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Arumugam Chettiar Vs. V. Kalyanasundaram Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 320 of 1958
Judge
Reported inAIR1961Mad495; (1961)2MLJ5
ActsLimitation Act, 1908 - Schedule - Article 182(2); Code of Civil Procedure (CPC) - Order 41, Rule 33
AppellantArumugam Chettiar
RespondentV. Kalyanasundaram Pillai and anr.
Appellant AdvocateT.R. Srinivasa Iyer and ;S. Krishnaswami, Advs.
Respondent AdvocateC.S. Rajappa, Adv.
DispositionAppeal allowed
Cases ReferredSaraswati Ammal v. Rajagopal Ammal
Excerpt:
.....the appeal was dismissed on 14th november 1956. in the meanwhile, the appellant filed an execution application against the first respondent but it was dismissed on 8th february 1955. on 4th march 1958, an application was filed for execution against the first defendant for the realisation of the amount due under the decree which was more than three years from the date of the final order passed on the previous application but within three years from the date of dismissal of the appeal directed against the second respondent. on the question whether it was in time and whether the appeal to the high court could be held to be from the decree which was being now executed, falling within the scope of article 182(2) of the limitation act (ix of 1908), ; held, that the application for..........therefore provides that the appellate judgment may be for confirming, varying or reversing the decree appealed against. if the appeal be against a portion of the decree only and the appeal be dismissed the decree will be one confirming as a whole the decree appealed against including the portion not appealed against and the confirmation is not limited to the portion appealed against.'5. this view was accepted by the full bench in saraswati ammal v. rajagopal ammal, : air1952mad81 . in that case, a question arose as to the valuation for the purpose of grant of leave to appeal to the supreme court. there were two appeals in the high court by different parties from the same decree of the lower court in a suit. the question to be decided was whether, for the purpose of valuation both the.....
Judgment:

Ramachandra Iyer, J.

1. The only question involved in this appeal is whether the application for execution of the decree in O. S. No. 92 of 1949, on the file of the Sub-Court, Tuticorin, is barred by limitation. The suit was laid against the respondent and his wife Aruna-chalathanimal as the second defendant for recovery of certain monies due on dealings, which the appellant had with the former. Arunachalathammal was impleaded as a guarantor. On 24-11-1951, the Subordinate Judge, Tuticorin, Passed a decree for a sum of Rs. 34,479-6-2 and costs, against the appellant dismissing the suit against Arunachala- . thammal with costs.

As no statement of costs was filed on behalf of Arunachalathammal, those costs were not taxed. Nevertheless, the appellant filed A. S. No. 940 of 1952 in this court, challenging the validity of the decree in so far as it directed costs to be paid by the appellant to Arunachalathammal. That appeal was dismissed on 14-11-1956. In the meanwhile, the appellant had applied on 31-8-1954 for execution of the decree against the respondent. Thatapplication was dismissed on 8-2-1955. On 4-3-1958, the appellant filed an execution application for realisation of the amount due under the decree by arrest of the respondent. The learned Subordinate Judge dismissed the application as barred by limitation. Hence this appeal.

2. As the execution petition, out of which this appeal arises, was filed more than three years after the date of the final order in E. P. No. 64 of 1954, the decree-holder could not invoke the Provisions of Article 182(5) in his favour.

3. Before the learned Subordinate Judge, it was contended that the appropriate Article to apply in the Present case would be Article 182 (2) of the Limitation Act, and, as the appeal against the decree for cost in favour of Arunachalathanimal was dismissed only on 14-11-56, the present application was claimed to be in time. This contention was rejected by the learned Subordinate Judge for the reason that the respondent, who was the first defendant in the suit, was not concerned in the appeal, the appeal being restricted to the decree in favour of the second defendant alone. Support sought for this view in the decision of a Full Bench reported in Srivaramachari v. Anjaneya Chetty, : AIR1951Mad962 (FB), where it was held that the term 'appeal' referred to in Article 182 (2) of the Limitation Act should receive a restricted meaning, and would mean only the decree of the appellate court which was sought to be executed.

