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Ambujammal Vs. Singarammal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1946Mad67; (1945)2MLJ444
AppellantAmbujammal
RespondentSingarammal and ors.
Cases ReferredIn Satyanarayana v. Seethayya
Excerpt:
- - it was not precisely a reduction but it was a prayer to convert the maintenance into grain basis from cash basis which in effect led to a reduction......the adoption. the suit was ultimately compromised. on the 22nd august, 1922, a compromise decree was passed which provided for the payment of rs. 225 per annum to her towards maintenance, the payment to be in two instalments one in march and the other in june. the decree was being executed until o.s. no. 154 of 1935 was filed by chakravarthi aiyangar praying for the reduction of the maintenance amount awarded under the compromise decree. it was not precisely a reduction but it was a prayer to convert the maintenance into grain basis from cash basis which in effect led to a reduction. chakravarthi aiyangar succeeded to some extent as the first court decreed that maintenance should be put on grain basis. the decree of the first court in o.s. no. 154 of 1935 was passed on 9th july,.....
Judgment:

Yahya Ali, J.

1. Seshadri Aiyangar had two sons, Rangachari and Raghavachari both of whom died issueless. Rangachari's widow is Ambujammal who is the appellant. Raghavachari's widow was Tiruvengadammal who adopted her daughter's son Padmanabhachari, whose father was her son-in-law, Chakravarthi Aiyangar. Ambujammal filed O.S. No. 29 of 1921 against Tiruvengadammal and Chakravarthi, the latter for being in possession of the property belonging to the family. She claimed a half-share in the properties and she questioned the adoption. The suit was ultimately compromised. On the 22nd August, 1922, a compromise decree was passed which provided for the payment of Rs. 225 per annum to her towards maintenance, the payment to be in two instalments one in March and the other in June. The decree was being executed until O.S. No. 154 of 1935 was filed by Chakravarthi Aiyangar praying for the reduction of the maintenance amount awarded under the compromise decree. It was not precisely a reduction but it was a prayer to convert the maintenance into grain basis from cash basis which in effect led to a reduction. Chakravarthi Aiyangar succeeded to some extent as the first Court decreed that maintenance should be put on grain basis. The decree of the first Court in O.S. No. 154 of 1935 was passed on 9th July, 1937. Ambujammal appealed against that decree and the Subordinate Judge of Chingleput allowed the appeal (A.S. No. 56 of 1940) on 12th August, 1940, and dismissed Chakravarthi Aiyangar's suit, thereby restoring with full effect the compromise decree in O.S. No. 29 of 1921 dated 22nd August, 1922. On 24th June, 1937, Ambujammal filed E.P. No. 280 of 1937 for execution of her maintenance decree. That execution petition was dismissed on 13th August, 1937, as not pressed consequent upon an endorsement made on the above execution petition that the petition might be closed for the present. After the passing of the appellate decree in A.S. No. 56 of 1940, Ambujammal filed E.P. No. 386 of 1941 out of which the present appeal arises. She claimed maintenance due to her from 10th January, 1935, to 10th January, 1941. The respondent opposed the application and contended that the claim was barred by limitation for the period from 10th January, 1935, to 31st March, 1938. The learned District Munsiff excluded the maintenance for that period and ordered execution for the balance. An appeal against the said order before the Subordinate Judge of Chingleput was dismissed and the present appeal is against the said order.

2. The learned advocate for the appellant has put forward three propositions. First, that the period from 9th July, 1937, when the District Munsiff passed the decree in O.S. No. 154 of 1935 to 12th August, 1940, when the Subordinate Judge virtually restored in full the decree in O.S. No. 29 of 1921 should be excluded, as during that period the decree in O.S. No. 29 of 1921 was incapable of execution in the form in which it was passed. The second contention is that, if Article 181 does not apply Article 182 would apply and the case would come under the second clause of that Article which provides that where there has been an appeal limitation runs from the date of the order of the appellate Court. The third argument is that E.P. No. 386 of 1941 should be treated as a revival or continuance of E.P. No. 280 of 1937 because there was no final disposal of that execution petition; the order of dismissal having been passed on the endorsement that the petition might be closed for the present.

3. I see no force in any of these three contentions. With regard to the first point, learned Counsel relied on the general rule enunciated by the Privy Council in Nagendranath De v. Sureshchandra De (1932) 63 M.L.J. 329 : L.R. 59 IndAp 283 : I.L.R. 60 Cal. 1 . The rule laid down by their Lordships that

So long as there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorny path of execution, which, if the final result is against them, may lead to no advantage.

4. It was contended that this principle has been followed by Krishnan Pandalai, J., in Mangamma v. Narayanappa : AIR1933Mad785 and by a Division Bench of this Court in Ramachandra Rao v. Venkateswara Rao : AIR1939Mad157 those cases may be distinguished on the ground that in those cases there was an impediment in the way of the execution of the decree. In the present case there was no difficulty whatever in the matter of execution of the decree in O.S. No. 29 of 1921 until the passing of the decree by the District Munsiff in O.S. No. 154 of 1935. Even thereafter the decree could have been executed for that part of the amount which was granted under that decree. In Chidambaram Chettiar v. Meyyappa Chettiar (1932) 63 M.L.J. 329 : L.R. 59 IndAp 283 : I.L.R. 60 Cal. 1 this aspect of the matter has been fully emphasised. The learned Judges in that case said:

In Satyanarayana v. Seethayya : AIR1933Mad785 , this Court held that so long as there is no legal impediment to the filing of a suit earlier, time cannot be excluded, and in Sundaramma v. Abdul Khadar : AIR1939Mad157 , it was held that no equitable grounds for the suspension of a cause of action can be added to the provisions of the Indian Limitation Act. In dealing with a case under Section 15 of the Limitation Act, the Allahabad High Court in Lakshmichand v. Bibi Kulsumunnissa : AIR1939Mad157 pointed out that there is no reference in the section to the case of the execution of one decree being suspended or rendered impossible by a subsequent decree inconsistent with it in another suit.

5. In Satyanarayana v. Seethayya : AIR1933Mad785 , a Division Bench of this Court emphasised the same principle that so long as there was no legal impediment to the filing of the suit earlier, no time can be excluded. The first contention therefore fails.

6. With regard to the second argument, when there is a specific article, viz., Article 181 applicable to the case, Article 182 cannot be invoked.

7. The last argument is equally without substance. The order passed by the Court is that the execution petition was dismissed as it was not pressed. This was undoubtedly a final order and it cannot be said that the subsequent petition filed in 1941 can be treated as a revival or continuance of the petition which was concluded by that order.

8. The appeal fails and is dismissed with costs of the fourth respondent.


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