Skip to content


T. Sankara Menon and ors. Vs. T.V. Sundara Aiyar - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtChennai
Decided On
Reported inAIR1943Mad129; (1943)1MLJ9
AppellantT. Sankara Menon and ors.
RespondentT.V. Sundara Aiyar
Cases ReferredThangishettithi v. Duja Shetti
Excerpt:
- - 452. the allahabad high court endorsed its earlier decision in latafat ali khan v......appellants in the court of the subordinate judge of south malabar. on the 19th march, 1937, the decree-holder applied for the sale of one of the several properties covered by the decree. this item was sold on the 6th september, 1937, and on the 4th march, 1938, the sale was confirmed and partial satisfaction entered up. on the 6th october, 1939, the decree-holder applied for delivery of possession of the property sold. the appellants asked the decree-holder to give them time and he consented to do so. consequently on the 16th 'november, 1939, this application was dismissed. on the 30th september 1940, the decree-holder filed a second application for an order directing delivery of possession of the property which he had purchased, and on the 27th november, the parties reported to the.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The questions in this appeal relate to the law of limitation. On the 7th December, 1936, the respondent obtained a mortgage-decree against the appellants in the Court of the Subordinate Judge of South Malabar. On the 19th March, 1937, the decree-holder applied for the sale of one of the several properties covered by the decree. This item was sold on the 6th September, 1937, and on the 4th March, 1938, the sale was confirmed and partial satisfaction entered up. On the 6th October, 1939, the decree-holder applied for delivery of possession of the property sold. The appellants asked the decree-holder to give them time and he consented to do so. Consequently on the 16th 'November, 1939, this application was dismissed. On the 30th September 1940, the decree-holder filed a second application for an order directing delivery of possession of the property which he had purchased, and on the 27th November, the parties reported to the Court, that possession had been given. On the 28th August, 1941, the decree-holder filed the application which has given rise to this appeal. He applied for the sale of the remaining items of property covered by : his decree. It was contended by the appellants that the application was barred by the law of limitation. They said that the decree-holder could not rely on his applications for delivery of possession which he had filed on the 6th October, 1939, and on the 30th September, 1940. The Subordinate Judge rejected their contention, relying on the decisions of this Court in Lakshmanan Chettiar v. Kannammal I.L.R. (1900) Mad. 185, and Kannan v. Avvula Haji (1926) 52 M.L.J. 1 : 50 Mad. 403.

2. The judgment-debtors appealed to this Court and in the first instance the appeal came before Krishnaswami Ayyangar and Kunhi Raman, JJ. As they were of the opinion that the decisions of this Court in Sultan Sahib Marakayar v. Chidambaram Chettiar (1908) 19 M.L.J. 224 : 32 Mad. 136, Ramaswami Aiyar v. Abdul Aziz Sahib (1916) 3 L.W. 191, and Nandur Subbayya v. Raja Venkataramayya Apparao (1917) 7 L.W. 16, were in conflict with the decisions relied upon by the Subordinate Judge, they referred the appeal to a Full Bench for decision.

3. The judgments in Sultan Sahib Marakayar v. Chidambaram Chettiar (1908) 19 M.L.J. 224 : 32 Mad. 136, Ramaswami Aiyar v. Abdul Aziz Sahib (1916) 3 L.W. 191, and Nandur Subbayya v. Raja Venkataramayya Apparao (1917) 7 L.W. 16, are not in fact really in conflict with Lakshmanan Chettiar v. Kannammal I.L.R. (1900) Mad. 185 or Kannan v. Avvula Haji (1926) 52 M.L.J. 1 : 50 Mad. 403. In each of the cases relied upon by the Subordinate Judge the question was whether the application could be deemed to be a step-in-aid of execution. The decisions referred to by Krishnaswami Ayyangar and Kunhi Raman, JJ., relate to applications for execution. The present i case does not fall within those decisions. In the Full Bench case of Abdul Aziz Sahib v. Chokkan Chettiar : (1935)69MLJ821 . this Court held that an application for delivery could not be regarded as an application for execution and so far as we are concerned the decision must be regarded as final. The question whether the applications on which the decree-holder relies in this case amount to steps-in-aid of execution, however, remains. .

