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Arunachala Gounder Vs. S. Alagappa Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberSecond App. No. 1422 of 1968
Judge
Reported inAIR1972Mad293
ActsLimitation Act, 1908 - Articles 97, 115 and 116; Limitation Act, 1963 - Articles 24, 47 and 55
AppellantArunachala Gounder
RespondentS. Alagappa Chettiar and ors.
Cases ReferredVenkataswami v. Venkayya
Excerpt:
.....of deceased partner - person purchasing property from other partner filed suit against appellant - suit decreed and appeal and second appeal preferred by appellant dismissed - appellant now filed suit for recovery against legal representatives of deceased partner - suit time barred as limitation period starts running from decree before trial court - subsequent appeal will not enlarge time period for filing suit for recovery of money from legal representatives of deceased partner. - - 88 of 1964 on the file of the court of the district munsif of tirupur, who failed before the trial court, as well as the first appellate court, is the appellant before this court. 24 and 55 of the schedule to the limitation act of 1963, as well as art. 3. in paragraph 13 of his judgment the learned..........was appointed and that receiver took possession of the properties from the appellant herein. that suit was decreed and the appeal and the second appeal preferred by the appellant herein were dismissed, the second appeal having been dismissed on 21-10-1960 in s. a. 235 of 1958. after the dismissal of the said second appeal, the appellant herein instituted the present suit for recovery of a sum of rs. 3000 from the respondents herein being the purchase money. in the plaint itself, the appellant averred that the purchase price along with interest came to much more than rs. 3000 and that he was restricting the claim to a sum of rs. 3000.2. various defences were put forward. one such defence put forward by the respondents herein was that the suit was barred by limitation. both the courts.....
Judgment:

1. The plaintiff in O. S. No. 88 of 1964 on the file of the Court of the District Munsif of Tirupur, who failed before the trial Court, as well as the first appellate Court, is the appellant before this Court. It is necessary to refer to a few facts for the purpose of understanding the controversy between the parties. The property belonged to a firm by name P. L. V. R. Subramania Chettiar firm. After the death of Subramania Chettiar, his widow Chinnammal Achi, the third defendant in the suit, along with her sons, defendants 1 and 2, started dealing with the properties belonging to the firm, while the other surviving partner Valliappa Chettiar in his turn started dealing with certain properties. The suit properties were sold by the first defendant and the second defendant represented by his mother the third defendant for a sum of Rs. 1500 on 26-8-1947 under Ex. A-1 in favour of the appellant herein and he was put in possession of the suit properties. Subsequently, the other surviving partner, namely, Valliappa Chettiar, sold the identical properties to another party. On the basis of that sale deed executed by Valliappa Chettiar, the vendee instituted a suit against the appellant herein for a declaration of title and injunction and in that suit, a Receiver was appointed and that Receiver took possession of the properties from the appellant herein. That suit was decreed and the appeal and the second appeal preferred by the appellant herein were dismissed, the second appeal having been dismissed on 21-10-1960 in S. A. 235 of 1958. After the dismissal of the said second appeal, the appellant herein instituted the present suit for recovery of a sum of Rs. 3000 from the respondents herein being the purchase money. In the plaint itself, the appellant averred that the purchase price along with interest came to much more than Rs. 3000 and that he was restricting the claim to a sum of Rs. 3000.

2. Various defences were put forward. One such defence put forward by the respondents herein was that the suit was barred by limitation. Both the Courts below proceeded on the basis that the proper Article of Schedule I to the Limitation Act of 1908 that was applicable to the case was Art. 97 and that with reference to that Article the period of limitation commenced from the date when the suit instituted by the vendee from Valliappa Chettiar was decreed and calculating the period of limitation from the date, held that the suit was barred by limitation. As a matter of fact, the learned Subordinate Judge, who disposed of the appeal, considered the case not only with reference to Art. 97 of Schedule I to the Limitation Act of 1908, but also with reference to Arts. 24 and 55 of the Schedule to the Limitation Act of 1963, as well as Art. 47 of the schedule to the Limitation Act of 1963, corresponding to Article 97 of Schedule I to the Limitation Act of 1908. Once the Courts below came to the conclusion that the suit was barred by limitation, the same was dismissed. It is the correctness of this conclusion of the Courts below that is being challenged by the learned counsel for the appellant before me.

