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Dakshinamurthy Pillai Vs. Vedamurthy Mudaliar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1927Mad842
AppellantDakshinamurthy Pillai
RespondentVedamurthy Mudaliar and ors.
Cases ReferredKhulna Loan Company v. Jnanendra Nath Bose
Excerpt:
- .....to agree.10. the decree was passed on 11th december 1907 and in the decree it was stated that mesne profits were to be ascertained in execution. the first appeal against that decision was disposed of by this court on 23rd march 1911, and it did not interfere with the order regarding the ascertainment of mesne profits. in 1917 an execution petition for the ascertainment of mesne profits was put in and an order thereon was passed on 14th november 1917. on 4th april 1924 an execution petition, no. 150 of 1924, the last of a series of execution petitions, was put in for the recovery of the amount of mesne profits ascertained. this execution petition is obviously more than 12 years after the passing of the high court decree, and under section 48, civil p. c., it would prima facie be out.....
Judgment:
JUDGEMENT

1. Since the appellant was a party to the decree under execution and the matter relates to the execution, discharge or satisfaction of the decree, the case is one under Section 47, Civil P. C., and an appeal lies: see Meyyappa Chetty v. Chidambaram Chetty Rukmani Ammal v. Narasimha Ayyar A. I. R. 1921 Mad. 612 Abdul Kasim v. Thambuswami Pillai [1917] 5 L. W. 701 In this view it is open to a party to the decree to raise the question of limitation and the lower Court was not justified in refusing to allow that point to be raised.

2. We remand the case for a finding on the issue, whether E. P. No. 150 of 1924, (4th April 1924) is within time.

3. Fresh evidence may be adduced on both sides.

4. Finding should be submitted within six weeks, and ten days will be allowed for filing objections.

5. Note.--The case on the merits has been argued but not decided by us.

6. [In compliance with the order contained in the above judgment, the Subordinate Judge of Trichinopoly submitted the following]

Finding.

7. The issue sent down for finding is:

Whether E. P. No. 159 of 1924, dated 4th April 1924, is within time.

8. I hold that E. P. No. 150 of 1924 was within time and submit a finding accordingly.

Judgment.

9. The first point for decision in this appeal is whether E. P. No. 150 of 1924 is barred by the 12 years rule under Section 48, Civil P. C. We remanded the case to the lower Court for a finding, and the lower Court has returned a finding that it is not barred. We are not able, on the state of the law as it stands at present, to agree.

10. The decree was passed on 11th December 1907 and in the decree it was stated that mesne profits were to be ascertained in execution. The first appeal against that decision was disposed of by this Court on 23rd March 1911, and it did not interfere with the order regarding the ascertainment of mesne profits. In 1917 an execution petition for the ascertainment of mesne profits was put in and an order thereon was passed on 14th November 1917. On 4th April 1924 an execution petition, No. 150 of 1924, the last of a series of execution petitions, was put in for the recovery of the amount of mesne profits ascertained. This execution petition is obviously more than 12 years after the passing of the High Court decree, and under Section 48, Civil P. C., it would prima facie be out of time. Two arguments, however, were put before us to show that it was not out of time: (1) that 'the date of the decree 'really means the date when the decree becomes executable, and it is argued that in the present case that would be 12 years from the date of ascertainment of the mesne profits, 12 years from 1917, and for this position 40 Mad. 989 is relied upon. The second argument is that the order ascertaining the mesne profits is a 'subsequent order' within the meaning of Section 48 (1) (b), an order for the payment of money. We think the latter contention cannot stand against the Full Bench decision in Aiyasamier v. Venkatachala Mudali [1917] 40 Mad. 989. It is perhaps possible to say that an order for mesne profits is an order for payment of money, but it is not an order for the payment of money on a certain date according to the interpretation of that phrase by that Full Bench decision. Certain obiter dicta by Devadoss and Waller, JJ., in Swaminatha Odayar v. Thiagarajaswami Odayar A. I. R. 1926 Mad. 954 and by Phillips, J., in Shujaul-mulk Bahadur v. Umir-ul-umra Bahadur A. I. R. 1926 Mad. 20 would seem to indicate that such an order might be treated as an order for the payment of money at a certain date within the purview of Section 48 (1) (b), but we think that the Full Bench decision must govern this point. As to the first point: the contention seems to us reasonable and has been in fact laid down in general terms by the Privy Council in a ruling in Rameshwar Singh v. Homeshwar Singh A. I. R. 1921 P. C. 31 But there is another Privy Council case, Khulna Loan Company v. Jnanendra Nath Bose [1918] 22 C. w. N. 145 which stands directly in the way. That judgment, although brief, adopts the arguments of the High Court of Calcutta which lay down very definitely that Section 48 means that no execution petition can be put in after 12 years of the date of the decree, the date being the date prescribed under Rule 7, Order 20. We feel that it is a reasonable view that the 12 years should run from the time when the relief asked for was ascertained and decided, which is the view contained in the Privy Council in 40 M. L. J. But that was a case under Art. 182 Indian Limitation Act, while the Cal. W. N. case is directly on Section 48, Civil P. C., which we now have to interpret. The only ground for differentiation between the C. W. N. case and the present is that the former was a mortgage decree in which the sum to be recovered was definitely ascertained when the decree was passed and the decree so far as it related to the recovery of money was immediately executable, whereas in the present case, as the decree did not ascertain the amount of mesne profits, it was not immediately executable for money. But this style of argument was advanced before the Calcutta High Court in the C. W. N. case and was not accepted by it or their lordships of the Privy Council. We must, constrained by the ruling of the Privy Council, hold that E. P. No. 150 of 1924 is barred by time. We have been asked to refer the case to a Full Bench, in view of the general importance of the question raised, but, as the Privy Council ruling must, until it is altered, govern the law in this country, and as the question is only acute in cases where the original decree was passed under the old Civil Procedure Code, since now the amount of mesne profits is ascertained in the suit and embodied in a final decree, we decline to refer the matter as suggested.

11. An argument on the footing of res judicata was advanced by the respondent that since, in a prior E. P. No. 139 of 1923 dated 18th July 1923 which was also put in more than 12 years from the date of the High Court decree, no objection on the ground of limitation had been taken by appellant, he was barred by res judicata from pleading that bar to any subsequent E. P. We are unable to follow this argument. All that was implicitly decided on E. P. No. 139 of 1923 was that that petition was not barred by the 12 years rule. That decision cannot for ever remove the operation of Section 48, Civil P. C., out of the way of all future E. P's. There is no substance in this contention.

12. It is unnecessary to go into the merits of the E. P. We hold that it is barred by Section 48, Civil P. C. We must allow the appeal, and dismiss E. P. No. 150 of 1924 with costs to appellant in both Courts.

13. No order is necessary on the connected civil revision petition,


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