4. There is a long line of decisions of this Court which says that an application by a decree-holder for the payment out to him of money lying in Court and obtained in execution of his decree is a step-in-aid of its execution. The earliest case is Venkatarayalu v. Narasimha I.L.R. (1880) Mad. 174, which was decided 62 years ago. This decision was followed in Kerala Varnia Valia Raja v. Shangaram I.L.R. (1892) Mad. 452 , Koormayya v. Krishnamma. Naidu (1893) 3 M.L.J. 296 : 17 Mad. 165, Thangishettithi v. Duja Shetti : (1918)35MLJ575 Sabapathi Chetti v. Shanmugham Cheiti (1923) 46 M.L.J. 453, and Balaguruswami Naicken v. Guruswami Naicken (1924) 48 M.L.J. 506. There can be no difference in' principle when the application is for payment out of Court of money realised in execution and when it is an application for possession of property sold in execution by the decree-holder purchaser. This was pointed out by the Allahabad High Court in Motilal v. Makund Singh I.L.R. (1897) All. 477. The judgment there was approved by this Court in Lakshmanan Chettiar v. Kannammal I.L.R. (1900) Mad. 185, where two earlier Calcutta decisions which ran contrary were also discussed.

5. The principle laid down by this Court in Venkatarayalu v. Narasimha I.L.R. (1880) Mad. 174, was in effect applied by it in Lakshmanan Chettiar v. Kannammal I.L.R. (1900) Mad. 185, Kasinatha Aiyar v. Uthumunnesa Rowther (1901) 12 M.L.J. 1 : 25 Mad. 529, and Kannan v. Avvula Haji (1926) 52 M.L.J. 1 : 50 Mad. 403, where the applications referred to possession of immovable property sold in execution and bought by the decree-holder and the opinion of this Court is now shared by the High Courts of Calcutta, Bombay and Allahabad. The earlier Calcutta cases which were in conflict are Hem Chunder Chowdhury v. Brojo Soondhury Debee I.L.R. (1881) Cal. 89, and Fuzloor, Rahman v. Altaf Hussain I.L.R. (1884) Cal. 541. In Sariatoolla Molle v. Raj Kumar Roy I.L.R. (1899) Cal. 709, the Calcutta High Court, however, expressly approved of the judgment in Motilal v : Mukund Singh I.L.R. (1897) All. 477, and a Full Bench of the Calcutta High Court approved of the judgment in Sariatoolla Molle v. Raj Kumar Roy I.L.R. (1899) Cal. 709, in Kailash Chander Tarapodar v. Gopal Chandra Poddar I.L.R. (1926) Cal. 781. In Babu Chand v. Mugnit Rao I.L.R. (1896) Bom. 340, the Bombay High Court expressed agreement with the opinion held by this High Court and the Allahabad High Court and re-affirmed its agreement in Sadasiva Bin Mahadu v. Narayan Vithal I.L.R. (1911) Bom. 452. The Allahabad High Court endorsed its earlier decision in Latafat Ali Khan v. Kalyanmal I.L.R. 1938 All. 342.

6. Therefore the position is this. This Court has consistently regarded an application for possession of property or money realised by a plaintiff decree-holder in execution as being a step-in-aid of execution and that opinion is shared by other High Courts in India. When the present question was raised in Thangishettithi v. Duja Shetti : (1918)35MLJ575 , this Court said that it must adhere to the view which it had already taken, and there is all the more reason why we should adhere to it now when further decisions have been given to the same effect. It is difficult to imagine a more suitable situation for the application of the maxim stare decisis et non quieta movere.

7. The appeal will be dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //