Skip to content


Akkal Naicker Vs. Kumarasami Reddiar - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1949)1MLJ432
AppellantAkkal Naicker
RespondentKumarasami Reddiar
Cases ReferredPandu v. Jamnadas
Excerpt:
- - , at pages 816-817 states that in matters like this section 14 of the limitation act is applicable......the order of the district munsiff of sattur in e.a. no. 42 of 1945 in s.c. no. 311 of 1938. the learned district munsiff dismissed the application on the ground that the petitioner is not entitled to invoke the aid of section 14 of the limitation act, and, if it is so, the petition is barred by limitation.2. shortly stated, the facts are these. the learned district munsiff, sitting as a small cause judge passed the decree against the respondent for a sum of money on 19th january, 1939, in favour of the petitioner who was decree-holder plaintiff. the petitioner filed successive execution petitions on the original side of the same court. the first of them on 1st september, 1941, being e.p. no. 341 of 1941. this was dismissed for default of prosecution on 25th september, 1941. thereupon.....
Judgment:

Govinda Menon, J.

1. This is an application to revise the order of the District Munsiff of Sattur in E.A. No. 42 of 1945 in S.C. No. 311 of 1938. The learned District Munsiff dismissed the application on the ground that the petitioner is not entitled to invoke the aid of Section 14 of the Limitation Act, and, if it is so, the petition is barred by limitation.

2. Shortly stated, the facts are these. The learned District Munsiff, sitting as a Small Cause Judge passed the decree against the respondent for a sum of money on 19th January, 1939, in favour of the petitioner who was decree-holder plaintiff. The petitioner filed successive execution petitions on the Original Side of the same Court. The first of them on 1st September, 1941, being E.P. No. 341 of 1941. This was dismissed for default of prosecution on 25th September, 1941. Thereupon another application E.P. No. 292 of 1942, was filed in the same Original Side of the District Munsiff's Court on 15th July, 1942. This application again was dismissed on 19th February, 1943. A third application, E.P. No. 230 of 1943, was then filed on 17th July, 1943, and after various interlocutory and other orders, this application was pending on 3rd September, 1945 when, the petitioner realising that he had made a mistake in invoking the aid of the Original Side of the District Munsiff's Court for executing the decree filed the present application out of which the civil revision petition has arisen.

3. According to the learned District Munsiff, the petitioner is not entitled to invoke the aid of Section 14 of the Limitation Act; and for that purpose he relied upon a decision of this Court in Satyanarayana v. Kajireddi : AIR1946Mad61 , and another of the Patna High Court reported in Bishundeo Narain Missir v. Raghunath Prasad Missir I.L.R. (1939) Pat. 354. Mr. Natesan, appearing for Mr. V. Ramaswami Aiyar for the petitioner, invites my attention to the observations contained in Rustomji's Limitation Act, Vol. I, page 254 as also to the decision of this Court in Ramier v. Muthukrishna Iyer : (1932)62MLJ687 , where Ramesam, J., at pages 816-817 states that in matters like this Section 14 of the Limitation Act is applicable. A decision of the Bombay High Court in Pandu v. Jamnadas : AIR1925Bom113 , on which the author Rustomji based his observation was also cited before me. In view of these authorities, it seems to me that the learned District Munsiff was wrong in holding that the petitioner was not entitled to invoke the aid of Section 14 of the Limitation Act and thereby deduct the period during which the three execution petitions were pending before the Original Side of the District Munsiff's Court, because he was bona fide prosecuting petitions for the same relief which the Court in which they were prosecuted could not give on account of want of jurisdiction. So on that point the learned District Munsiff who decided the case, is wrong. But there is another hurdle which the petitioner has to surmount before he is entitled to succeed, and that is, that since the decree was passed on 19th January, 1939, and the present application was filed only on 3rd September, 1945, the period that elapsed is six years, seven months and 15 days. Out of this period the pendency of the three aforesaid applications in the District Munsiff's Court which became infructuous was only two years, nine months and odd. Therefore, the petitioner has to account for a period of three years, ten month's and odd and being more than three years as provided under Article 182, Clause (5) of the First Schedule of the Limitation Act, the present application is barred by limitation.

4. Mr. Natesan contended that each of the subsequent applications should be deemed to be continuations of the earlier applications so that from the date 1st September, 1941, on which he presented the first infructuous application till 3rd September, 1945, when the proper application was filed before the learned District Munsiff as a Small Cause Court, the period that elapsed ought to be considered as the period during which he has been diligently prosecuting in a Court and praying for a relief which he could not get on account of want of jurisdiction in that Court. No authority has been brought to my notice to show that an infructuous application which was filed in a wrong Court and dismissed by that Court can be considered to be continued by another infructuous application filed in the same Court and for the same relief some time later. It is not even pretended that the second application, E.P. No. 292 of 1942, is a continuation of the earlier application because there is no mention of such an intention in the second petition and the Court is not asked to revive the moribund application and restore it to life. In these circumstances, it seems to me, that each of these three applications were distinct and separate and ought to be treated as such and the later ones cannot be treated as continuations of the earlier applications. Therefore, however regrettable it is that a judgment-debtor who is legally bound to pay his creditor escapes scot-free, the provisions of law have to be enforced and I am constrained to hold that the application is barred by limitation and that the order of the District Munsiff, for the reasons given by me, is correct on the merits. The petition is therefore dismissed.

5. I must express my thanks to Mr. V.P. Sarathy who agreed to read the papers, appear as amicus curia and argue the case before me. I am much indebted to him for that help.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //