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K. Subramania Iyer and anr. Vs. Olaganathan Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.A.O. No. 85 of 1968
Judge
Reported inAIR1972Mad250; (1971)IIMLJ233
ActsCode of Civil Procedure (CPC), 1908 - Sections 48, 64 and 230; Limitation Act, 1963 - Sections 4 and 5; General Clauses Act, 1897 - Sections 10; Madras General Clauses Act, 1891 - Sections 11; Rent Recovery Act (Madras), 1865 - Sections 15; Bengal Tenancy Act; Code of Civil Procedure (CPC), 1882 - Sections 320
AppellantK. Subramania Iyer and anr.
RespondentOlaganathan Pillai and anr.
Cases ReferredVellaya Nadar v. Errachi Reddiar). But
Excerpt:
.....has been adopted as a rule of law in cases to which the limitation act and general clauses act..........they did not refer back to acts of the year 1865. the bench however observed.'but there is a general principle of law which has been recognised in two recent cases by the high court of calcutta shooshee bhusan rudro v. gobind chunder roy, ilr (1891) cal 231 and peary mohun aich v. anunda charan biswas, ilr (1891) cal 631 that 'where parties are prevented from doing a thing in court on a particular day not be any act of their own, but by the act of the court itself they are entitled to do it, at the first subsequent opportunity.' peary mohun aich v. anunda charan biswas, (1891) ilr 18 cal 631. we see no reason why this principle should not be followed in cases like the present when it has been adopted as a rule of law in cases to which the limitation act and general clauses act.....
Judgment:

1. This second appeal arises out of proceedings in execution of a decree in O. S. No. 12 of 1959 on the file of the Subordinate Judge's Court, Thanjavur, in so far as it related to costs of Rs. 5,080.50. E.P. No. 42 of 1965 was filed by the two decree-holders, namely, K. Subramania Iyer and K. Gopalswamy Iyer. But K. Gopalswamy Iyer died, leaving as his legal representative G. Krishnamani. Because the legal representative had to be impleaded and the encumbrance certificates were not yet ready, on behalf of K. Subramania Iyer, the other decree-holder it was represented that the execution petition might be closed. order was accordingly passed by the executing court on 9-3-1965:

'E.P. dismissed. Attachment to continue for three months.'

2. E.P. No. 480 of 1965 was filed on 14-6-1965 on the date of the reopening of the Court after the summer recess, but without any prayer for fresh attachment. It was filed by K. Subramania Iyer and G. Krishnamani, the legal representative of the other decree-holder. In the meantime, on 30-5-1965 under Exhibit A-1, the property which had been attached in E.P. No. 42 of 1965, was purchased by one Olaganatha Pillai from the judgment-debtor, Mariappa Maniagar; that is to say, by a private sale. The private purchaser, Olaganatha Pillai, filed E. A. No. 686 of 1966 for a declaration that the property which he had purchased was not liable for attachment and sale in execution of the decree. The contention was that the attachment ordered in E.P. No. 42 of 1965 had come to an end on 9-6-1965, that the next execution petition (E.P. No. 480 of 1965) was filed on 14-6-1965 without a prayer for fresh attachment, that consequently it was not maintainable, that there was no earlier attachment which could be availed of and that the sale on 30-5-1965 would therefore be valid against the decree-holder.

3. This application was resisted on the ground that by virtue of Section 64 of the Civil Procedure Code, the purchase made on 30-5-1965 was void against the decree-holder because the order of attachment made in E.P. No. 42 of 1965 was subsisting on 30-5-1965. It was further urged that because the court was closed on 9-6-1965 (the date of the expiry of the period of three months form 9-3-1965) the earliest date on which the decree-holders could have filed the execution petition was 14-6-1965 and that, therefore, the execution petition was maintainable.

4. The learned District Munsif rejected the above defence observing thus:

'The attachment was ordered to continue only for a period of three months and the attachment ceased on the expiry of the said period of three months. The decree-holders ought to have taken steps sufficiently in advance to continue the attachment. The attachment would have been in force only for a period of three months after 9-3-1965 and it is not possible to hold, that the attachment would have continued until the re-opening day. Since the attachment had ceased, the decree-holders had nothing to enforce under the said attachment. The petitioner has therefore acquired a valid title even though his purchase was during the substance of the attachment. The property was not subsequently attached.'

The learned Subordinate Judge agreed with the learned District Munsif and dismissed the appeal of the decree-holder. Hence this further appeal.

4A. Section 64 of the Civil Procedure Code states:

'Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.'

It seems to me that the orders of the Court below Cannot be upheld. Under the order dated 9-3-1965 made in E.P. No. 42 of 1965 the attachment was in force from 9-3-1965 till 9-6-1965. The alienation under Exhibit A-1 was during that period and hence Section 64, C.P.C. would clearly come into play, and the alienation is void against the claim enforceable under the attachment effected in E.P. No. 452 of 1965. No doubt that attachment was ordered to be in force only for three months and the period of three months would have expired on 8-6-1965, but the Court was closed for summer vacation on that day and it reopened only on 14-6-1965, and the decree-holder filed E.P. No. 480 of 1965 on 14-6-1965.

5. It is a recognised principle of law that when an act has to be done on or before a certain date and the Court is closed on that date, the party could do the act or take a step or file an application on the next working day. I shall presently refer to the decisions in which this principle has been laid down. This principle is apart from Section 4 of the Limitation Act (Act 36 of 1963), Section 10 of the General Clauses Act X of 1897 or Section 11 of Madras General Clauses Act 1 of 1891. On this principle it follows that E.P. No. 480 of 1965 was filed during the continuance of the attachment made by the order dated 9-3-1965 in E.P. No. 42 of 1965 and the decree-holders could therefore avail themselves of the earlier attachment effected in E.P. No. 42 of 1965.

6. In Sambasivachari v. Ramasami Reddi, ILR (1898) Mad 179, some suits were filed by ryots (tenants) to set aside a distraint under Section 15 of the Rent Recovery Act (Madras), 1865 on the ground that no proper patta had been tendered by the defendant (landlord). The suits had to be filed within thirty days but they were in fact filed on the thirty-first day after the distraint, the reason being that the thirtieth day was a Sunday, when the Court was closed. The objection as to limitation was overruled by the trial Court but was upheld by the District Judge on appeal. In the further appeal the decree of the District Judge was reversed. The learned Judges recognised that the provisions of the then Limitation Act did not apply to extend the time of thirty days and that Section 10 of the General Clauses Act (Act 10 of 1897) of Section 11 of the Madras General Clauses Act (Act 1 of 1891) were also not applicable because they did not refer back to acts of the year 1865. The Bench however observed.

'But there is a general principle of law which has been recognised in two recent cases by the High court of Calcutta Shooshee Bhusan Rudro v. Gobind Chunder Roy, ILR (1891) Cal 231 and Peary Mohun Aich v. Anunda Charan Biswas, ILR (1891) Cal 631 that 'where parties are prevented from doing a thing in Court on a particular day not be any act of their own, but by the act of the Court itself they are entitled to do it, at the first subsequent opportunity.' Peary Mohun Aich v. Anunda Charan Biswas, (1891) ILR 18 Cal 631. We see no reason why this principle should not be followed in cases like the present when it has been adopted as a rule of law in cases to which the Limitation Act and General Clauses Act apply.'

In ILR (1891) Cal 231 a sale took place under the Bengal Tenancy Act and the judgment-debtor applied to the Munsiff to have the sale set aside by depositing the prescribed amount. The application had to be filed within thirty days, but the thirtieth day fell on a Sunday when the Court was closed. The application was filed the next day. The learned Judges observed:

'The question, therefore that arises for decision is, whether, when a fixed period is given to do a certain act, and the person bound to perform it is, form no act of his own, but from some act or order of the Court, prevented from carrying it out, he gets the advantage of the next open day.'

