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Sahul Hameed Rowther Vs. P.R.S.A. Arunachalam Pillai and anr. - Court Judgment

LegalCrystal Citation
Subject civil
CourtChennai
Decided On
Reported inAIR1944Mad561
AppellantSahul Hameed Rowther
RespondentP.R.S.A. Arunachalam Pillai and anr.
Cases ReferredIn Rungiah Goundan & Co. v. Nanjappa Rao
Excerpt:
- - we consider that the opinion is well founded, but as the whole appeal has been placed before us it is necessary for us to travel further a field......for execution without an application in that behalf, and article 182, limitation act, requires the decree-holder to do this within three years.5. in meyyappan chettiar v. chidambaram chettiar a.i.r. 1924 mad. 494 coutts-trotter j. said that he was unable to see that there was any difference in rerum natura between an attachment before judgment and an attachment in execution of decree, except that the one was prospective and, after the condition was fulfilled which brought it into active operation, namely the obtaining of a decree, it conferred a priority in time. an attachment before judgment was not a remedy of a kind higher than, or different from, an attachment applied for and obtained for the first time in execution of a decree already passed. these are the observations on which the.....
Judgment:

Leach, C.J.

1. The learned Judges who have referred this appeal to a Full Bench have done so because they are of the opinion that the decision of this Court in Soorayya v. Venkataratnam A.I.R. 1924 Mad. 210 requires reconsideration. We consider that the opinion is well founded, but as the whole appeal has been placed before us it is necessary for us to travel further a field. The facts are somewhat complicated and in order to appreciate the position we have to bear in mind what has happened in three suits. The first of the suits is O.S. No. 11 of 1931 of the Court of the District Munsif of Tuticorin. It resulted in a money decree being obtained by one Ibrahim against respondent 2 on 2nd April 1932. The second case is O.S. No. 13 of 1932 of the Court of the Subordinate Judge of Tuticorin. Here respondent 1 obtained a preliminary mortgage decree against respondent 2. This was made final on 31st October 1933. On 8th October 1935, respondent 1 assigned the decree to one Mohideen, who on 2nd June 1942 assigned it to the appellant, who is the son of Ibrahim. The third suit is O.S. No. 95 of 1932. It was filed in the Court of the District Munsif of Kumbakonam by one Srinivasa Chettiar against Ibrahim. He obtained a decree on 16th February 1933 and on 27th November 1933 he assigned it to respondent 2, who caused it to be transferred to the Court of the District Munsif of Srivaikuntam for execution. Therefore the position was that Ibrahim and respondent 1 had each obtained a decree against respondent 2, who had become entitled to a decree against Ibrahim.

2. On 2nd February 1934, respondent 2 as the assignee of the decree in O.S. No. 95 of 1932, applied for the attachment of the decree which Ibrahim had obtained against him in O.S. No. 11 of 1931, which was for a larger amount. He obtained an order of attachment and on 20th March 1934 he applied to the District Munsif of Tuticorin to enter up satisfaction in O.S. No. 11 of 1931 to the extent of the amount of the decree held by him in O.S. No. 95 of 1932. On 24th September 1935 the District Munsif of Tuticorin passed an order on respondent 2's application for set-off. He allowed the decretal debt in O.S. No. 95 of 1932 to be set off against the decretal debt in O.S. No. 11 of 1931 on the condition that respondent 2 entered up full satisfaction of the decree in O.S. No. 95 of 1932 within a period of six weeks. On 2nd October 1935, respondent 2 applied to the District Munsif of Sri. vaikuntam in O.S. No. 95 of 1932 for an order entering up satisfaction of that decree. The application was opposed by Ibrahim and Mohideen. Their opposition was successful. By an order dated 18th December 1935 the District Munsif refused to enter up satisfaction. This order resulted in respondent 2 filing A. S. No. 19 of 1986 in the Court of the Subordinate Judge of Tuticorin against the District Munsif's order. Ibrahim had filed A. S. No. 111 of 1935 and Mohideen A. S. No. 121 of 1935 in the same Court against the order passed by the District Munsif of Tuticorin allowing part satisfaction to be entered up in O.S. No, 11 of 1981, conditional on respondent 2 entering up satisfaction in O.S. No. 95 of 1982. A. S. No. 19 of 1936 was allowed and A. S. Nos. 111 and 121 of 1935 were dismissed. The dissatisfied parties carried the matters to this Court, either by way of appeal or civil revision petition. The final result was that the order of the District Munsif of Srivaikuntam of 18th December 1935 was upheld and the order of the District Munsif of Tuticorin of 24th September 1935 was set aside.

3. We must now return to O.S. No. 13 of 1932. On 12th November 1934, respondent 1, as the then holder of the decree in that suit, applied for a personal decree and at the same time asked for an attachment before judgment of the decree in O.S. No. 95 of 1932 which was held by respondent 2. On 19th November 1934 the Subordinate Judge passed an interim order of attachment before judgment. On 10th August 1935 he granted respondent 1 a personal decree and at the same time he made the order of attachment before judgment absolute. The attachment was actually effected on 24th September 1935. Nothing was done by way of enforcing payment of the personal decree until 4th January 1940 when Mohideen, as the holder applied to the Subordinate Judge for an order directing its transmission to the Court of the District Munsif of Srivaikuntam for the purpose of execution. The application was granted on 12th January 1940 and Mohideen was directed to serve notice on the judgment-debtor in accordance with Order 21, Rule 22, Civil P.C. Mohideen left the matter there and on the expiration of six months the District Munsif of Srivaikuntam directed the decree to be returned to the Court of the Subordinate Judge of Tuticorin with a certificate of non-satisfaction. On 3rd July 1942 the appellant, who was then the assignee of the decree in O.S. No. 13 of 1982 applied to the Subordinate Court of Tuticorin for an order recognising the assignment to him and directing the re-transfer of the decree to the Court of the District Munsif of Srivaikuntam for execution. The Subordinate Judge held that the application was barred by the law of limitation and consequently dismissed it without going into the merits. The present appeal is from that decision. The learned Judges who have made this reference have indicated that they are in agreement with the Subordinate Judge.

4. For the appellant it is said that the decree in O.S. No. 13 of 1932 remained alive by reason of the application which Mohideen had made on 4th January 1940 for its transmission to the Court of the District Munsif of Srivaikuntam. If the decree were then alive, no doubt this application would be sufficient to start another period of limitation; but the question in this case is whether the decree was alive on 4th January 1940. As we have pointed out, it was passed on 10th August 1935, and more than four years had elapsed. The learned advocate for the appellant says that the attachment before judgment had the effect of keeping the decree alive indefinitely, irrespective of any application for execution. In other words he maintains that once there has been an attachment before judgment the decree which is subsequently passed remains effective until the attachment is removed, however many years may pass in the meantime. The learned advocate here relies on certain observations of Coutts-Trotter J. in Meyyappan Chettiar v. Chidambaram Chettiar A.I.R. 1924 Mad. 494 and the judgment of Pandrang Row J. in Ramanadhan v. Veerappa : AIR1937Mad84 . He has advanced two further contentions. One is that Article 181 and not Article '182, Limitation Act, applies and the other is that, even if Article 182 applies, the decree was still alive on 3rd July 1942 when the appellant applied for the retransmission of the decree to the Srivaikuntam District Munsif's Court. We are unable to accept the argument that once there has been an order of attachment before judgment, the decree which is subsequently passed remains alive until the order of attachment is cancelled. This contention is contrary to the provisions of the Limitation Act. Article 182 (1) provides that in respect of the execution of a decree or order of a civil Court, not provided for by Article 183 or by Section 48, Civil P.C., the period of limitation is three years and commences from the date of the decree or order. In our judgment this decree falls within Article 182. Section 9, Limitation Act, states that once time has begun to run, no subsequent disability or inability to sue stops it. Order 38, Rule 11, Civil P.C., makes it clear that where there has been an attachment before judgment, it is unnecessary to apply for a further order of attachment; but it makes it equally clear that there can be no order for execution without an application in that behalf, and Article 182, Limitation Act, requires the decree-holder to do this within three years.

5. In Meyyappan Chettiar v. Chidambaram Chettiar A.I.R. 1924 Mad. 494 Coutts-Trotter J. said that he was unable to see that there was any difference in rerum natura between an attachment before judgment and an attachment in execution of decree, except that the one was prospective and, after the condition was fulfilled which brought it into active operation, namely the obtaining of a decree, it conferred a priority in time. An attachment before judgment was not a remedy of a kind higher than, or different from, an attachment applied for and obtained for the first time in execution of a decree already passed. These are the observations on which the learned advocate for the appellant so much relies, but the learned Judge was not there discussing the question with which we are concerned, and it is manifest from what he had said before that he was not intending to imply that an attachment before judgment operates to keep alive the subsequent decree until the attachment is removed, however lengthy may be the interval. Earlier in the judgment he said that it appeared to him that Order 38, Rule 11 provided that, when property had been attached before judgment, it remained attached when 'in due course' after judgment the decree-holder applied for execution of his decree. In Ramanadhan v. Veerappa : AIR1937Mad84 Pandrang Row J. after referring to the observations of Coutts-Trotter J. in Meyyappan Chettiar v. Chidambaram Chettiar A.I.R. 1924 Mad. 494 said:

The ratio decidendi of the Full Bench case appears to be that there must be some unmistakable declaration of the decree-holder's intention to execute the decree, before the attachment before judgment can become an attachment in execution of the decree. No doubt in ordinary cases such an election or declaration of intention would be made by presenting an execution application. But it does not seem that in every case without exception it should be done in this manner and in no other. If intention to execute can be inferred from other circumstances, there can be no doubt in this case there was an intention to execute as is apparent from the fact that the respondents impleaded themselves in the appeals pending in the High Court in connexion with O.S. No. 153 of 1910 and were appearing in, those appeals till the very end.

It is said that here Pandrang Row J. was laying down the proposition that an intention to execute is all that is necessary to keep an attachment before judgment alive. It matters not whether the decree-holder applies for execution provided that an intention to do so is to be gathered from what has happened in other proceedings. In this connexion the learned advocate for the appellant points to the fact that respondent l had opposed respondent 2's application to have the decree in O.S. No. 95 of 1932 set off by way of part satisfaction of the decree in O.S. No. 11 of 1931. If the opinion expressed by Pandrang Row J. is correct in law, respondent 1's action would probably have been sufficient for the appellant, but we are unable to accept what the learned Judge said in Ramanadhan v. Veerappa : AIR1937Mad84 as correctly expressing the law. Whether an attachment before judgment continues indefinitely after judgment cannot depend on what has happened in other proceedings. For continuance beyond three years from the date of the decree an application for execution must be filed within that period, otherwise the decree-holder loses his remedy.

6. We have said sufficient to indicate that we do not agree that Article 181 applies in this case, as the appellant would have it, and this is a fitting stage at which to make reference to Soorayya v. Venkataratnam A.I.R. 1924 Mad. 210. That case was decided by Krishnan and Odgers JJ. The facts were these. A decree-holder had obtained an attachment before judgment. A third party objected to the attachment and his objection was allowed. Consequently the decree-holder was compelled to file a suit to establish his right to sell the properties in execution. The suit was successful, whereupon the decree-holder applied for the sale of the properties attached before judgment. By this time more than three years had elapsed from the date of the decree and the judgment-debtor contended that the decree had become time-barred. The argument was rejected on the ground that Article 181, Limitation Act, was applicable and the period of three years ran from the date of the removal of the obstruction. We consider that the learned Judges here erred. Article 181 is a residuary article. It cannot be applied if the case falls within Article 182, and in our opinion Article 182 applied. In the course of the judgment it was said:

The question thus before us is whether the view taken by the District Munsif that the present application is an application which could be treated as one for reviving the execution proceedings already commenced can be supported or not. It is clear from the authorities that, when an execution application is brought and properties are attached in execution of that application if any obstacle is placed in the way of the properties being sold and assets realised for the purpose of meeting the decree debt by the action of a third party putting in a claim petition and it becomes necessary for the decree-holder either to dispute the claim proceedings or to bring a suit to have the matter decided whether the properties are those of the judgment-debtor, his subsequent application to sell those properties is not governed by Article 182, Limitation Act, but is in the nature of a revival of the original application and Article 181, Limitation Act, will apply ... It is, however, contended by the learned vakil for the respondent before us that that principle will not apply in the case of an attachment before judgment unless it had been followed by an application for execution of the decree after the decree was passed. We are unable to accept that contention. Under the Code the attachment before judgment enures to the benefit of the decree-holder when the decree is passed so that it is no longer necessary to attach the property : vide Order 38, Rule 11, Civil P.C.

We cannot accept this as an accurate statement of the legal position. As we have already pointed out, Rule 11 of Order 38 contemplates an application for execution which the learned Judges in this case did not really appreciate. The fact that there the execution proceedings were interrupted and it became necessary for the decree-holder to get his right of sale declared did not take the case out of Article 182 and relegate it to the residuary article. In Rungiah Goundan & Co. v. Nanjappa Rao (1903) 26 Mad. 780, it was pointed out that the criterion for determining whether Article 179 or Article 178 of the old Limitation Act - these correspond to Articles 182 and 181 of the present Act - applied to a particular application was to ascertain whether any one of the six points of time specified in Col. 3 of Article 179 was applicable to it, and if none of them was applicable, only then would Article 178 apply. Clause (1) of Article 182 applies here and therefore the case cannot fall within Article 181. There is no substance at all in the contention that the time taken up in deciding respondent 2's application for set-off and the subsequent appeals should in any event be excluded. Those proceedings had nothing to do with the decree obtained in O.S. No. 13 of 1932 which throughout remained executable, notwithstanding what was transpiring or had transpired in the Court of the District Munsif of Tuticorin and in the Court of the District Munsif of Srivaikuntam. For these reasons the appeal is dismissed with costs in favour of respondent 2 and these will include the costs of the hearing before King and Horwill JJ.


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