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Bava C. Gopalaswami Mudaliar Vs. the Abhisheka Kattalai Attached to Sri Thiagarajaswami Devastanam by Its Executive Officer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberA.A.A.O. No. 214 of 1947
Judge
Reported inAIR1950Mad504
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48 and 152; Limitation Act, 1908 - Schedule - Article 182
AppellantBava C. Gopalaswami Mudaliar
RespondentThe Abhisheka Kattalai Attached to Sri Thiagarajaswami Devastanam by Its Executive Officer
Appellant AdvocateR. Sundaralingam, Adv.
Respondent AdvocateN. Arunachalam ; and K.S. Nayudu, Advs.
DispositionAppeal allowed
Cases ReferredNagalinga Chetti v. Srinivasa Iyengar
Excerpt:
.....judge dismissing execution petition - article 182 of indian limitation act applicable to decree of presidency small cause court transferred for execution to city civil court - section 48 not applicable to decree passed by court of small causes - fact that court to which decree had been transferred was a court the decree of which would be governed by section 48 would not make any difference - order passed by subordinate court liable to be set aside - appeal allowed. - - the decree was obtained on 8th november 1932 on the foot of a promissory-note executed by respondent 1, vaidhyalinga pandarasannadhi, as trustee of the abhisheka kattalai of sri thiagaraja temple, tiruvarur, in favour of one sabapathi mudaliar and endorsed to one ratnasabapathi mudaliar. the district munsif..........in this second appeal is whether section 48, civil p. c. applies to and bars a decree of the presidency small cause court when it is transferred for execution to a mofussal civil court. the facts are briefly these :2. the appellant here is the assignee decree-holder in s. c. s. no. 10554 of 1932 on the file of the presidency court of small causes, madras. the decree was obtained on 8th november 1932 on the foot of a promissory-note executed by respondent 1, vaidhyalinga pandarasannadhi, as trustee of the abhisheka kattalai of sri thiagaraja temple, tiruvarur, in favour of one sabapathi mudaliar and endorsed to one ratnasabapathi mudaliar. the said decree was got amended on 23rd august 1933 by directing the said vaidhialinga pandarasannadhi to pay the decree amount out of the assets.....
Judgment:
ORDER

Panchapakesa Ayyar, J.

1.The main point for determination in this second appeal is whether Section 48, Civil P. C. applies to and bars a decree of the Presidency Small Cause Court when it is transferred for execution to a mofussal civil Court. The facts are briefly these :

2. The appellant here is the assignee decree-holder in S. C. S. No. 10554 of 1932 on the file of the Presidency Court of Small Causes, Madras. The decree was obtained on 8th November 1932 on the foot of a promissory-note executed by respondent 1, Vaidhyalinga Pandarasannadhi, as trustee of the Abhisheka Kattalai of Sri Thiagaraja Temple, Tiruvarur, in favour of one Sabapathi Mudaliar and endorsed to one Ratnasabapathi Mudaliar. The said decree was got amended on 23rd August 1933 by directing the said Vaidhialinga Pandarasannadhi to pay the decree amount out of the assets of the Abhisheka Kattalai and Annadhana Kattalai of Sri Thyagarajaswami temple of Tiruvarur, in his hands, instead of its being a personal decree passed against him. This appellant was brought on record in the Presidency Court of Small Causes, Madras, on 8th January 1937 as the assignee-decree-holder. The decree was transmitted to the District Munsif's Court, Tiruvarur, for execution on 13th December 1940. We are not now concerned with the various other intricacies and the course of the cross suits between the parties. Suffice it to say that this appellant filed E. P. No. 298 of 1941 in S. C. No. 10554 of 1932 On the file of the Court of Small Causes, Madras, is the District Munsif Court, Tiruvarur and sought to attach the decree in O. S. No. 136 of 1986 on, the file of the District Munsif Court, Tiruturaipundi in favour of his judgment-debtor and against him and to set off his dues under decree against what he had to pay under that decree, His execution petition was dismissed owing to alleged defects in column a of the petition (nobody could say what those defects were!) and the learned Subordinate Judge also confirmed this order of dismissal. Thereupon the appellant took the matter up to this Court, in C. M. S. A. No. 186 of 1944, Somayya J. by his judgment in Gopalaswami Mudaliar v. Executive Officer, Thiruvarur Devastanam : AIR1945Mad347 set aside the orders of the District Munsif and the Subordinate Judge dismissing the execution petition, and directed the execution petition to be taken on file and proceeded with according to law. That judgment was passed on 12th March 1945.

