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Mohanambal Arnmal Vs. Ramamoorthy and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 3240 of 1981
Judge
Reported inAIR1984Mad85; (1984)1MLJ360
ActsLimitation Act, 1963 - Schedule - Articles 136 and 137; Agriculturists Debt Relief Acts
AppellantMohanambal Arnmal
RespondentRamamoorthy and anr.
Appellant AdvocateJ.R.K. Rhavanatham, ;A. Hamid Sultan and ;N. Baskaran, Advs.
Respondent AdvocateT. Ramachandrau, Adv.
Cases Referred and Rameshwar Singh v. Bonieshwar Singh
Excerpt:
.....the right to execute the decree against them arose, sna therefore, the application for execution filed on 22-9-1979 was well within time. strong reliamm was placed in this connection upon the decisions in h. 136 of the limitation act, 1963 clearly show that in this case, the decree was executable on and from 21-11-1966 and not from some other or future date, when the first respondent -was' unable to realise anything from out of the decree obtained by the petitioner and the second respondent in ,~o. 136 of the limitation act 1963, with effect from 21-11-1966 with the result that the execution petition flied on 22-9-1979 would be-clearly barred, not having been filed, within 12 years from 22-11-1966. 6. even assuming that the first respondent was entitled to wait till he..........the right to execute the decree against them arose, sna therefore, the application for execution filed on 22-9-1979 was well within time. strong reliamm was placed in this connection upon the decisions in h. vydianatha aiyar v. k_ subramanian pattar, ilr. (1913) mad 104 and rameshwar singh v. bonieshwar singh, air 1921 pc 31. a faint attempt was aue made by the learned counsel for the first respondent to contend that the petitieaer and the second respondent are pemns entitled to, the benefits of the several enactments reiatine to agriculturists deist belief am tberefem, the first respondent was entitled to. take advantage of the extended period ~owing to the entbar#* laid on obtaining of decrees and execution thereof against agriculturists entitled to the benefits of the.....
Judgment:
ORDER

1. This civil revision petition at the instance of -the second defendant in 0. S. No. 211 of 1964, District Munsif s Court, Trivelre, is directed against the order passed by the court below in E. P. 399 of 1979 holding that the execution petition is not barred by limitation. 0. S. 211 of 1964 District Munsifs Court, Trivellore, was instituted by the first respondent herein against the petitioner and the second respondent herein who vere implea&d; as defendants 2 and 3 and another Bagyammal, who was impleaded as the first defendant therein, for the recovery of a sum of Rs. 3216.34, being the amount due on a promissory note dated 9-5-1951 executed by one Sanjeevi Naidu, father of the petitioner and the second respondent and the husband of Bagyammal. On 31-7-1965, the Additional Districi Munsif, Trivellore, dtsmissed that suit; but on appeal in A. S. 342 of 1965 District Court, Chingleput, the learned District Judge allowed the appeal on 5-2-1966. In the course of the judgment in A, S. 342 of 1965, the learned District Judge took note of the fact that the petitioner and the secorid resporident in their capacity as the legal representatives of Sanjeevi Naidu had obtained a decree in 0. S. 109 of 1962, Aub Court, Cbingleput, against one Rajararn Naidu and stated that the first respondent herein has, in the first instance, to proceed against the decree in 0. S~ 109 of 196Z Sub Court, Chengalpatt% and if for any reason, he is not in a position to realise it, onlV then it will be Open to the first respondent to proceed against the assets of the der-eased Sanjeevi Naidu in the bands of the petitioner and the second respondent herein. r1be decree which was granted in favour of the first responclent was in these terms:-

(1) That the respondent-defendant (Bagyammal, the petitioner and the second respondent in the civil, revision petition) do pay to the appellant-plaintiff (first respondent in the civil revision petition), Rs. 3421.34 with interest thereon at 5-1/2% per annum from this date to the date of realisation;

(2) That in execution, if any, the plaiia' (first respondent in the civil revision Petition) do in the first instance proceed against the decree in 0. S. l()q of 1962 an the file of the Sub Court, Chingleput;

(3) That if for any reason the plaintiff (first respondent in the civil revision petition) is not in a position to realige it, it will then only be open to him to proceed against the assets of the deceased in the hands of defendants 2 and 3;

(4) That the second respondent (petitioner herein) do pay to the appellant (first respondent herein) Rs. 998.09 p, (Rs. 521.09 in appeal and Rs. 477 in suit) as costs in this appeal and do bear her own costs Rs. 460.24 p. (Rs. 240.99 p. in appeal and Rs. 219.25 p. in suit).

