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T.P. Arumugha Bhakthar Vs. K. Narasimha Iyengar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.A.O. No. 119 of 1959
Judge
Reported inAIR1961Mad299
ActsLimitation Act, 1908 - Sections 15 and 182(5); Code of Civil Procedure (CPC) , 1908 - Order 21, Rule 53
AppellantT.P. Arumugha Bhakthar
RespondentK. Narasimha Iyengar and anr.
Appellant AdvocateM. Natesan, Adv.
Respondent AdvocateK.S. Champakesa Iyengar and ;K.C. Srinivasan, Advs.
DispositionAppeal dismissed
Cases ReferredNukamma v. Bhansayya
Excerpt:
.....- order 21 rule 53 (2) provides for execution of attached decree either at instance of attaching decree-holder or holder of attached decree - in present case execution petition filed more than three years after date of decree - same was barred by limitation as held by lower court - attachment that was ordered and made absolute was not injunction or order staying execution of that decree within meaning of section 15 - appellant could not claim benefit of section 15. - - 8 mad 229, is seems to have been suggested that the prohibitory order issued during the attachment would coma within the meaning of section 15. that dictum can not be regarded as good law in the face of i. 5. it should therefore be taken as well settled now that attachment of a decree under the provisions of order..........terms provides for the execution of the attached decree either at the instance of the attaching decree-holder or the holder of the attached decree. the effect of the attachment in this case was not that the appellant was prohibited from execution or seeking the execution of the decree in o. s. no. 17 of 1954, but that he was in fact prevented from realising the money due under that decree for his benefit without first satisfying the claims of the second respondent who has obtained attachment of the decree. 3. in rangaswami chetti v. thangavelu chetti, i.l.r. mad 637 : (a.i.r. 1919 mad. 317) the plaintiff attached a book debt in 1913. the debt was payable in august, 1911. subsequently the attached book debt was brought to sale and purchased by the plaintiff himself and he instituted.....
Judgment:

Rajagopalan, J.

1. The appellant obtained a money decree against the first respondent in O. S. No. 17 of 1954 on 30-8-1955. The second respondent obtained a money decree against the appellant in O. S. No. 8 of 1954 on the file of the same Court on 7-9-1955. In E. P. No 123 of 1957, the second respondent applied for execution of the decree in O. S. No. 8 of 1954, by attaching the decree in O. S. No. 17 of 1954. The second respondent also applied simultaneousely for the issue of a prohibitory order under Order 21 R. 46 C. P. C.

The attachment was ordered and the prohibitory order was issued on 16-11-1957. The attachment of the decree in' O. S. No. 17 of 1954, was made absolute On 14-12-1957, and E. P. No. 123 of 1957 was closed. The second respondent did not take any further steps to execute the decree in O. S. No. 17 of 1954. On 24-9-1958 the appellant filed E. A. No. 373 of 1958 seeking permission to execute the decree in O. S. No. 17 of 1954 and obtained that permission on 11-10-1958.

The appellant then filed E. P. No. 141 of 1958 on 14-10-1958 for execution of the decree in O. S. No. 17 of 1934. The plea of the first respondent, judgment-debtor in O. S. No. 17 of 1954, that the execution petition filed on 14-10-1938, more than three years after the date of the decree 30-8-1955, was barred by limitation was upheld by the Courts below, and hence this second appeal.

2. To save the apparent bar of limitation the learned counsel for the appellant relied on Section 15 of the Limitation Act, and independently of that on Order 21 Rule 53 C. P. C. and the proceedings taken by the second respondent who sought and obtained attachment of the decree in O. S. No. 17 of 1954. Section 15(1) of the Limitation Act provides:-

'In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.'

