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Ponnambath Koomulli Gopalan Nambiar Vs. Varisya Kuniyil Katankotan Krishnan Nambiar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1870 of 1952
Judge
Reported inAIR1955Mad718
ActsCode of Civil Procedure (CPC) , 1908 - Sections 46; Madras Village Courts Act, 1889 - Sections 66 and 67
AppellantPonnambath Koomulli Gopalan Nambiar
RespondentVarisya Kuniyil Katankotan Krishnan Nambiar
Appellant AdvocateV.P. Gopalan Nambiar, Adv.
Respondent AdvocateAtchuthan Nambiar, Adv.
DispositionRevision petition dismissed
Cases ReferredRanganadhan v. Ponnacharamma
Excerpt:
.....to decrees of village courts transferred for execution to district munsiffs courts ; where a decree passed by a village court is transferred to the court of a district munsif for execution section 48 of the code of civil procedure (act v of 1908) would not apply to the execution of such decrees.; the madras village courts act (i of 1989) provides for execution of a village court decree by two classes of courts, namely, a village court, and the court of the district munsif to which it is transmitted or to which it is withdrawn. there is no provision in the madras village courts act making the civil procedure code or any part of it applicable to proceedings under the said act, and, therefore, section 48 of the civil procedure code as such is not applicable.; where a decree passed by..........by the village courts-.3. chapter vi, madras viilage courts act deals with the execution of a decree passed by a village court. section 48 provides that the decree shall be executed by the village court which passed it or by a village court or district munsif to whom it is sent for execution under the provisions thereinafter mentioned. except when the execution is by a district munsif's court, no judgment debtor may be arrested and no immoveable property attached in execution of a decree of a village court (section 51).the village court may attach any moveable property within its jurisdiction, belonging to the judgment-debtor (section 52). there are provisions laying down the procedure to be adopted in bringing the property attached to sale and in the con-duet of the sale and.....
Judgment:
1. This revision petition involves a question of some importance on which no direct authority was cited to us. A decree was passed by a Panchayat Court on 20-11-1937. That decree was transferred to the court of the Additional District Munsif of Tellicherry for execution. There were several execution applications, and on 28-6-1951, the execution petition out of which this revision petition arises was filed. It is common ground that the petition was not barred under Article 182 of Schedule I, Limitation Act.

But objection was taken by the judgment debtor that the petition was hatred by reason of Section 48, C. P. C. The learned District Munsif overruled the objection, holding that Section 48, C. P. C. did not apply. There was an appeal to the District Judge, who confirmed the decision of the District Munsif. It is to revise this order of the learned District Judge that the above civil revision petition was filed. This petition came up , before me, sitting alone, and as counsel represented that the question arising in this case had not been directly dealt with in any decision, I directed the petition to be posted before a Division Bench.

2. Before dealing with the contentions raised and the decisions cited before us, it is necessary to refer to the material provisions of the Madras Village Courts Act relating to the execution of decrees passed by the village courts-.

3. Chapter VI, Madras Viilage Courts Act deals with the execution of a decree passed by a village court. Section 48 provides that the decree shall be executed by the village court which passed it or by a village court or District Munsif to whom it is sent for execution under the provisions thereinafter mentioned. Except when the execution is by a District Munsif's Court, no judgment debtor may be arrested and no immoveable property attached in execution of a decree of a village court (Section 51).

The village court may attach any moveable property within its jurisdiction, belonging to the judgment-debtor (Section 52). There are provisions laying down the procedure to be adopted in bringing the property attached to sale and in the con-duet of the sale and delivery of the property sold in auction to the purchaser. Then comes Section GO, which provides for the transmission of a decree of a village court to the District Munsif for execution. That section is in the following terms:

"66(1). Any decree passed by a village court may on the application of the decree-holder, be transmitted for execution to the District Munsif who may

(a) execute the decree as if it were a decree passed by himself; or

(b) transmit it for execution to the court of any other village within his jurisdiction in which the defendant is represented to have movcable property; or

(c) transmit it to the court of any other District Munsif within whose jurisdiction the defendant is represented to reside or to havte property.

(2) The District Munsif to whom a decree has been transmitted under Clause (c) of Sub-section (1) may execute the decree as if it were a decree passed by himself or transmit it for execution to the court of any village within iris jurisdiction in which the defendant is represented to have movie-able property.

(3) The village court to which the decree is transmitted under Clause (b) of Sub-section (1) or Sub-section (2) shall proceed as if the decree was passed by itself."

Even without an application, it is competent to the District Munsif to withdraw the execution of any decree from a village court, and to execute it himself, as if it were a decree passed by himself (Section 67). Section 67.A expressly prohibits an appeal from any order by a District Munsif relating to the attachment or sale of moveable property in execution of any village court decree.

Section 71 which occurs in the Miscellaneous Chapter provides for the substitution of a deceased decree-holder by his legal representative, and like-wise, Section 72 for the execution of the decree against the legal representative of a deceased judgment debtor. It is necessary to refer only to one other general section, and that is Section 20 which says that the provisions of the Indian Limitation Act shall apply to suits and application under the Act.

4. The question is whether Section 48, C. P.. C. applies to the execution of a decree of a village court. There is no provision in the Village Courts Act making the Civil Procedure Code or any part of it applicable to proceedings under the Village Courts Act. There are several decisions Based on this omission. Vide -- 'Krishna Chetti V. Narayanappa", AIR 1938 Mad 497 (A); --Lingier v. Ramakrishnier', AIR 1934 Mad 8 (B); -- 'Subbarao v. Narasiah', AIR 1940 Wad 495 (C; and. -- Sankaran Nair v. Atchuthan', AIR 1923 Mad 851 (D).

It follows, therefore, that Section 48 of the Code as such does not apply to the execution of a village court decree. The Village Courts Act provides for execution of a village Court decree by two classes of courts, namely, a village court, and the court of the District Munsif to which it is transmitted or to which it is withdrawn.

It is conceded that Section 48 would not apply to on execution petition filed before a village court for execution of its decree. When such a decree is transferred to the Court of a District Munsif, 'of there a difference? Does the fact that petition for execution of decrees passed by the District Munsif are governed by Section 48, C. P. C. have the result of extending that provision to petitions for execution of village court's decrees transferred to the District Munsif's Court either under Section 66, or 67 of the Act? Mr. Gopalan Namhiar contended that it would and relied upon certain decisions to which we shall refer. In --"Lakshmindra Tirta Swamiar v. H. R. E. Board, Madras', AIR 1933 Mad 305 (E), the effect of Section 70, Madras Hindu Religious Endowments Act had to be considered. The material words of that section were :

"The Court shall, on the application of the President of the Board or Committee, recover the eraount as if a decree had been passed for the amount by the court against the religious endowment concerned."

If was held that the words "as if a decree had been passed" in the section attracted the whole procedure in execution and with it the right of appeal provided under Section 47 of the Code against an order passed by the civil Court in proceedings to recover die amount of contribution levied by the Board. No question arose in" that case as to the applicability of Section 48 of the Code. The decision is, therefore, not of any help in this case. In --"H. R. E. Board, Madras v. Sirhur Mutf, AIR 1935 Mad 217 (F), the same provision of the Madras Hindu Religious Endowments Act had to be considered. It was held that an application under that section for the recovery of the amount of contribution levied by the Board as governed by Article 182, Indian Limitation Act. Here again, the applicability of Section 48 of the Code did not fall to be considered. The learned Judges followed the decision of the Calcutta High Court in -- 'Chaitram Sagonnull v. Ilardwari Mull & Co.', AIR 1927 Cal 853 (G), which was also cited by Mr. Gopalan Nambiar.

It was there held by Rankin C. J. and Mitter J. that an application for execution of an award made under the Indian Arbitration Act which had been filed in a chartered High Court was- governed by Article 183, Indian Limitation Act. The relevant section was Section 15, India Arbitration Act of 1893, the terms of which were.

"An award or a submission on being filed in the court in accordance with the foregoing provisions, shall be enforceable as if it were a decree of the Court."

Here too, it was not necessary to deal- with Section 48 of the Code. By far the strongest reliance was placed by Mr. Gopalan Narnbiar on the decision of this court in -- 'Subbarao v. Calicut Co-operative Urban Bank Ltd., Calicut', AIR 1940 Mad 635 (H). There the Seamed Judges had to consider Rule 17(7)(c), Madras Co-operative Societies Act, 1912, which provided that on application to the the Civil Court having jurisdiction over the subject matter of the decision or award, the Court shall enforce the decision or award of the Registrar of Co-operative Societies as if it were a final decree of the court.

It was held that an application for the execution of such an award was governed by Article 182, Limitation Act. This decision is in line with the other decisions above referred to' and was not concerned with Section 48 of the Code. There are, however, certain ' observations of the learned Chief Justice regarding the applicability of Section 43 of the Code. The learned Chief Justice said:

"It is conceded by 'he learned advocate for the appellant, as it must be, that an award under the Co-operative Societies Act attracts all the provisions of the Civil Procedure Code in the matter of execution. If it attracts all the provisions of the Code with regard to execution it must in our opinion of necessity attract the provisions of the Limitation Act which apply to the execution of decrees. The award when it is filed has to be executed as a decree of the court and in effect it becomes a decree of the court.

As the provisions of the Code of Civil Procedure admittedly apply, the provisions of Section 48 of the Code must apply. Section 48 provides that a decree chall run for a period of 12 years, provided of course, that steps in execution are taken at intervals of not more than three years as required by Article 182, Limitation Act. If Section 48 applies it follows that the appropriate article is Article 182 and not Article 181. If Article 182 did not apply but Article 181 did, there would be a conflict as Article 181 fixes a period of three years and Section 48 a period of twelve years."

