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Ammathayi Ammal Vs. Sivarama Pillai - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtChennai
Decided On
Reported inAIR1925Mad334; 85Ind.Cas.272; (1925)48MLJ74
AppellantAmmathayi Ammal
RespondentSivarama Pillai
Cases ReferredIn Huro Pershad Roy v. Gopal Das Dutt
Excerpt:
- - it is well settled that article 181 applies to an application by the plaintiff for the passing of a final decree--vide pattabirama naidu v. ' 4. his argument is that the executing court could not convey a good title to the purchaser and therefore the court could not sell the hypotheca, as the property of the mortgagor, when there was the decision of a competent court that the hypotheca did not belong to the mortgagor. it does not guarantee that the judgment-debtor has a good saleable title. it is only after the passing of the final decree and after having brought the mortgaged property to sale, that he could proceed against the person of the mortgagor, if any portion of the decree remains unsatisfied......on 6th november, 1916. four months' time was allowed for payment. the plaintiff applied for a final decree on 5th november, 1919. his application was dismissed, for non-payment of batta, on 10th january, 1920. he applied again for the passing of a final decree on 10th september, 1920. the defendant contended that the application for the final decree was barred by limitation under article 181. the district munsif disallowed the objection of the defendant and passed a final decree. the defendant appealed and the subordinate judge dismissed the appeal. he now prefers this second appeal.2. it is contended by mr. t. s. ramaswami aiyar, who appears for the appellant, that article 181 of the limitation act applies to applications for the passing of a final decree. it is well settled that.....
Judgment:

1. The plaintiff brought the suit on a hypothecation bond executed in his favour by the defendant. A preliminary decree was passed on 6th November, 1916. Four months' time was allowed for payment. The plaintiff applied for a final decree on 5th November, 1919. His application was dismissed, for non-payment of batta, on 10th January, 1920. He applied again for the passing of a final decree on 10th September, 1920. The defendant contended that the application for the final decree was barred by limitation under Article 181. The District Munsif disallowed the objection of the defendant and passed a final decree. The defendant appealed and the Subordinate Judge dismissed the appeal. He now prefers this Second Appeal.

2. It is contended by Mr. T. S. Ramaswami Aiyar, who appears for the appellant, that Article 181 of the Limitation Act applies to applications for the passing of a final decree. It is well settled that Article 181 applies to an application by the plaintiff for the passing of a final decree--vide Pattabirama Naidu v. Subramania Chettti (1917) 7 L W 438, Mummadi Venkatiah v. Boganatham Venkatasubbiah (1921) 42 M L J 51 and Ahmad Khan v. Mussammat Gaura ILR (1917) All 235. The time for applying, for the passing of a final decree, began to run from 6th March, 1917, and it is urged by the appellant that the application having been made, on 10th September, 1920, more than three years after the time began to run, the application is barred.

3. Mr. T. M. Krishnaswami Aiyar, who appears for the respondent, urges that his client could not have applied to the District Munsif for the passing of a final decree, as there was an adjudication by a Court that the hypotheca did not belong to the defendant, mortgagor. The defendant's husband brought a suit O.S. No. 674 of 1916, on 13th June, 1916, against the present plaintiff, as first defendant, and the defendant herein, as the 2nd defendant, for a declaration that the hypotheca was his. That suit was decreed in plaintiff's favour on 26th April, 1917. The first defendant, that is the plaintiff in the present suit, filed an appeal to the District Court which was dismissed. He preferred S. A. No. 979 of 1919 and the High Court held that the plaintiff in that suit had no title to the property and that it was the property of the defendant therein and dismissed the suit. The contention of Mr. Krishnaswami Aiyar is that, as there was a valid decree in favour of the plaintiff in O.S. No. 674 of 1916, that the property which was mortgaged to the plaintiff herein was his and that the mortgagor had no title, He could not have asked the District Munsif to pass a final decree in his favour and to have the property sold, and that he could only apply after the decree in that suit was set aside by the High Court. His contention is that during the pendency of Suit No. 674 of 1916, there was a suspension of his right to apply for a final decree and time did not begin to run against him. He relies upon an observation of their Lordships of the Privy Council in Kala Mea v. Harperink (1908) I L R 36 C 323 (P C) : 'It has been laid down again and again that in sales under the direction of the Court, it is incumbent on the Court to be scrupulous in the extreme and very careful to see that no taint or touch of fraud or deceit or misrepresentation is found in the conduct of its ministers. The Court, it is said, must at any rate not fall below the standard of honesty, which it exacts from those on whom it has to pass judgment.'

