the Act would be barred by res judicate on account of the dismissal of the earlier applications filed by the petitioner in M. Ps. 299 and 300 of 1981. Section 60 of the Act enables the debtor. or any other person claiming to be the owner of the property seized, within five, days from such seizure, to apply to the Court to discharge or suspend the warrant or to release the distrained article and upon such terms as the Court thinks just. the warrant may be suspended or discharged or the article may also be released. Section 61 of the Act on the other hand, is restricted in its application to persons who are not debtors and provides for adjudication of the claims, right and title to the property. Section 60 of the Act prescribes five days as the time limit from the date of the seizure, within 'which such an application should be made for the discharge or suspension of the warrant or for the release of the distrained article at the instance of the debtor or any other person, who claims himself to be the owner of the property. Though under Section 61 of the Act, there is no . such time limit, yet, the, right conferred ,therein has to be exercised and a claim or objection should he made within the, time Prescribed under Order 21, R. 47, of the Madras Rules, which applies to such proceedings. Order 21 Rule 47 the Madras Rules runs as under-
'A claim or objection Section 61 of the Principal Act in respect of the property attached or seized or in respect of the proceeds or Value thereof must be preferred with in five days from the, date of the attachment or seizure. No claim or-objection preferred after five days will be- admitted- unless by order of the Court.'
In, this, case, - as seen earlier, the goods were seized on 5-11-1980 . The application by the petitioner was, filed one year hence, on .5-11-198,1. Therefore, under the first part, of- the Rule, the application filed by the. petitioner had not been preferred within. five days from the date of the seizure. Undoubtedly, therefore, the application of the. Petitioner was barred by time as the claim therein had not been preferred with five days from the date of the seizure The latter portion of the Rule referred to above contemplates the admission of a claim or objection preferred after five days by an order of court. A perusal of the records in this case establishes that there is no such order passed by the court to the effect that though the petition had been beyond five days yet, it should be entertained or admitted, Thus, the application filed by the petitioner, though purporting to, be under Section 61 of the Act has not been, preferred within the piescribed time limit, under order 21, Rule 47 of the Madras Rules. There is also no order by the court admitting the claim made by the petitioner, though such a claim had been, made After five days from the date of seizure. Looked at from the point Of view of the requirements of Section: 61 of the Act read with Order-21, Rule 47 of the Madras 'Rules, the application filed by the petitioner has to be dismissed as, barred by limitation Section 3, Limitation Act, casts a duty on the court to give effect to the law of limitation irrespective of whether limitation has been pleaded as a defence or not. It is, therefore the duty of this court to ascertain first whether- the application field by the petitioner is in time, and only after being satisfied that it is laid in time, the court has to proceed to further consider whether the petitioner is entitled to the, relief prayed for. Since, it has earlier been held that the application filed by the petitioner is barred, by limitation there is no question of' granting any relief to the petitioner on the application filed by it. On this short ground alone the order of the court below declining to grant the relief to the petitioner has to be upheld. Consequently the civil revision petition fails and is dismissed but there will be no order as to costs.
8. Petition dismissed