5. Before we deal with the above observations of the learned Chief Justice, we shall briefly deal with the decisions above mentioned. -There is one important point of distinction between those cases and the present case, in those cases, there was no question of a decree of a court capable of execution in that court being transferred to another court. Those cases related to the enforcement of the orders of special tribunals or administrative bodies or private awards. In AIR 1933 Mad 503 (E) and AIR 1935 Mad 217 (F;, the Civil Court was called upon to recover an amount levied by air administrative body like the Hindu Religious Endowments Board.

The Board itself could never recover the amount in execution. In AIR 1940 Mad 635 (H). the award of the Registrar of Co-operative Societies cannot be considered in law to be a decree of a Civil Court. In AIR 1927 Gal 853 (G), an award had to be enforced. It was filed in the High Court and had to be executed as a decree of that court.

A decree passed by the village court stands on quite a different footing from an order of the Endowments Board or an award of the Registrar of Co-operative Societies or an award under the Arbitration Act. It is a decree of a civil court, no doubt a special court with limited powers, but nevertheless a civil court. There are provisions in the Village Courts Act for execution of the decrees passed by a village court by that court itself. Indeed, there is a whole chapter relating to the execution by the village court itself.

In our opinion, therefore, the decisions above cited have no bearing on the question which we have to decide in this case, which relates to the transfer of a decree of one court to another court for execution. The above observations of the learned Chief Justice were really not necessary for a disposal of the case before the learned Judges, as is evident from the judgment of Venkataramaiia Rao J. in -- 'Subbarao v. Calicut Co-operative Urban Bank Ltd.', AIR 1939 Mad 304 (I), the Letters Patent Appeal against which was before the learned Judges.

The only question there was whether Article 181 applied or Article 182 applied. It is not necessary for this case to decide whether Section 48 of the Code would apply to in application for the enforcement of an award made under the Madras Co-operative Societies Act. When such a question arises, the above observations of the learned Chief Justice may have to be reconsidered.

6. There is clear authority in this court and in other courts for the position that when a decree passed by one court is transferred to another court for execution the law of limitation applicable to a petition for execution is the law applicable to a decree of the court which passed the- decree and not the law applicable to a decree passed by the transferee court. This principle was enunciated in an early case of the Calcutta High Court in -- 'Tincowrie Dawn v. Debendronath, 17 Cal 491 (J). In the words of Wilson J.:

"The law depends not on the character of the court which executes the decree, hut of the court which passed it, though the manner of execution is that of the court which executes the decree."

In -- 'Jogemaya Dassi v. Thackomoni Dassi', 24 Cal 473 (K), a decree was obtained in the court of a. Subordinate Judge and it was transferred to the High Court for execution, It was held following the ruling in 17 Cal 491 (J), that the period of limitation for the execution of such a decree would not be the period applicable to decrees of the High Court, but would be the period governing applications for execution of decrees passed by courts in the moffusil. As Trevelyan J. said,

"The law of limitation is not altered by the transfer of the proceedings in execution. The decree does not become a decree of the High Court, although it may have to be enforced in the same manner as decrees of the High Court . . The 'manner' of execution refers to the procedure under which the execution is to be had, and has no reference to the limitation. It simply applies the High Court machinery to the execution of the decree."

In -- 'Sri Krishna Das v. Alambu Animal', 36 Mad 108 (L), this principle was followed. It was there held by Sundara Aiyar and Ayling JJ. the although a decree may be transferred by the court which passed it, to another court, tot execution, the law of limitation applicable for its execution is that applicable to the decrees of the former court, i.e., of the court which passed them. The anomalous consequences of following a different rule was pointed out by the learned Judge.

There a decree of the Presidency Small Cause Court, Madras, was transferred for execution to the City Civil Court, Section 48 of the Code is not applicable to decrees of the Presidency Small Cause Court but it is to decrees of the City Civil Court.

It was held that an application for execution presented to the City Civil Court more than 12 years after the passing of the decree by the Small Cause Court was not barred by reason of Section 48. C. P. C. This decision was approved by a Fuji Bench of this court in -- 'Gopalaswami Mudaliar v. Thiagarajaswanii Devasthanam', (M). It was there expressly laid down that Section 48 was not applicable to a decree of the court of Small Games. The fact that the court to whim the decree has been transferred was a court, the decree of which would be governed by Section 48, C. P. C., would not make any difference.

We find the same principle followed in --'Ranganadhan v. Ponnacharamma', AIR 1942 Pit 128 (N). In our opinion, this principle would equally apply to this case. Under Section 20, Indian Limitation Act applies to proceedings in a village court. That would be the law of limitation applicable to village court decrees. The fact that a decree of a village court is transferred to a District Munsif's court for execution would not have the effect of making a different rule of limitation applicable. We hold therefore that Section 48, C. P. C-would not apply to the execution petition in this case.

7. The civil revision petition is dismissed. No costs.


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