After referring to some decisions, the learned Judges finally held that the parties were entitled to do the act on the first opening day. The learned Judges observed:

'That principle has not been expressly incorporated in the new Act and one of the questions we have to decide is, where there is an express mention of such a right in Section 66, and no express mention n Section 174, there was any intention of the Legislature to change the law as it was understood at the passing of the Act. We think not. Section 66 made no change. The law is the same now as it was before.'

Peary Mohun Aich v. Anunda Charan Biswas, ILR (1891) Cal 631 was a similar case where under Section 320 of the then Code of Civil Procedure (Act 14 of 1882) corresponding to Section 48 of the Code of 1908, an execution petition could not be filed after more than 12 years. The last date of limitation fell during the vacation and the execution petition was filed on the opening date. It was held by the Courts below that Section 5 of the Limitation Act of 1877 prevented the application from being barred. It was urged in the High Court that Section 5 of the Limitation Act was not applicable so as to modify the strict provisions of Section 230 of the Code of Civil Procedure. The learned Judges however held:

'Whether that be so or not, it seems to us that the decree-holder is entitled to the benefit of the rule laid down in that section upon the broad principle referred to in the case of ILR (1891) Cal 231, that where the parties are prevented from doing a thing in Court on a particular day, not by any act of their own, but by the act of the Court itself, they are entitled to do it at the first subsequent opportunity.'

They then referred to other cases in which the principle had been applied.

7. In Sankaran Unni v. Raman : AIR1925Mad743 a compromise decree provided that the defendants were to pay the plaintiff a certain amount on or before a fixed day and on default that whole amount claimed by the plaintiff with costs. The date fixed fell within the mid-summer recess of the Court, and the plaintiff deposited the money in Court on the reopening date. It was held that under Order 21, Rule 1 the plaintiff had the option either to pay the money to the party in person or to deposit it into Court and the deposit made on the reopening day was sufficient compliance with the terms of the decree. The court observed:

'It is quite true that the General Clauses Act deals with the general rules of construction of statutes and the words of Section 10 can hardly be applied to a case, where a certain thing is directed to be done by a decree of Court. But as pointed out in ILR (1898) Mad 179 : 8 MLJ 265 there is a generally recognised principle of law, under which parties, who are prevented from doing a thing, not by any default of their own, but by the Court itself, are entitled to do it, at the first subsequent opportunity. That is the general principle of equity, quite apart from the terms of Section 10 of the General Clauses Act. In fact Section 10 is based upon the principle. In this case, the defendant had the option to pay either the plaintiff directly, or into Court. He was entitled to choose between the two. He was prevented from paying into Court, because the Court was closed on the due date. His payment therefore on the reopening day must, I think, be held to be sufficient compliance with the terms of the decree. In this view, the order of the lower Court must be set aside and the revision petition should be allowed.'

8. The principles laid down in these decisions will apply in this case and accordingly the attachment in E.P. NO. 42 of 1965 could be availed of by the decree-holders. The purchase by Olaganatha Pillai was during the subsistence of the attachment and is not valid against the decree-holders.

9. Mr. K. Raman, learned counsel for the respondent cited the decision in Kuppuswami v. Rangai Goundan, : AIR1962Mad383 and the unreported decision of Natesan, J. in Errachi Reddiar v. Vellaya Nadar, S.A. NO. 698 of 1963, D/- 25-1-1968 (Mad) (Pending in L.P.A. No. 39 of 1968 (Mad), Vellaya Nadar v. Errachi Reddiar). But those cases are distinguishable because there was a break after the period of attachment in the prior execution petition ceased and the next E.P. was filed only after an interval. There was no question in those cases of the Court being closed and the decree-holder filing the next execution petition on the next working day. In : AIR1962Mad383 , E.P. NO. 201 of 1953 was closed on 9-1-1954 because of the Moratorium Act and the Court made a specific order directing the attachment to subsist for the year, the upto 9th January, 1955. The next execution petition was filed long after 9 the January, 1955, and that was why it was held that the attachment was not subsisting. The position was similar is S.A. No. 698 of 1963.

10. The appeal is accordingly allowed with costs in all the Courts. E.A. No. 686 of 1966 will stand dismissed and the decree-holder will be entitled to proceed in execution.

11. No leave.


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