4. His argument is that the executing Court could not convey a good title to the purchaser and therefore the Court could not sell the hypotheca, as the property of the mortgagor, when there was the decision of a competent Court that the hypotheca did not belong to the mortgagor. This argument assumes that the Court when it sells property guarantees the title of the judgment-debtor. All that the Court does is to sell the right, title and interest of the judgment-debtor. It does not guarantee that the judgment-debtor has a good saleable title.

5. In mortgage, suits, a preliminary decree is passed and time is fixed for payment of the decree amount. The plaintiff has to apply for the passing of a final decree, within the time allowed by law, that is, three years from the date of the time fixed for payment. The question is whether the period given in Article 181 can be extended in favour of the plaintiff by reason of the pendency of proceedings in Courts, with regard to the title of the mortgagor. Whether the mortgagor has title to the mortgaged properties or not the plaintiff has to apply for the passing of a final decree- within the time fixed. If a personal remedy is outstanding, he can pursue the personal remedy, only after getting the mortgaged property sold by the Court. In order to enable him to do that he must apply for a final decree. It is only after the passing of the final decree and after having brought the mortgaged property to sale, that he could proceed against the person of the mortgagor, if any portion of the decree remains unsatisfied. In this case, the personal remedy was outstanding, as is clear from the decree. The plaintiff, therefore, even if he got nothing by the sale of the hypotheca, could have proceeded against the other properties of the mortgagor for the amount of his decree. But even if the personal remedy was not outstanding, it is the duty of the plaintiff to apply for a final decree, within the time allowed by law.

6. Mr. Krishnaswami Aiyar's contention is that his client had lost the right to apply, by reason of the decision in O.S. No. 674 of 1916, and it was only after that decision was upset in second appeal, that his right to apply for a final decree was revived. It is difficult to accept this contention. When time has once begun to run, it cannot be suspended, by reason of the proceedings in Courts, unless an injunction was obtained against proceeding with his application, or a stay order had been obtained staying the proceedings. In this case, no injunction was obtained against the plaintiff and no stay was ordered of the proceedings in the suit, out of which this second appeal arises. Mr. Krishnaswami Aiyar relies upon Hemendra Mohan Khasnobis v. Dharaninath Chanda Roy (1920) 25 C W N 376 for the position that his right to apply was lost on the passing of the decree in O.S. No. 674 of 1916 during the time in which that judgment was in force.

7. In that case, the facts were these : A third mortgagee obtained a preliminary decree and the last day for payment was 31st July, 1911. Payment not having been made, he made an application for a final decree, on and October, 1915. Prior to that date, the second mortgagee instituted a suit to enforce his security, in which the High Court expressed the opinion, on 10th March, 1914, that the third mortgagee could not sell the property before he had paid up the second mortgagee. The second mortgagee was paid on 22nd May, 1915. Mookerjee, the Officiating Chief Justice, and Fletcher, J., held that assuming Article 181 of the Limitation Act was applicable to the case, the application dated 2nd October, 1915, was not barred by limitation. In that case, the High Court had expressed the opinion rightly or wrongly, on 10th March, 1914, that the third mortgagee could not sell the property before he paid up the second mortgagee. Further the sum due to the third mortgagee could not have been determined till the sum payable to the second mortgagee for redemption had been settled. The third mortgagee was therefore not in a position to apply for final decree, by reason of the decision of the High Court, in the suit brought by the second mortgagee. In the present case, the plaintiff was not asked to do anything before he could apply for a final decree. The case in Hemendra Mohan Khasnobis v. Dharaninath Chanda Roy (25 C W N 376 is therefore distinguishable on the facts from the present case. In Lakhan Chunder Sen v. Madhusudan Sen ILR (1907) 35 C 209 the facts were : A Hindu died leaving three sons. The sons of the third son instituted a suit for possession of their shares against the first son and the second son. The first and second sons died pending the decision of the suit and their sons were brought on record. Decree was passed on 20th April, 1903, in favour of the plaintiffs and it was further declared that the sons of the second defendant were entitled to the share they claimed. The sons of the first defendant appealed on 22nd February, 1904, and the Appellate Court confined the decree in favour of the plaintiffs, that is, the sons of the third son, and set aside the decree, so far as it related to the sons of the second son. The sons of the second son instituted a suit on the 14th November, 1904, against the sons of the first son and the sons of the third son for possession, partition and accounts. The High Court held that during the time the suit of the third son was pending, that is, between 20th April, 1903 and 22nd February, 1904, the right of the plaintiff to bring an action was suspended. The learned Chief Justice observes at page 217 : 'It seems to us, however, that this was a decree, which so long as it stood undischarged was susceptible of execution at the hands of the present appellants, and whilst that decree existed, it was not open to them in the circumstances to institute a fresh suit for the attainment of the very object which had been successfully attained by them in the previous suit. '