3. In paragraph 13 of his judgment the learned District Munsif had pointed out that the learned counsel for the plaintiff (appellant herein) stated that he was not asking for any relief of damages for breach of convenant of title, but he was only basing his claim on a failure of consideration and that he contended that Article 55 of the new Limitation Act did not apply to the facts of the case and that only the provisions of Article 47 of the new Act would be applicable. Article 47 of the Schedule to the Limitation Act of 1963 corresponding to Art. 97 of the first Schedule to the Limitation Act of 1908 is as follows:

Description of suit Period of limitation Time from which the period begins to run

47. For money paid upon an existing consideration which afterwards fails Three years The date of the failure

Once the claim is made with reference to Article 47 of the schedule to the Limitation Act, 1963, the decision of the Privy Council in Jusqurn Boid v. Pirthichandlal, 46 IA 52 : AIR 1918 PC 151 is directly against the appellant. That case was actually concerned with Art. 97 of the schedule to the Limitation Act and it was held that the starting pint of limitation was the date of the decree of the trial Court. For the purpose of coming to this conclusion the Privy Council has pointed out that as between the decree of the trial Court and the decree of the appellate Court, whatever may be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended by presentation of an appeal, nor is its operation interrupted where the decree on appeal is one of dismissal. This decision of the Privy Council was followed by a Bench of this Court in Mohamed Ali Sheriff v. Budharaja Venkatapathiraju, 39 MLJ 449 : AIR 1920 Mad 634, which again considered the case of Article 97.

4. However, before me, the learned counsel for the appellant argued on the basis that it is Article 116 of Schedule I to the Limitation Act, 1908 that is applicable and if so the starting point of limitation will be the date of the appellate decree. For this purpose, strong reliance was placed on the observation of a Bench of this Court made in Venkataswami v. Venkayya, : AIR1953Mad529 . That case dealt with Article 116 of Schedule I to the Limitation Act of 1908 and it was observed:

'We are inclined to hold that until the determination of the appeal on 16-1-1945, it could not reasonably be held that the title of the plaintiff has been conclusively determined against him and found in favour of the auction-purchaser, in view of the plaintiff having filed in appeal questioning the decision of the first court. In these proceedings it must be stated that the plaintiff was in fact fighting out the case of the defendant and trying his best to see if he could have his title established against the auction-purchaser in O. S. 170 of 1932, though the defendant had failed initially in the claim petition and subsequently in the proceedings which he instituted and conducted'.

It is on the basis of this observation the learned counsel for the appellant contended that it is the date of the decree in second appeal that has to be taken into account as far as the present case is concerned as the starting point of limitation and not the date of the original decree. As a matter of principle, I am inclined to agree with this contention, namely, that it is the date of the appellate decree that has to be taken into account and not the original decree. It may be noticed in this context that Article 116 of Schedule I of the Limitation Act of 1908 does not say anything about the decree being the starting point of limitation. Article 116 is as follows:

Description of suit Period of limitation Time from which the period begins to run

116. For compensation for the breach of a contract in writing registered Six years When the period of limitation would being to run against a suit brought on a similar contract not registered.

What the third column to this Article states is 'when the period of limitation would begin to run against a suit brought on a similar contract not registered.' That throws us back to the third column of Article 115 which states-

'When the contract is broken or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or (where the breach is continuing) when it ceases'.

5. Therefore, with reference to the language of the statute, the starting point of limitation is when the contract is broken. In case of this type there is no question of the vendor actually breaking the convenant for title or the convenant for quiet possession. It is by virtue of somebody else claiming title to the property that it is established that the vendor had no title to the property. Consequently, it is the fact of the establishment that the vendor has no title to the property that will constitute the starting point of limitation. Once an appeal is preferred against the decree of the trial Court, it could be said that till the appeal is dismissed, the breach had not been established. Only when the appeal is disposed of and the appellate Court also is against the vendor, it could be said that the vendor had broken the contract. Until that is done, there is no breach of contract.

Secondly, even if the trial Court has rejected the case of the vendor, the decree of the trial Court may be reversed by the appellate Court. If it is held that the date of the decree of the trial Court is the starting point of limitation, the vendee will have to file a suit for recovery of compensation during the pendency of the appeal itself and if the vendor succeeds in the appeal, then this suit will become really unnecessary and will have to be either withdrawn or dismissed. Certainly, the statute could not have Contemplated the filing of such futile suits. Therefore, as a general principle, I am inclined to agree with the contention of the learned counsel for the appellant that it is not the date of the decree of the trial Court that should be the starting point of limitation for purposes of Article 116, but it is the date of the final decree, or the date of the appellate decree which should be the starting point of limitation. Notwithstanding this conclusion of mine, I am of the view that the appellant is not entitled to succeed in the present second appeal in view of one peculiar feature.

6. The suit was instituted by the vendees from Valliappa Chettiar against the appellant herein without impleading the respondents herein as parties to the suit. The first appeal as well as the second appeal, were preferred only by the appellant herein and the appellant's vendors were not at all in the picture. Suppose the appellant's vendors were content with the decree of the trial court and had really felt that they had no chance of succeeding in the appellate Court and therefore they did not prefer an appeal, or they did not get themselves impleaded in the suit or the appeal, it was not open to the appellant herein to say that he would go on fighting the case upto the highest court and only on his failure in the highest court he would institute a suit against his vendors for compensation or refund of the purchase money. Once the vendors, namely, the respondents herein, were not aware of the proceedings taken by the appellant against the decree passed by the trial Court in the suit instituted by the vendees from Valliappa Chettiar certainly the respondents herein are entitled to assume that the appellant herein had no intention to pursue the remedy available to him in law as far as they are concerned. It is in view of this peculiar feature alone, an attempt was made before the learned Subordinate Judge in the present case by filing I. A. 551 of 1967 for the purpose of showing that the respondents herein were helping or supporting the appellant herein in prosecuting the first appeal as well as second appeal arising out of the suit instituted by the vendees from Valliappa Chettiar. However, the learned Subordinate Judge dismissed that application. The learned Subordinate Judge pointed out that the documents sought to be produced in that interlocutory application only showed that some assistance was sought at the instance of one Ponniah Pillai in the conduct of the suit and that there was nothing to show that that Ponniah Pillai was acting on behalf of the respondents herein. There is therefore absolutely no material to show that when the appellant herein preferred the first appeal, as well as the second appeal to this Court, he was acting on behalf of or with the consent of the respondents herein and therefore in that sense he was really fighting the battle of the respondents, as observed by the Bench of this Court in the decision in : AIR1953Mad529 already extracted. So long as the appellant had not impleaded the respondents herein in those proceedings, or had not filed the appeal and the second appeal with their consent, or on their behalf, it is not possible to hold that the breach of covenant contemplated by Article 116 took place only when the appellate decree was passed and not on the date when the trial Court passed the decree against the appellant herein. Therefore, even on the basis of the general principle that it is the date of the appellate decree that should be taken as the starting point of limitation and not the date of the decree of the trial Curt, as far as the present case is concerned, I am unable to hold that the suit instituted by the appellant is not barred by limitation. I may mention straightway that if the date of the decree of this Court in S. A. 235 of 1958 is not taken as the starting point of limitation, admittedly, the suit instituted by the appellant herein, was barred by limitation.

7. Under these circumstances the second appeal fails and is dismissed. There will be no order as to costs.


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