Section 15 of the Limitation Act cannot apply, as the attachment of the decree in O. S. No. 17. of 1954 under the provisions of Order 21 Rule 53 C. P. C. did not stay the execution of that decree. The attachment that was ordered on 18-11-1957 and made absolute later was not an injunction or order staying execution of that decree within the meaning of Section 15. Order 21 Rule 53(2) C. P. C. in-express terms provides for the execution of the attached decree either at the instance of the attaching decree-holder or the holder of the attached decree. The effect of the attachment in this case was not that the appellant was prohibited from execution or seeking the execution of the decree in O. S. No. 17 of 1954, but that he was in fact prevented from realising the money due under that decree for his benefit without first satisfying the claims of the second respondent who has obtained attachment of the decree.

3. In Rangaswami Chetti v. Thangavelu Chetti, I.L.R. Mad 637 : (A.I.R. 1919 Mad. 317) the plaintiff attached a book debt in 1913. The debt was payable in August, 1911. Subsequently the attached book debt was brought to sale and purchased by the plaintiff himself and he instituted the suit to recover that debt on 15-3-1915. The question was whether the claim was within time. Seshagiri Aiyar J. observed at p. 641 (of ILR Mad) : (at pp. 318-19 of AIR):-

'The first contention raised by the learned vakil for the .appellant before us was that Section 15 of the Limitation Act saved the bar because the attachment was pending between November, 1913. and February, 1915. This contention must be overruled. There is the direct decision of the Allahabad High Court in Shib Singh v. Sitaram, I.L.R. All 76, to the effect that an attachment is not covered by the expression 'an injunction or Order' in Section 15 of the Limitation Act. The Judicial Committee in Beti Maharani v. Collector of Etawah, I.L.R. 17 All 198 (PC) held that in the case of an attachment before judgment Section 15 will not save the bar. In that decision they expressly approve of the principle enunciated in I.L.R. All 76. In Shunmugam v. Moidin, I.L.R. 8 Mad 229, is seems to have been suggested that the prohibitory order issued during the attachment would coma within the meaning of Section 15. That dictum can not be regarded as good law in the face of I.L.R. 17 All 198 (PC).'

4. In Rajitagiripathi v. Bhavani Shankaran, ILR 47 Mad 641 : (A.I.R. 1924 Mad. 673) where the attachment of the decree was before the attaching creditor obtained judgment, the learned Judges referred to I.L.R. Mad 637 : (A.I.R. 1919 Mad 317) and pointed out that 'in that case however the attachment was of a book debt and it is clear that the attachment of a book debt does not operate as an injunction within the meaning of Section 15 of the Limitation Act. The learned Judges observed further:-

'When a decree is attached the form of attachment is given in Appendix E, forms Nos. 22 and 23, and, in accordance with those forms, there would not really be an injunction against execution for the attaching decree-holder can execute the decree himself.'

But on the basis that in the case before them the attachment was not by a decree holder but it was an attachment before judgment the learned Judges came to the conclusion:

'.....the order issued by the Court attaching the decree absolutely prohibited the execution of the decree by anybody....'

and Section 15 of the Limitation Act was held to apply. The learned Judges made it clear that Section 15 would not apply where the attachment is of a decree in execution of a decree obtained by the attaching creditor.

5. It should therefore be taken as well settled now that attachment of a decree under the provisions of Order 21 Rule 53 does not operate as stay of execution of the attached decree, to bring it within the scope of Section 15 of the Limitation Act.

6. The learned counsel for the appellant referred to the observations of Chagla C, J., in Mahadev v. Janaksingh, : AIR1954Bom251 the learned Chief Justice observed:-

'But whatever the position of the judgment-debtor of the decree attached might be, it is clear that as far as the holder of the decree attached is concerned, an order passed under Sub-rule (1) of Rule 53 must operate as a stay of execution. He would be prevented from executing the decree and receiving from his judgment-debtor the amount due under the decree, and the stay can only be got over provided the conditions of executing the decree laid down in Sub-rule (2) are carried out, and that is that he must make an application for execution andthe net proceeds in satisfaction of the decree are applied to the credit of the decree sought to be executed.'

The learned Chief Justice further explained:-

'Therefore, although an attachment would operate as a stay to the extent that the decree-holder cannot execute the decree for his own benefit, he as well as the holder of the decree sought to be executed may both apply for execution under Sub-rule (2).'

It should be noted that no question of the application of Section 15 of the Limitation Act arose for determination in that case.

7. The appellant cannot claim the benefit of Section 15 of the Limitation Act.

8. The next question is, whether the proceedings taken by the second respondent in E. P. No. 123 of 1967, to execute his decree in O. S. No. 8 of 1954, Can be availed of by the appellant to save E. P. No. 141 of 1958 from the bar of limitation. The learned counsel for the appellant contended that, since Order 21 Rule 53 (3) C. P. C. declared that the attaching decree-holder was the representative of the holder of the attached decree, proceedings taken by the second respondent in E. P. No. 123 of 1957, should be viewed as steps-in-aid of the execution of the decree in O. S. No. 17 of 1954, the benefit of which the appellant could claim, though he himself did not take those steps-in-aid.

No doubt there can be a step-in-aid of execution even without an. application for execution. In Ayi Goundan v. Solai Goundan, I.L.R. (1945) Mad 468: (A.I.R. 1945 Mad 139), a Full Bench of this Court reaffirmed the principle laid down in Kunhi v. Seshagiri, I.L.R. Mad 141, But while E. P. No. 123 of 1957 was both an application for execution and a step-in-aid of execution of the decree in O. S. No. 8 of 1954, it did not constitute a step-in-aid of execution of the decree in O. S. No. 17 of 1954. The learned counsel for the appellant referred to Nukamma v. Bhansayya, I.L.R. 1947 Mad 515. : (A.I.R. 1947 Mad. 121).

In that case the plaintiff was entitled to a certain sum from the judgment-debtor under the decree. The plaintiff however was under a liability under the same decree to pay to the Government the court-fee that was payable on the plaint. The decree was dated 23-3-1939. On 9-11-1939 the Government filed an execution petition for recovering the amount of the court-fee. The decree-holder and the judgment-debtors were made parties to it, and attachment of the decree was ordered.

The petition however was closed on 21-3-1940. The Government filed another execution petition on 22-3-1943, and the decree was again attached after notice to all the parties. The plaintiff decree-holder next filed an execution petition on 20-9-1953. The learned Judges held that the petitions for execution filed by the Government on 9-11-1939, and 22-3-1943 were applications for the execution of the decree and ensured also for the benefit of the plaintiff decree-holder. In coming to that conclusion the learned Chief Justice expressly rested his decision thus:-

'It is not necessary for this Court to decide the question whether the applications filed by the Government for the purpose of realising the money due to it by way of stamp duty are steps-in-aid of execution within the meaning of Art. 182, because we accept the appellant's contention that the applications for execution filed by the Government are applications for the execution of the decree itself and therefore enure for the benefit of the plaintiff.'

There is nothing in this decision to support the contention of the learned counsel for the appellant, that E. P. No. 123 of 1957 should be viewed as a step-in-aid taken in execution of the decree in O. S. No. 17 of 1954.

9. The principle laid down in I.L.R. Mad 141 could have covered E. A. No. 373 of 1958. That was a step-in-aid of execution of the decree in O.-S. No. 17 of 1954, though it was not itself an application for execution. But E. A. No. 373 of 1958 was filed only on 24-9-1958, more than three years of the dare of the decree, 30-8-1955. The principle of I.L.R. Mad 141 cannot be extended to treat E. P. No. 123 of 1957 as a step-in-aid of the execution of the decree in O. S. No. 17 of 1954 taken by a person entitled to take such a step-in-aid.

10. The Courts below were right in dismissing E. P. No. 141 of 1958. This civil miscellaneous second appeal fails and is dismissed with costs.


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