3. Thereafter, on 5th September 1946, the appellant prayed for the amendment of the execution petition and the attachment of some other immovable properties belonging to the judgment-debtor, by a petition, E. A. No. 416 of 1945, as the attachment of the decree in O. S. No. 136 of 1936 had turned out to be infructuous. The District Munsif ordered attachment on 5th September 1945, that is, after more than 12 years had elapsed since the passing of the decree on 8th November 1932. It is, of course, well settled law now, and this is not disputed by either side, that the amendment of 23rd August 1933 would not be relevant for the purpose and that only the date of the original decree, namely, 8th November 1982 counts for the purpose of Section 48, Civil P. C. The main question in this appeal is whether the learned District Munsif was right in allowing the attachment of the additional properties after 12 years bad elapsed, or whether the learned Subordinate Judge, who set aside the order of attachment, as the 12 years period prescribed under Section 48, Civil P. C. had elapsed and no special circumstances for exemption from Section 48 existed, was right.

4. The position in law is by no means clear. On the one hand we have got a Bench decision of this Court reported in Srikrishna Doss v. Alembu Ammal, 36 Mad. 108: 11 I. C. 635, wherein Sundara Aiyar and Ayling JJ. held that, Section 48, Civil P. C. being not applicable to the Presidency Small Cause Court, only Article 182, Limitation Act would be applicable to the execution of a decree of the Presidency Small Cause Court even though the decree may be transferred by the Court which passed it to another Court which is subject to Section 48, Civil P. C. regarding its own decrees for execution, as the law of limitation applicable for its execution is that of the Court which passed the decree and not the Court which merely executes it as its agent. This ruling has been followed by a Bench of the Patna High Court in Ranganadham v. Ponnacharama, : AIR1942Pat128 . The rationale of the above two decisions is that Section 48, Civil P. C. had not been extended to decrees of the Presidency Small Cause Courts under Section 8, Civil P. C. by the High Court, and so only Article 182, Limitation Act would apply, and the decrees of the Presidency Small Cause Courts would be executable without any time limit subject only to Article 182, Limitation Act like the decrees of Chartered High Courts. If the position had rested there, there would have been no difficulty in law though there might have been anomaly in fact (to be remedied by the High Courts extending Section 48, Civil P. C. to the Presidency Small Cause Courts under Section 8). But a later Bench of this Court has in Nagalinga Chetti v. Srinivasa Aiyangar : AIR1941Mad477 held that Section 48, Civil P. C. would apply to such a case also. Though Burn and Mockett JJ., who decided that case, considered and rejected the contention that a decree of the Presidency Small Cause Court transferred to a Civil Court subject to Section 48, Civil P. C. for execution would not be subject to Section 48, Civil P. C. but only to Article 182, Limitation Act, they did not consider the Bench ruling of this Court in Srikishna Doss v. Alumbi Ammal, 36 Mad. 108: 11 I. C. 685 probably because it was not cited before them. The Patna Bench in the decision Ranganathan v. Ponnacharamma, : AIR1942Pat128 , did not also consider the ruling in Nagaliga Chetti v. Srinivasa Aiyangar : AIR1941Mad477 , probably because it was not cited before them, It considered only the ruling in Srikrishna Doss v. Alumbi Ammal, 36 Mad. 108 : 11 I. C. 635 and followed it.

5. So, an important point of law is covered by conflicting rulings by two Benches of this Court and has to be resolved by being referred to a Full Bench, as represented by the counsel on both sides. I need not now consider the anomaly in fact, namely, that a decree of the Presidency Small Cause Court will not be subject to Section 48, Civil P. C. while a decree of a District Court or City Civil Court will be subject to it. Nor need I consider the question of fraud or special circumstances, as they do not arise in this ease, where the whole case stands or falls according as Section 48, Civil P. C., applies or does not apply to a transferred decree. I find it, therefore, necessary to refer the question to a Full Bench. The papers will be placed before the Honourable the Chief Justice for that purpose. The question will be 'Is a decree passed by the Presidency Court of Small Causes, and transferred to a Court subject to the provisions of Section 48, Civil P. C. barred by limitation under Section 48, Civil P. C. after the lapse of 12 years, or is it not affected at all by Section 48, and only subject to Article 182, Limitation Act?'

OPINION OF THE FULL BENCH

6. Rajamannar C. J.--The question refer-red by Panchapakesa Aiyar J. for decision by a Full Bench is as follows:

'Is a decree passed by the Presidency Court of Small Causes and transferred to a Court subject to the provisions of Section 48, Civil P. C. barred by limitation under Section 48, Civil P. C. after the lapse of 12 years or is it not affected at all by Section 48 and only subject to Article 182, Limitation Act?'

7. This question was directly answered by a Division Bench in Srikrishna Doss v. Alumbi Ammal, 36 and 108: 111. C. 635. The learned Judges Sundara Aiyar and Ayling JJ., held that the Article of the Indian Limitation Act applicable to a decree of the Presidency Small Cause Court transferred for execution to the City Civil Court was Article 182, and Section 48, Civil P. C. was not applicable to a decree passed by the Court of Small Causes, and the fact that the Court to which the decree had been transferred was a Court the decrees of which would be governed by Section 48, Civil P. C., would not make any difference. So far as we are aware no subsequent decision has differed from the view taken in Srikrishna Doss v. Alumbi Ammal 36 Mad. 108; 11 I. C. 635. In Nagalinga Chetti v. Srinivasa Iyengar : AIR1941Mad477 a Division Bench had to deal with a case in which a decree passed by the Presidency Small Cause Court was transferred to the City Civil Court for execution. Without any discussion-and it appears to us that there was no contention raised before them on the point-- the learned Judges assumed that Section 48 applied to the case and the execution petition which was filed more than 12 years after the date of the decree was held to be barred by time. Burn J. in the course of his judgment said.

'The decree in the Small Cause suit was paused on 2nd February 1926. The execution petition was filed on 27th October 1938. It was a fresh application for execution. Prima facie Section 48 prevents the Court from passing any orders for execution on such application.'

Obviously the decision in Sri Krishna Doss v. Alumbi Ammal, 36 Mad. 108: 111. C. 635 was not cited before the learned Judges conceivably because learned counsel appearing for the decree-holder did not raise the contention that Section 48 did not apply to the case.

8. We are in entire agreement with the reasoning of and the conclusion arrived at by the learned Judges in Sri Krishna Doss v. Alumbi Ammal, 36 Mad. 108: 111. C. 635. Section 8, Civil P. C., expressly excludes the application of Section 48 to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay. It follows that Section 48 does not apply to a decree passed by any of these Courts. Now, Article 182 of Schedule I, Limitation Act, col. 1 runs as follows : 'For the execution of a decree or order of any civil Court not provided for by Article 183, or by Section 48, Civil P. C. 1908.' Clearly the decree of the Presidency Small Cause Court is not provided for by Section 48, Civil P. C. Therefore it follows inevitably that the only provision which prescribes a time limit for the execution of a decree of the Presidency Small Cause Court is Article 182.

9. It was contended on behalf of the respondent judgment-debtor that Section 31, Presidency Small Cause Courts Act, was not noticed by the learned Judges who decided Sri Krishna Doss v. Alumbi Ammal, 36 Mad. 108; 11 I. C. 635, Section 31 of that Act provides for the transmission of the decree for execution to other civil Courts. It then says:

'The procedure prescribed by the Civil Procedure Code for the execution of decrees by Courts other than those which made them shall be the procedure followed in such cases.'

It is argued that this latter part of Section 31 attracts the application of Section 48, Civil P. C., as well. We do not agree. Section 48 provides for a limit of time for execution and does not deal with the procedure for execution.

10. In our opinion Sri Krishna Doss v. Alumbi Ammal, 36 Mad. 108: 11 I. C. 635 was correctly decided and the decision in Nagalinga Chetti v. Srinivasa Iyengar : AIR1941Mad477 was wrong in so far as it assumed that Section 48, would be applicable to the execution of decrees of the Presidency Small Cause Court when transferred to other Civil Courts governed by the Civil Procedure Code. (After the expression of the opinion of the Full Bench, this appeal coming on for hearing, the Court delivered the following Judgment):

11. Panchapakesa Ayyar J.--In view of the judgment of the Full Bench, it follows that the lower appellate Court's judgment and decree in A. S. No. 77 of 1946 is set aside and the trial Court's order attaching the immovable properties of the judgment-debtor and directing the execution petition to proceed is restored. The second appeal is allowed with costs throughout including the costs of reference to the Full Bench. (Leave refused.)


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