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K.S. Ramaswami Iyer Vs. S.V. Krishna Iyer and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberLetters Patent Appeal No. 17 of 1954
Judge
Reported inAIR1957Mad431
ActsLimitation Act, 1908 - Sections 14(2) and 29 - Schedule - Article 182; Debt Law; Madras Debt Conciliation Act, 1936 - Sections 14, 14(1) and 14(2)
AppellantK.S. Ramaswami Iyer
RespondentS.V. Krishna Iyer and ors.
Appellant AdvocateS. Ramachandra Iyer, Adv.
Respondent AdvocateG.R. Jagadisa Iyer, Adv.
Excerpt:
.....is made under sub-section 1 of section 14 is registered under the indian registration act; such an agreement after registration takes effect as if it were a decree of a civil court and is executable as such. but even after registration it remains an agreement. it is only notionally that it is made executable as if it were a decree of a civil court and to that extent the provisions of the limitation act applicable to execution of decrees would apply to the case. but it cannot be said that there is a decree of civil court which has been registered and that the fact of registration of the agreement has the effect of extending the normal period of limitation from three years to six years. the provisions of the limitation act have to be strictly construed and they cannot be extended by..........to this court, c. m. a. no. 415 of 1951. it came on for disposal before made j. and before the learned judge' the point of limitation was again pressed on behalf of the appellant. the learned judge held against the appellant on two grounds, viz,, (1) that the provision in the second column of article 182 of the limitation act for a period of six years for the execution of a registered decree would apply to this case; and (2) that the respondent-decree-holder would be entitled to the benefit of section14. sub-section (2) of the limitation act. he therefore dismissed the appeal.4. mr. s. ramachandra aiyar, learned, counsel for the appellant-13th respondent in the e. p.,, canvassed the correctness of both these findings of the learned judge. as regards the first point, via., the.....
Judgment:
1. This is an appeal against the Judgment of Mack J. in C. M. A. No. 415 of 1951. It arises out of certain proceedings before the Debt Conciliation Board. Kumbakonam. On 12th April, 1942, an agreement was reached between a creditor of the 13th respondent in E. P. No. 354 of 1949 on the file of the Subordinate Judge of Madurai and the 13th respondent, in and by which it was provided that a sum of Rs. 1140 should be paid to the creditor and the said amount was charged on property belonging to the debtor. Under Section 14(2) Of the Debt Conciliation Act, the said agreement was directed to be registered and it was accordingly registered on 18-1-1942. Under Section 14(2), on such registration, the agreement takes effect as if it were a decree of a civil Court and executable as such.

2. The creditor, in whose favour, the agreement was made, assigned her rights to one Krishna Iyer, the contesting respondent in the appeal. The assignment in his favour was recognised In the Kumakonam Sub Court on 3-3-1944. It is common ground that the said Krishna Aiyar filed several petitions in the Kumbakonam Sub-Court for transmission of this decree to the Sub-Court, Madurai, within whose jurisdiction the property charged was situate. Unfortunately though transmission was ordered by the Kumbakonam Sub-Court, no steps were apparently taken for proceeding with the further execution till eventually the contesting respondent filed E. p. No. 238 of 1948 in the Sub-Court, Madurai, after the decree had been transmitted to that Court by the Bub-Court. Kumbakonam.

Then the appellant took the objection that the execution petition was not maintainable be cause the Sub-Court, Kumbakonam, had no jurisdiction even to transmit the decree to the Sub-Court. Madurai, for execution. This objection was upheld and the E. P. was dismissed. Thereupon the respondent filed E. p. No. 354 of 1949 in the Sub-Court. Madurai, on 17th January 1949. He also filed an appeal against the order dismissing E. P. No. 238 of 1948. In that appeal, the learned District Judge of Madurai held that though the. Sub-Court, Kumbakonam, had no jurisdiction to entertain the application for transmission of the decree, the E. P. No. 238 of 1948 might itself be treated as an independent execution petition. The substantial objection to E. P. No. 354 of 1949 was that it was barred by limitation.

3. The agreement had been registered on 18th April 1942 and it provided for a period for nine, months for the payment of the debt. E. P. No. 238 of 1949 was filed on 8th March 1948, that is beyond three years but within six years of the date of the agreement. The application out of which this appeal arises was filed within six years of the period fixed for payment under the agreement. On behalf of the

assignee-decree-holder it was contended before the learned Subordinate Judge of Madurai that he was entitled to the benefit-of the provision in the second column of Article 182 of the limitation Act which provides for a period of six years when a certified copy of a decree is registered.

The learned Subordinate Judge agreed with the contention of the decree-holder and allowed the execution to proceed. The 13th respondent in the E. p. filed an appeal to this Court, C. M. A. No. 415 of 1951. It came on for disposal before Made J. and before the learned Judge' the point of limitation was again pressed on behalf of the appellant. The learned Judge held against the appellant on two grounds, viz,, (1) that the provision in the second column of Article 182 of the Limitation Act for a period of six years for the execution of a registered decree would apply to this case; and (2) that the respondent-decree-holder would be entitled to the benefit of Section

14. Sub-section (2) of the Limitation Act. He therefore dismissed the appeal.

4. Mr. S. Ramachandra Aiyar, learned, counsel for the appellant-13th respondent in the E. P.,, canvassed the correctness of both these findings of the learned Judge. As regards the first point, via., the applicability of the provision which provides for a six years period for the execution of a registered decree, we agree with the learned counsel for the appellant that it will not apply to this case. It is clear that under Section 14(2) of the Debt Conciliation Act, what happens is that an agreement which is made under Sub-section (1) of Section 14 is registered under the Indian Registration Act.

After such registration, the agreement takes effect as if it were a decree of a civil Court and is executable as such. It is obvious that even, after registration it remains an agreement. It Is only notionally that it is made executable as if it were a decree of a civil Court and to that extent the provisions of the Limitation Act applicable to the execution of decrees would equally apply to the case. But it cannot be said that there is a decree of a civil Court which has been registered. Mr. Jagadisa Aiyar learned counsel for the respondent, contended that substantially it would not make any difference if a decree is passed and subsequently that decree is registered, or if, before the particular agreement takes effect as a decree, the agreement has to be registered.

In any event, by the time execution proceedings are taken, there is, for all practical purposes, a registered decree. At first sight, the contention appears plausible. But the fallacy consists in overlooking the fact that at no time does this agreement, even after registration, cease to be an agreement. It is only executable as if it were a decree of a civil Court. Anything which happened before it attains that status cannot, by a fiction, be transposed to a period subsequent to the attainment of that status.

No authority was cited to us in support of the respondent's contention, Mack J. was inclined to think that the distinction was very technical and that the fact of registration of an agreement has the effect of extending the normal period of limitation from three-years to six years. With respect we do not agree with him. The provisions of the Limitation Act have to be strictly construed and they cannot be extended by analogy or on principle. The second column of Article 182 clearly speaks of registration of a certified copy of the decree and not registration of any other document. There is no such registered decree in this case.

5. We however think that the respondent would be entitled to invoke the assistance of Section 14(3) of the Limitation Act on the ground that he had been prosecuting, in good faith, in the Sub-Court of Kumbakonam, proceedings in execution which in law that Court was net competent to entertain. But Mr. S. Ramachandra Aiyar for the appellant rightly points out that this contention was not raised in the Court below and that it was only at the time of the hearing of the appeal before Mack J. that this point was put forward for the first time.

He therefore prays that, in case we are Inclined to agree that Section 14(2) of the Limitation Act would apply to this case, he should be given an opportunity to show that the respondent would not, be entitled to the benefit of that section because His prosecution of the execution proceedings in the Sub-Court, Kumbakonam was not "in good faith". Though, prima facie. We think that such proceedings should be presumed to be bona fide, we must concede that the appellant did not have an opportunity of proving to the Court that there Was no good faith on the part of the respondent.

The only course is therefore to remand the E. P. to the Court of the Subordinate Judge of Madurai to dispose of the application after deciding tills question, viz., whether the respondent is entitled to the benefit of Section 14(2) of the Limitation Act on the ground that he had been prosecuting, in good faith, in Kumbakoaam the earlier execution proceedings.

6. The appeal is allowed to this extent and the E. P. is remanded to the Subordinate Judge's Court to be disposed of in the light of this Judgment. There will be no order as to costs.


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