As stated earlier, the claim in the present case was against two defendants. There was a singlo decree, though such decree comprised two parts, (1) a direction in favour of the appellant against the. respondent for payment of Rs. 34,479-6-2, and (2) a direction in favour of the second defendant for costs to be paid by the appellant. It was the latter part of the decree that was the subject-matter of the appeal to this Court.

4. The question that arises for consideration is whether the appeal to this Court should be held to be from the decree which is now executed. In Satish Chandra Choudhuri v. Girish Chandra Chakravarti, ILR Cal 813 : AIR 1920 Cal 840(2)), a suit was laid to recover a sum of money against two persons. The suit was decreed against one of them, while it was dismissed against the other. There was an appeal by the plaintiff in regard to the latter portion of the decree, which ultimately failed. A question arose whether the time for execution of the decree against the former should run from the date of the original decree itself or from the date of the dismissal of the appeal, with which the judgment-debtor sought to be proceeded against was not concerned.

It was held that, where an appeal had been preferred against a decree, the period of limitation for an application to execute the original decree would run from the date of the appellate decree, though the appeal was against one defendant and the application for execution was against the other. In Na-gendranalh Dey v. Sureshchandra Dey , the Privy Council held that the words in Article 182(2) 'where there has been an appeal' did hot admit of any qualification either as to the character of the appeal or as to the partiesto it, and that the time for execution would run from the date of the decre.e of the appellate Court, notwithstanding the fact that the judgment debtors, against whom execution was sought, were not parties to the appeal.

In Kanniammal v. Balakrishna, AIR 1935 Mad 557, the trial Court passed a decree granting only some of the several reliefs prayed for by the plaintiff, refusing the rest The plaintiff appealed against the refusal by the trial Court to grant the other reliefs prayed for. He later sought execution in respect of the decree which he obtained in the first instance. It was held that the limitation would begin to run even as regards the trial Court's decree only from the date of the appellate decree. Bcasley, C. J., observed at page 558:

'It seems to me that in this case and indeed in all cases what Article 182 (2) refers to is a decree viz., one decree and that it is not Permissible for Courts in execution to look into the matter and say that, as there are several reliefs which are severable, the decree, although nominally one decree, consists of several decrees. That, Courts are not permitted to take up that attitude is, I think, clearly shown by the recent decision of the Privy Council in .'

These decisions undoubtedly support the principle contended for on behalf of the appellant. The learned counsel for the respondent, however, con-fended that the decisions mentioned above should no longer he regarded as laying down the correct principle, in view of what the Supreme Court held in Bhawampore Banking Corporation Ltd. v. Gouri Shankar Sharma, : [1950]1SCR25 . In that case, there was an ex Parte preliminary mortgage decree, and a final decree followed on 22-12-1941. Even before the final decree was passed, the judgment debtor filed an application under Section 36 of the Bengal Money Lenders Act for re-opening the preliminary decree. But the application was dismissed for default.

Attempts to revive the application failed. Ah appeal therefrom was dismissed on the 3rd July, 1944. The decree-holder filed an execution application on the 9th April 1945, more than three years after the date of the final decree but within the period of limitation if it were to be reckoned from the date of dismissal of the appeal against an order refusing to grant relief under Section 36 of the Bengal Money Lenders Act. Reliance was placed on behalf of the decree-holder inter alia Oil Article 182(2) of the Limitation Act. The Supreme Court rejected the contention, and held that, in order that advantage could be taken of the appellate decree for the Purpose of reckoning the pe-riod of limitation, the appeal should have been from the decree in respect of which execution was sought. Dealing with the contention that Article 182 (2) was comprehensive enough to include an appeal from an order dismissing an application under the Money Lenders Act for default, Fazl Ali J., observed at p. 29 (of SCR) : (at p. 7 of AIR):

'This argument also is a highly far-fetched one, because the expression 'where there has been an appeal' must he read with the words in column 1 of Article 182, viz.. 'for the execution of a decree or order of any Civil Court ..... and, however broadly we may construe it, it cannot he held tocover an appeal from an order which Is passed in a collateral proceeding or which has no direct or immediate connection with the decree under execution.'

