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Ratnaswami Padayachi and ors. Vs. Kuppuswami Ayyar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1948)2MLJ234
AppellantRatnaswami Padayachi and ors.
RespondentKuppuswami Ayyar and ors.
Cases ReferredChenchu Raman v. Arunachalam
Excerpt:
- - in any event the decree-holder can rely on the well settled principle of law that where the parties are prevented from doing a thing in a 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. the principle that a party should not suffer for the act of the court and that if there is no court sitting on the last day when he should do any particular act he will be in time if he does it on the next clay when the court sits is too well established to be challenged now......court, chidambaram and filed e.p.r. no. 90 of 1943 therein on 30th november, 1942. the twelve years period fixed under section 48, civil procedure code would expire by 29th november, 1942, but as it happened to be a sunday on which the court was closed the execution petition was filed on the next day. objection was taken by the judgment-debtor that no order could be passed on the execution petition by reason of the provisions of section 48, civil procedure code which provides for an absolute term of twelve years within which the execution petition should be filed. it was contended that there is no statutory provision which allows any extension of time beyond the period fixed in section 48 itself and the only exceptions are those which are recognised in that section itself. the.....
Judgment:

Panchapagesa Sastri, J.

1. This second appeal arises out of the execution proceedings in E.P.R. No. 90 of 1943, on the file of the District Munsif's Court of Chidambaram in O.S. No. 289 of 1930, on the file of the District Munsif's Court, Pattukottai. The judgment-debtors are the appellants here. There was a decree against them for Es. 1,200 and odd passed by the District Munsif of Pattukottai on 29th November, 1930. This decree was assigned over to the present first respondent, Kuppuswami Iyer. He had the decree transferred for execution to the District Munsif's Court, Chidambaram and filed E.P.R. No. 90 of 1943 therein on 30th November, 1942. The twelve years period fixed under Section 48, Civil Procedure Code would expire by 29th November, 1942, but as it happened to be a Sunday on which the Court was closed the execution petition was filed on the next day. Objection was taken by the judgment-debtor that no order could be passed on the execution petition by reason of the provisions of Section 48, Civil Procedure Code which provides for an absolute term of twelve years within which the execution petition should be filed. It was contended that there is no statutory provision which allows any extension of time beyond the period fixed in Section 48 itself and the only exceptions are those which are recognised in that section itself. The District Munsif upheld the objection and dismissed the execution petition. On appeal the learned District Judge of South Arcot held that the execution petition was in time and ordered execution. This second appeal is filed by the judgment-debtors against the said judgment of the District Court.

2. It is argued by the learned Counsel for the appellants that Section 48 of the Civil Procedure Code does not provide for any extension of time except in the cases which are provided for in that very section and that the lower appellate Court was wrong in applying Section 4 of the Indian Limitation Act or Section 10 of the General Clauses Act or in relying on any general principle in favour of the decree-holder. Reliance is placed on the decision in Subrama-niam v. Nataraja : AIR1922Mad268 where it was held that Section 15 of the Indian Limitation Act cannot be availed of by a decree-holder to get over the bar of Section 48 of the Civil Procedure Code which provides for a maximum period of twelve years only. It was held then that the period of twelve years aforesaid is not a period of limitation in the strict sense. It is further argued that it is really a condition precedent for a proper execution petition that it should be presented within the period of twelve years provided for in Section 48 of the Civil Procedure Code and in that view the principle of the decision in Chenchu Ramana v. Arunachalam : (1935)69MLJ283 applies to the present case. On the other hand the learned Counsel for the respondents contends that Section 4 of the Limitation Act would govern the present case and that even assuming that it is not applicable Section 10 of the General Clauses Act would apply. In any event the decree-holder can rely on the well settled principle of law that where the parties are prevented from doing a thing in a 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. This principle has been frequently recognised and acted upon in several decisions out of which it is sufficient to refer to the decision in Peary Mohun Aich v. Anunda Charan Biswas I.L.R. (1891) Cal. 631 Sambasivachari v. Ramaswami Reddi : (1898)8MLJ265 and Sivarama Pattar Kamicker v. Krishna Iyer : (1914)26MLJ307 .

3. The arguments before mo have covered a wide ground and the learned Counsel on both sides have placed before me all the various aspects of the matter very elaborately. It is not, however, necessary to deal with the various contentions as in my opinion this second appeal can be disposed of on the application of the principle recognised in Peary Mohun Aich v. Anunda Charan Biswas I.L.R. (1891) Cal. 631 and followed by our Court in Sambasivachari v. Ramaswami Reddi : (1898)8MLJ265 . In the present case we are concerned only with the question as to the effect of the Court being closed on the last day of the twelve years period. It is unnecessary, therefore, to deal with, the wider question whether the twelve-year period fixed is a period of 'limitation' and if so in what sense? There is a certain amount of conflict between the decisions in Subramania v. Nataraja (1922) 43 M.L.J. 163 : I.L.R. 45 Mad. 785 and Kalyanasundaram v. Vaithilinga I.L.R. 1939 Mad. 611. In Drigpal Singh v. Pancham Singh I.L.R. 1939 All. 647 there is a full and elaborate discussion of the conflicting view points. It is not necessary to pursue that matter further in the present case. The principle that a party should not suffer for the act of the Court and that if there is no Court sitting on the last day when he should do any particular act he will be in time if he does it on the next clay when the Court sits is too well established to be challenged now. That has been recognised by the provisions of the General Clauses Act and also by the express provisions of Section 4 of the Indian Limitation Act. In the circumstances it is sufficient to rest this judgment on the application of that principle. In that view it follows that the decision of the learned District Judge is right.

4. The decision of the Full Bench in Chenchu Raman v. Arunachalam ( : (1935)69MLJ283 bears no true analogy to the facts of the present case. There it was held that the period of three months provided by Section 9 of the Provincial Insolvency Act is not a period of limitation for the presentation of a petition for adjudication as an insolvent but is a condition precedent for an available act of bankruptcy. On a proper construction of Sections 7 and 9 of the Act, an act of bankruptcy ceases after the lapse of three months to be a valid ground of adjudication.

5. This appeal accordingly fails and is dismissed with costs of the contesting respondents. No leave.


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