Aggrieved by the decree and judgment in A. S. 342 of 1965, the petitioner here-. in preferred S. A. 1418 of 1966 to this court and on 21-11-1966, this court, while dismissing the second appeal even at the stage of admission, upheld the decree granted by the learned District Judge directing the plaintiff (first respondent herein) to proceed against the mortgage decree in 0. S. lG9 of 1962 in the first instance,

2. On 22-9-1979, the first respondent herein filed E. P. 399 of 1979 in 0. S. 211 of 1964, against the petitioner and the second respondent herein, praying for the attachment and sale of certain properties for the realisation of a sum of Rs. 70135.87 stated to be due under the decree in 0. S. 211 of 1964. In the counter filed by the petitioner, she raised an objection t hat the execution petition Is barred by time. The executing Court, Considering, this objection raised by the petitioner, held that since the petitioner end the serend respondent herein did not take any steps for the pmsizix of a final decree is 0. S. 1' of 1M and he allowed the rights there under to be bar red, the first respondent was not in a Position to take stem to execute the decree as per the direction in the decree of the District Court in A. S. 342 of 1965 and therefore, the contentim of the petitioner that the execution petition filed by the first respondent is barred by ftaitation is not acceptable. In this view, the objection raised by the petitioner was overruled and the properties were directed to be attached. it is the corectness of this order that is challenged in this civil revision petition.

3. The main contention urged by Mr.Bliavanantham, learned counsel for the petitioner in support of the civil revision petition is that the execution petition filed by the first respondent herein on 22-9-1979 to execute the decree in 0. S. 211 of 1%4 is barred un4er Art. 136 of the Limitation Act 1.963. According to the learned counsel, even taking into account on date of the decree for purposes of execution as 21-11-1%6, when second appeal No, 141& of 19' was dismissed by this court, the F~ P. having been filed on 22-9-1979 beAmd 12. years from 2.1-11-1966 would be barred. In addition, the learned cotu2sel for the petitioner contended that though under Cl. (2) of the decree in A. S, 342 of 1965, the first respondent was directed to proceed against the decree in 0. S. 109 of 1962, Sub Court, Chengaipatti~ ' that only thereafter it would be open to him to proceed against the assets of deceased Sanjeevi Naidu in the hands of the petitioner and the second respondent, yet,that would not make any difference in so far as the executability of the decree as aM from 21-11-1966 is concerned ' that in spite of such a direction, the time for filing an K P. would comence to run from the date of the decree, vi7-,21-11-1%6, and therefore, the application on 22-9-1979~ would be barred. In support of this contention, the learned counsel for the petitioner relied upon the decisions in Swarninatlia Odayar v.Thiagarajaswavai Odayar, : AIR1926Mad954 . Shuia-ul Mulk Bahaftr v. Umir-UT-U-mra Baha dur, (IM #9 Mad LJ 'D : AIR 4 Mad 20, Ba*h XaW* v. Meemakshi Ammal, AIR 1949 Mad 28, Ram Gobind R3i v, Shahabad District Dowd, AIR 19116 Pat 118, and Dakshinamurthy Pillai v. Vedarnurthi Mudaliar : AIR1927Mad842 . On the other hand, the learned counsel for the first respondent submitted that at the tinm when the decree was passed in A. S. 342 of 1965, the decree was not executable against the petitioner and the second respondent and only after the first respondent realised that the rights of the petitioner and the second respondent with reference to the maortgage decree in 0. S6 109 of 1962 Sub Court. CheugaLPattu, be~-came extinguished, the right to execute the decree against them arose, snA therefore, the application for execution filed On 22-9-1979 was well within time. Strong reliamm was placed in this connection upon the decisions in H. Vydianatha Aiyar v. K_ Subramanian Pattar, ILR. (1913) Mad 104 and Rameshwar Singh v. Bonieshwar Singh, AIR 1921 PC 31. A faint attempt was aUe made by the learned counsel for the first respondent to contend that the petitieaer and the second respondent are pemns entitled to, the benefits of the several enactments reiatine to Agriculturists Deist Belief aM tberefem, the first respondent was entitled to. take advantage of the extended period ~owing to the entbar#* laid on obtaining of decrees and execution thereof against agriculturists entitled to the benefits of the enactments

4. Whatever might have been the position with reference to the time limit within which applications for execution should be Wed under the provisions e* the Limitation Act 191K, it is not rmw in dispute that the present proceedings are governed by Art. 136 Of the Limitation Act 1963. That Article runs as under

(For table see next page)

A period of 12 years has been - provided as the period of limitation for purposes of the execution of any decree other they a decree granting a mandatory injunction. The time from which the said pericid of 12 years begins to run is indicated in column 3 as (1) when the decree or order becomes enforceable or (2) where the decree or any subsequent order directed any payment of money or the delivery of any property to be made at a certain date or at recurring' periods, wt default in making the Payment or delivery in respect of which execution is sought.

- '136. for the, twelve When the decree, or order becomes- enforceable or where Me. or-w-here the Kectltion of. guy yes'd4,c,,se openly subsequent order directs any payment -of. Money decree (other t6 another then any property to be made at a certain dote, decree granting a or A recurring periods,, when -default in making. the -payment wondatory . injunction or delivery in respect of which execution is sought, takes place. it. (.4 or order of any civil court. Provitled that an application for the enforcement, of execution of a decree granting a perpetual injunction shall not be to any period of limitation.'

takes place. An exception, however, is made in the case of the enforcement or execution of a decree granting a perpetual injunction, which is not subjected to any period of limitation. The question is whether having regard to the . terms of the decree passed in this case and set out earlier, the execution petition filed by the first respondent would be in time as per Art. 136. In order to determine the question, it would be necessary to very briefly notice the circumstances which led to the institution Of 0. S. 109 of 1962 Sub Court, -Chengalpattu and the further proceedings therein. That suit was instituted by the father of the petitioner and the second respondent, Sanjeevi Naidu against one Anjaram Naidu for the recovery of a sutn of Rs. 8.133.6si due - on a deed Of mortgage dated 17-11-1959 executed by Rajaram Naidu in favour of Sanjeevi Naidu. During the pendency of the suit, the plaintiff Sanieevi; Naidu died and the petitioner and the second respondent herein were brought on record as his legal representatives and as paintiffs 2 and 3 in that suit. On 14-81963. by means of a joint endorsement. a preliminary decree was passed by which the defendant in that suit was directed to pay a sunti of Rs. 8,549-75 towards the ~ principal, interest and costs and he was granted six months time for paying that amount. A further clause provided that in default of such payment. the hypotheca will be brought to sale. It is not now in dispute that Rajaram. T~aidu, the defendant in 0. S. 109 of 1962. Sub Court. Chengalpattu, did not make. any payment within six months. On such non-payment. the petitioner and the second respondent should have. in the normal course, taken steps to secure a final decree and should also have brought to sale the mortgaged properties to realise the amounts due to them under the decree in 0. S. 109 of 1962. That was also not done by the petitioner and the 4ie ecnd respondent. It is this, that is sought to be taken advantage ,of by the first respondent to claim that his execution petition, though filed on 22-9-1979 would nevertheless be in time. It is seen from clause (1) of the decree in A. S. 342 of 1965, which was affirmed by this court on 2141-1966 in S. A. 1418 of 1966 that the i3kitioner, the second respondent and their mother Bagyammal have all be made 'liable to the first respondent for the payment of the amount of Rupees, a,421.34 with interest at 5-1/2% per an-e *num from 5-2-1966 till the date of realisation.- Considering the scope and effect.of clause (1) of the decree, it is at once obvious 'that the liability -of the petitioner, the second respondent and that mother Bagyammal is immediate and also enforceable with effect from 7 the date' of the, decree viz. 5-2-1966 ~Ok at, least from 21-11-1966 when the -decree was affirmed in S. A. 1416 of 1966. Cl. (2) of the decree, no doubt, directed that the, first respondent should in execution proceed in the first instance against the decree in 0. S. 109 of 1962, Sub Court, Chengalpattv, and that if for some reason, he was not in a position to realize anything, only then, it will be open to him to proceed against the assets, of deceased Sanjeevi. Naidit in the hands of the petitioner and the second respondent But this direction is not a direction with reference to the payment of money or delivery of any property to be made at. A certain date or at recurring periods, as envisaged in column (3) of Art. 136 of the Limitation Act, 1963 so that the limitation: for executing such a decree can be reckoned from the time when - the default in making the payment or delivery in respect of which execution , sought, takes place. The direction. given in clauses. (2) and (3) of the decree is only in the nature of an equitable one, but it does not have the effect of directing the enforcement or the execution of the decree as such from a future date an which payment or delivery of property should have been done, but not done. Clauses (1) to (3) of the decree, examinationed in the light of the language employed in column (3) of Art. 136 of the Limitation Act, 1963 clearly show that in this case, the decree was executable on and from 21-11-1966 and not from some other or future date, when the first respondent -was' unable to realise anything from out of the decree obtained by the petitioner and the second respondent in ,~O.S. 102 of 1962 Sub Court. Chengalpattv.