The precise scope of Article 182 (2) came up for consideration before a Full Bench of this Court in : AIR1951Mad962 (FB). That was a case in which there was a mortgage decree. During the pendency of the suit, a certain person applied that the defendant was dead and he, as the sole executor under his will, was entitled to be brought on record as his legal representative. His request was rejected on the ground that the defendant was not proved to be dead. A mortgage decree followed, the defendant having been set ex parte. The executor under the alleged Will filed a revision petition to this Court which was later dismissed.

He was, however, able to obtain a probate of the will; impleading him as a party to the execution proceedings, the decree-holder applied for execution of the mortgage decree. The application was filed more than three years after the date of the decree, but within the period of limitation from the date of dismissal of the civil revision petition. The question arose as to the starting point of limitation for execution of the mortgage decree, whether it was from the date of the decree itself or from the date of the order in revision. It was held that Article 182 (2) should he conned to a case where there had been an appeal from the decree in the suit, and could not be extended to an appeal from any interlocutory order in the suit or to an appeal from any collateral proceeding. In delivering the judgment, my Lord, the Chief Justice, referring to the word 'appeal' in Clause 2 of column 3 of Article 182, observed at page 255 (of Mad LJ) : (at p. 967 of AIR) :

'In my opinion, that word which is no doubt a general word must bear a meaning restricted to its context and the meaning that I would give to it is an appeal from a decree or order of the nature mentioned in Clauses (1) (3) and (4); that is to say, an appeal from the original decree or order, an appeal from a decree following a review of judgment, and an appeal from an amended decree. The true test is that the decree of the appellate court in the appeal must be the decree which is sought to be executed.'

It is contended -- a contention which found acceptance with the learned Subordinate Judge -- that these observations would apply to a case, where in the same decree there are two separate directions like the one in the present case, and that, therefore, where a decree sought to be executed is distinct and severable in regard to one portion of it, an appeal in regard to the other portion of the decree would not come within Article 182 (2). This argument was sought to be supported by reference to the decision in Jacinto v. Fernandes, : AIR1939Bom454 . In that casa there was a suit for partition of immoveable property which comprised two portions. The civil court had jurisdiction to effect partition only In regard to one portion. Partition of the other portion had to be effected by the Collector.

In respect of the former property, the court passed a final decree, and the appellate decreetherefrom was passed on 16-1-1931. The Collector passed a partition decree in regard to the other Property on the 27th May 1925. An application for execution of the latter decree was filed in 1934 within three years of the decree on appeal and more than three years after the decree by the Collector. It was held that, for enforcing the decree of the year 1925 in regard to the property partitioned by the Collector, the date of the appellate decree relating to the partition effected by the civil court would have no relevance.

The observations should be held to.be more or less in the nature of obiter, as the learned Judges held on another point that the application was not barred by limitation. But, whatever that might be, in the Present case both the decree for the sum of Rs. 34479-6-2 and the decree for costs against the appellant were passed on the same date in the same suit by the same ccurt. In : AIR1951Mad962 the learned Chief Justice observed that tho language of Clause 2 of Article 182 indicated that the appeal referred to therein was an aPpeal from the Original decree or order mentioned in Clause 1.

That condition is undoubtedly satisfied in the present case. It must be remembered that both the cases, namely, : [1950]1SCR25 and 1951 2 MLJ 245 : AIR 1951 Mad 982 were concerned not with a case of an appeal which arose directly from the decree itself which was subsequently sought to be executed, but from an independent or interlocutory Order in the suit; in such cases it was held that the term 'appeal' in Article 182(2) would refer only to an appeal from the decree which is sought to be executed and not to appeals from interlocutory orders or from those collateral proceedings. The question, whether in tho matter of execution of one part of a decree time would run from the date of the original decree itself or from the date of a' appellate decree relating to another part did not arise In thoso cases.