8. This judgment was affirmed on appeal by the Privy Council--vide Nrityamoni Dassi v. Lakhan Chandra, Sen ILR (1916) 43 C 660 : 1916 30 M L J 529. In that case, the right of the parties was under litigation. The sons of the second son were granted relief in the first suit and therefore they could not bring a second suit, for getting the relief, which they had already obtained. No such considerations apply to the present case.

9. Reliance is placed by the respondent upon the Full Bench ruling in Muthu Korakki Chetty v. Madar Ammal ILR (1919) M 185 : 1919 38 M L J 1. In that case, there was a Court sale, on the 26th April 1913. An application was made on the 3rd January, 1914, to set it aside on the ground of fraud and it was set aside, on the 25th June 1915, as to part of the properties sold. The auction purchaser applied for delivery on the 17th February 1917, for delivery of the remaining properties. The Full Bench held that the application was not barred by limitation. In that case, the sale itself was sought to be set aside, on the ground of fraud and, though the Court had confirmed the sale, yet when an application to set it aside was made, on the ground of fraud, it was bound to entertain the application and consider it on the merits; and as long as that application was pending it could not order delivery of property under the sale, when the sale itself was being impeached, on the ground of fraud. It was only after the dismissal of the application, for setting-aside the sale, that the Court could order delivery of the property. The facts of that case are distinguishable from the facts of this case, as here there was no obstacle in the way of the plaintiff, which could have prevented him from applying for an order for sale. Moreover the wording of Article 181 is different from that of Article 180. In the case of Article 180, the time to apply for delivery is when the sale becomes absolute. But under Article 181 the time begins to run from the date on which the right to apply accrues. The right to apply accrued on the expiry of the time fixed for payment, that is 6th March 1917. The Article does not say that the right to apply accrues only when the title becomes clear. The Full Bench decision in Muthu Korakki Chetty v. Madar Ammal ILR (1919) M 185 : 1919 38 MLJ 1 turned upon the wording of the Article 180 and upon the fact that the purchaser could not apply for the delivery of the property when the sale itself was being sought to be set aside on the ground of fraud. But the observations of the learned Officiating Chief Justice in that case are against the contention of the respondent. Referring to Lakhan Chunder Sen v. Madhusudan Sen ILR (1907) Cal 209 and Nrityamoni Dassi v. Lakhan Chandra Sen ILR (1916) Cal 660 : 30 MLJ 529. Abdur Rahim, Officiating Chief Justice, observes:

But it is hardly to be inferred from such observations that the Privy Council intended to lay down any rule or rules for exclusion of time other than those mentioned in various sections of the Limitation Act, such as 12, 14, etc., or that when time has once begun to run, it will be suspended otherwise than according to the provisions of Section 9, or any other similar provision of the Limitation Act itself.' He further observes at p. 201 : 'I must however observe that it would almost look that in my judgment in Secretary of State v. Raja Vadrevu Ranganayakamma Appeal Nos. 113 and 403 of 1917 (unreported). I tried to deduce from those cases a principle of general and unlimited application to the effect that where the rights of the parties have been subjected to determination by the Court, it is from the date of the determination of such rights that limitation should be computed. But on further consideration I am persuaded that any such deduction would be unjustified if it be meant thereby to introduce a rule of exclusion or suspension of time covering a larger ground than that traversed by Sections 12, 14, 15, 16, 9 and other similar provisions of the Limitation Act.