5. The inability of the first respondent to secure the fruits of the decree in 0. S. 109 of 1962 Sub Court, Chengalpattu obtained by the petitioner and the second respondent against Rajaram Naidu cannot therefore be reckoned as the starting point for purposes of computing the limitation in filing the execution petition. Considering the scope and effect of the 'clauses in the decree sought to be executed in this case, it is manifest that time. would start running as per column (3) of Art. 136 of the limitation Act 1963, with effect from 21-11-1966 with the result that the execution petition flied on 22-9-1979 would be-clearly barred, not having been filed, within 12 years from 22-11-1966.

6. Even assuming that the first respondent was entitled to wait till he realised that he could not secure any benefit out of the decree obtained by the petitioner and the second respondent in 0. S. 109 of 1962, Sub Court. Chengalpattu, it does not in any manner alter the position, ' Earlier, it has been seen that in 0. S. 109 of 1962, a preliminary decree was passed on 14-8-1963, granting six months time to Rajaram Naidu to pay the amount. Admittedly, Rajararn Naidu, who ought to have paid certain amounts in accordance with the preliminary decree in 0. S. 109 of 1962, Sub Court, Chengalpattu, on or before 14-21964 (within six months after 14-8-1963) did not make any payment and upon auch default committed by him. the petitioner and the second respondent therein should have immediately taken steps for the fine of an application for obtaining a final decree in order that the hypotheca may be brought to sale for the realisation of the amounts due under 0. S. 109 of 1962. Under Art. 137 of the Limitation Act 1963, a period of three years. would be available to the petitioner and the second respondent to take such an application and the petitioner and the second respondent lost their right to obtain a final decree, on the expiry of 3 years from 14-2-1964 i.e. 14-3-1967. Even on the footing that 12 years period for the execution of the decree, by the first respondent should be computed from the date on which the petitioner and the second respondent could not - obtain any relief in 0. S. 109 of 1962 Sub Court, Chengalpattu, the first respondent ~ ought to have filed the execution petition on or before 14-2 -1979. As seen already, the execution petition in this case was filed only , on 22-9-1979 and was . therefore obviously out of time. Therefore, looked at from any point of view, in the light of the third column of Art. 136 of petition. Act 1963, the execution pe f le by the first respondent herein was hopelessly out of time. In this vie%y, it is un-1 necessary to consider the decisions relied on by either side, The Court below was, therefore, in error in having concluded that the application would be in time.

7. Though the learned counsel for the first respondent attempted to state that the petitioner and the second respondent were persons entitled to the benefits of the Agriculturists Debt Relief Acts and therefore, the first respondent was entitled to avail himself of the extended period of limitation, yet, he was unable to place before court any material to that effect. In the absence of any materials in support of such a claim made by the first respondent, he cannot be permitted to contend that the petitioner and the second respondent are persons who, are agriculturists entitled to the benefit of the Agriculturists Debt Relief legislations and therefore, the execution petition would be in time. The result is the order of the court below is set aside and the civil revision petition is allowed. There will be, however, no order as to costs.

8. Petition allowed.


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