In Kristnama Chariar v, Ma'gammal, ILR Mad 91 , it was hold that, where only a -portion of a decree for payment of money had been appealed against, the period of limitation for an application to execute the other portion which had not been appealed against would be three years from the date of the decree on appeal, Bliashyam Aiyangar J. in course of the judgment, olwervcd at p. 95 :

'All that Clause 2 of the third column of Article 179 (corresponding to Clause 2 of Article 182) provides is that if a question of limitation should arise, as to the execution of a decree which has been appealed agai'st, Hinitatirn is to be computed not from the date of the original decree but from that of the appellate decree. And as it will generally lead to confusion -- and in certain classes of oases even to anomalies -- if limitation is to be reckoned from different starting points in respect of the execution of different parts of the same decree, the legislature has fixed, without causing any hardship to either party, one and the same starting point. In my opinion, this is sound from a juridical point of view, when an appeal is preferred from a decree of a court of first instance, the suit is continued in the Court of Appeal andre-heard either in whole or in Part, according as the whole suit is litigated again in the Court of Appeal of only a part of it. The final decree in the appeal will thus be the final decree in the suit, whether that be one confirming, varying or reversing the decree of the court of first instance. The mere fact that a matter is litigated both in the court of first instance and again, though only in part, in the court of appeal, cannot convert or split the suit into two and there can be only one final decree in that suit, viz, the decree of the court of appeal. There cannot be two final decrees in such a suit, one by the court of first instance and the other by the court of appeal. Section 577 Civil Procedure Code therefore provides that the appellate judgment may be for confirming, varying or reversing the decree appealed against. If the appeal be against a portion of the decree only and the appeal be dismissed the decree will be one confirming as a whole the decree appealed against including the portion not appealed against and the confirmation is not limited to the portion appealed against.'

5. This view was accepted by the Full Bench in Saraswati Ammal v. Rajagopal Ammal, : AIR1952Mad81 . In that case, a question arose as to the valuation for the purpose of grant of leave to appeal to the Supreme Court. There were two appeals in the High Court by different parties from the same decree of the lower court in a suit. The question to be decided was whether, for the purpose of valuation both the decrees passed by the High Court on appeal should be deemed to be one decree. Referring to the observations of Bhashyam Aiyangar J. in ILR Mad 91 , cited above, it was held that there was only one decree notwithstanding the fact that there were several appeals and separate decrees in each.

6. It would follow that, even though there has been an appeal from only a portion of a decree, the decree that will be ultimately passed thereon would be a decree in the suit itself. This principle is consistent with Order 41, Rule 33 C. P. C., which enables the appellate court to deal with the entire decree, although the appeal may be as to the part of the decree; it also enables the court to give direction in favour of the parties who have not actually filed appeals or cross objections. In one sense, therefore, an appeal from a part of the decree brings the entire subject-matter of the suit before the appellate court.

We are, therefore, of opinion that the true principle to be applied, is that so long as there is an appeal from a portion of a decree, the date of the appellate decree would be starting point of limitation under Article 182 (2) even in regard to the execution of the first court's decree in respect of the portion not appealed against. The distinction laid down in : AIR1951Mad962 (FB) is between a case where an appeal is against a decree itself, whether it be a part of the decree or whole of it, and a case where an appeal Is against an order which is not part of the decree but independent of it, whether it be at interlocutory stage or one in a collateral matter. The case before the learned Judges was of the latter type.

In the former case we are of the view that the provisions of Article 182(2) of the Limitation Act would apply. We are, therefore, of opinion that the order of the learned Subordinate Judge holding that the execution application is barred by limitation cannot be supported. The appeal is allowed with costs. The execution petition will be restored to file and be disposed of.


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