10. It is clear from that judgment that the Court cannot introduce a new period of limitation on any ground of equity. The Limitation Act is complete in itself and any ground for extension of time, or for the suspension of time, must be sought for within the four corners of the Act itself. After the case was argued, Mr. N. Rajagopalachariar, the Assistant Law Reporter, brought to my notice Mani Singh Mandata v. Nawab Bahadur of Murshidabad ILR (1918) C. 694 : 1918 36 MLJ 210. In that case, the appellant was declared to be a disqualified proprietor and her estate was taken charge of by the Court of Wards under the Bengal Act, IX of 1879. By a deed of transfer, dated 7th June, 1890, part of the estate was sold by the Collector, as manager to the father and predecessor-in-title of the respondent, and the purchaser obtained possession on 30th April, 1891. On 1st August, 1911, the Court of Wards withdrew from the management of the estate. The appellant brought a suit on 12th May, 1912, to recover possession of the portions sold. It was held that her suit was barred by limitation and that limitation did not cease to run, because she was declared to be a disqualified owner, and the estate was in charge of the Court of Wards. Their Lordships of the Privy Council observe at p. 699 : 'The Limitation Act, it is true, recognizes and enumerates certain conditions as legal disabilities, entitling the persons affected by them to an extended period of limitation. But the plaintiff's disqualification, under Section 6 (a) of the Court of Wards Act, is not one of them, nor has any case been made, which could suspend or modify the ordinary law of limitation as applicable to this case.'

11. Though the appellant, in that case, could not have brought a suit by reason of Section 6 (a) of the Court of Wards Act during the time the estate was under the Court of Wards, yet the Privy Council held that that would not extend the period of limitation in her favour.

12. If once time has begun to run, it cannot be suspended by reason of the proceedings in any Court unless the facts could be brought within one of the sections of the Limitation Act, which lay down the conditions under which the running of time is suspended. In this case, the time for applying for final decree began to run from the 6th March, 1917, and the decree in the second suit was not passed till the 26th April, 1917 Time having begun to run against the plaintiff, it could not have been suspended by reason of a subsequent decision. In Soni Ram v. Kanhaiya Lal ILR (1913) All. 227 : 1913 25 MLJ 131 it was held by the Privy Council that there was nothing in Act XV of 1877 which would justify the Board in holding that once the period of limitation had begun to run in the case it could be suspended. Section 9 of the Limitation Act of 1908 expressly enacts that where once time has begun to run, no subsequent disability or inability to sue stops it. Oldfield, J., in Muthu Korakki Chetty v. Madar Animal ILR (1919) M 185 : 1919 38 MLJ 1 expressed the same opinion that 'once a cause of action has arisen it is not suspended by later events.'

13. In Huro Pershad Roy v. Gopal Das Dutt (1882) ILR 9 C 255 (PC) the Privy Council held that a landlord who could have brought a suit for the rent for a certain fasli was not entitled to bring a suit after the expiry of one year on the ground that his suit against the tenants, in respect of the arrears of rent, for the previous year was pending. Their Lordships observe at page 259 : 'Here there was no period of time in which the rent could not have been recovered. There was no period of time in which, therefore, the statute might not have run.'

14. It is quite clear from the authorities that if time once begins to run, it cannot be stopped or suspended by reason of any disability that may have happened or occurred. Subsequently in this case, as I have already pointed out, the plaintiff was not debarred from applying for the passing of a final decree. The contention of the appellant therefore prevails.

15. In the view I have taken, it is unnecessary to decide in this case the question whether a second application, even if within three years, is barred, by reason of the dismissal of a previous application, for the passing of a final decree.

16. In the result, the appeal is allowed, and the plaintiff's application for the passing of a final decree is dismissed with costs throughout.


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