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M. R. Venkatarama Ayyar and anr. Vs. South Indian Bank of Tinnevelley and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1927Mad927a
AppellantM. R. Venkatarama Ayyar and anr.
RespondentSouth Indian Bank of Tinnevelley and ors.
Cases ReferredRaj Raghubar Singh v. Jai Indar Bahadur Singh A. I. R.
Excerpt:
.....9 months and 28 days. so that he is on this calculation clearly out of time. i fail to follow the subordinate judge's remark that 'interest always follows the principal,'but here there was no prohibition on the appellant applying for his interest. it, therefore, appears to me that the application must fail on the point of limitation. a further injunction was granted by the sub-court which now decreed the suit but this was reversed in appeal and the suit finally dismissed on 28th october 1919. yet another temporary injunction was passed upon an application for leave to appeal to the privy council, and this was dissolved on 1st october 1920. the appellant's contention is that the original order remained in force, so far at least as his claim to the present interest is concerned, until the..........under the items of the previous injunction order, had become payable as soon as the subordinate judge dismissed the suit. the learned subordinate judge in the order now under appeal, considers that the injunctions applied also to the interest, but this is clearly not the case. it may be that had the appellant attempted to enforce the payment of interest under the first injunction order, the court would have found reasons for refusing the prayer, but none of the subsequent injunction order per se barred the claim. thus time must be taken to have run up to 19th october 1916 when the subordinate judge's decree dismissing the suit was set aside. thereafter and until the suit was a second time dismissed on 28th october 1919, no doubt no application would have lain. time ran again from 28th.....
Judgment:

Odgers, J.

1. This is an appeal against the judgment of the Subordinate Judge of Negapatam dismissing petitioner's (appellants) application for execution in respect of certain interest. The question arose under the following circumstances: The petitioner apparently obtained a decree in O. S. 26 of 1910 against one Nataraja Ayyar, and an order for the payment of Rs. 20,000, odd in rateable distribution. Subsequently the respondents filed O. S. 22 of 1913 calling in question the validity of petitioner's decree and for an injunction to prevent petitioner from drawing, the Rs. 20,000. They also applied for and obtained an interim injunction from the subordinate judge. Petitioner appealed to this Court and on 16th January 1914 the Court made the following order Ex. A (p. 2). The respondent's suit, No. 22 of 1913, was dismissed by the Subordinate Judge on 22nd December 1915, and on appeal the High Court ordered a new trial on 19th October 1916. Previously on 28th January 1916, the respondents again applied to restrain petitioner (appellant) from drawing the money, and this Court granted the same on condition that the respondents paid 9 per cent interest to the petitioner from 22nd December 1915, the date of the dismissal of their suit by the subordinate judge. On 18th September 1917 the subordinate judge ordered the sum to be transferred to the Urban Bank, the petitioner being still restrained from drawing it. On 28th October 1919 the High Court finally dismissed the respondent's suit. On 1st October 1920 the injunction was dissolved on an appeal to the Privy Council being abandoned.

2. On the petitioner applying for execution including the amount of 9 percent. interest mentioned in Ex. A (above) the subordinate judge ordered the petitioner to amend the amount and apply afresh. 'This petition closed,' which I take to mean dismissed. The subordinate judge held that the order Ex. A was non-executable, but there was no limitation and disallowed the petition. Hence this appeal.

3. The first point argued is that the order Ex. A is executable. The only contesting respondents in the Sub-Court and here are the first and sixth, the South Indian Bank and the Bank of Madras (now the Imperial Bank of India). They were not parties to Ex. C. The subordinate judge held that it was only an undertaking. We have been referred to several cases. In Sankunni Variar v. Vassudevan Nambudripad A. I. R. 1926 Mad. 1005 Phillips, J. said:

4. It has always seemed to me anomaolous that when the Court has granted indulgence to the judgment-debtor upon terms, that Court should not be able to enforce those terms without recourse to a separate suit. In Sadasiva Pillai v. Ramalinga Pillai 2 I. A. 219 where the defendant pending his appeal executed security bonds to the Court undertaking to account for mesne profits subsequently to the date of suit, the Privy Council held that this obligation made the accounting a question relating to the execution of the decree within what is now Section 47 Civil P. C. In the bond executed to the lower Court the respondent agreed to pay the subsequent mesne profits when the original decree comes to be executed, and on failure agreed that his property might be proceeded against. In Balakrishna Chetti v. Krishnamurti Iyer A. I. R. 1927 Mad. 416 (a decision of ourselves) the important words in the decree were: This Court doth order and direct that defendant 1 shall be liable to make good, etc. The essential words in both these cases appear to me to be stronger and more conclusive than the opening words in Ex. A. and the order was no doubt merely copied down from the note of the judge when he heard the application. But the meaning no doubt is that the plaintiffs-respondents (there), bound themselves to pay 9 per cent. interest and were willing to have that undertaking made an order of Court.

5. I am therefore inclined to give a liberal construction to the words 'By consent of parties the plaintiffs-respondents undertake' and to hold that this is an executable order. The next point somewhat faintly argued is that the undertaking to pay 9 per cent. interest extended up to the final dismissal of the suit. The words are' till the disposal of O. S. 22 of 1913 on the file of the Subordinate Judge of Negapatam in the event of the said suit being dismissed. I think the words in themselves are clear namely, that the undertaking was only till the disposal by the Subordinate Judge and the subsequent conduct of the petitioner-appellant confirms this view. In 1916, when the appeal was in the High Court, he submitted to fix 3 percent interest and in 1917 he submitted to the transfer of the principal to the Urban Bank as it would give him a larger rate of interest than the (then) Bank of Madras. It appears that petitioner has all along been drawing the bank interest on the principal. He is therefore clearly only entitled if at all to nine per cent. from 17th January 1914 to the dismissal of the suit by the Subordinate Judge on 22nd December 1915, nearly two years.

6. The next question is that of limitation. The appellant clearly had in the first instance from 22nd December 1915 to 19th October 1916 (at least) the date when the High Court or lered a retrial to execute, that is 9 months and 28 days. Assuming in his favour that he may exclude the period from 19th October 1916 to 28th October 1919 when the 'High Court finally dismissed the respondent's suit, time ran from the latter date 23rd February 1922 the date of this execution application; a period of 2 years 4 months and 25 days added to the previous period we get 3 years and 2 months 23 days; so that he is on this calculation clearly out of time. It is extremely doubtful whether having regard to Section 9, Limitation Act, any deduction ought to be made in favour of the appellant. The contention for him is that as he has been almost continuously enjoined from drawing the principal (Exs. A, C and E.) he must be taken to have been likewise debarred from executing for the interest till 1920 when the injunction was finally dissolved. This appears to be a fallacy; there was never any injunction as to the interest which would bring the case under Section 15, Limitation Act, and none of these orders refer to interest at all. I fail to follow the Subordinate Judge's remark that 'interest always follows the principal,' but here there was no prohibition on the appellant applying for his interest. The cases relied on Qamaruddin v. Jawahir Lal [1905] 27 All. 334 and Suppa Reddiar v. Avudai Ammal [1905] 28 Mad. 50 do not appear to touch the present facts. In the former, the Privy Council held that the application in question was to revive and carry on a previous suspended application. In the latter case the Court held that the application of 1932 was really an application to revive or continue an application for execution which had been wrongly dismissed. It is not contended here that Art. 178 applies, and there is no question of reviving a previous or suspended execution application. It, therefore, appears to me that the application must fail on the point of limitation. He may be entitled to execute for his interest at 6 per cent under Ex. C. But the banks were not parties to that order. There is no reason why the petitioner-appellant should not be allowed to amend his execution application if so advised. The learned Subordinate Judge's order is therefore right as regards present respondents though not on the grounds given by him. His order will be modified by allowing appellant to amend his petition and the Subordinate Judge is ordered to restore his execution application to file. The appeal against order must be dismissed with costs of the respondents (one set).

Curgenven, J.

7. In this case we have to decide what is the meaning of the order of this Court dated 16th January 1921 in C. M. A. 197 of 1913, and whether it is executable. The latter question divides into two others-whether execution is now barred by limitation. But if execution be found barred it will be unnecessary, so far as the disposal of this appeal is concerned, to investigate the general question of executability. During the pendency of a suit (O. S. 22 of 1913) to set aside the decree in O. S. 26 of 1910 as fraudulent and collusive, an injunction was made preventing the decree-holder in the latter suit, now the appellant, from drawing out a sum of Rs. 20,000 (twenty thousand) then in deposit. There was an appeal to this Court against the injunction and the order now under reference was passed by consent of parties. It dismissed the appeal with costs in consideration of the respondents undertaking to pay interest at 9 per cent per annum upon the sum in question from that date

till the disposal of O. S. 22 of 1913 on the file of the Court of the Subordinate Judge of Negapatam; in the event of the said suit being dismissed the money was to be placed in fixed deposit with the Bank of Madras and it was added 'the interest accruing thereon will be credited' to the plaintiffs on the disposal of the suit

8. The suit was dismissed by the Subordinate Judge on 22nd December 1915. The respondents appealed to the High Court which, on 28th January 1916 laid another injunction against the withdrawal of the money, on condition that interest at 6 per cent was paid from the date the suit was dismissed, The result of the appeal was that the decree was set aside and the suit remanded. A further injunction was granted by the Sub-Court which now decreed the suit but this was reversed in appeal and the suit finally dismissed on 28th October 1919. Yet another temporary injunction was passed upon an application for leave to appeal to the Privy Council, and this was dissolved on 1st October 1920. The appellant's contention is that the original order remained in force, so far at least as his claim to the present interest is concerned, until the suit was finally dismissed by the High Court on 28th October 1919. I think this is clearly an untenable position. It may be that, looking only at the words, 'in the event of the said suit being dismissed' it would be possible to contend that the dismissal should be taken to be that by the High Court on 28th October 1919 and not that by the Sub-Court on 22nd December 1915. Bat the only meaning that the order can bear is that interest was to run so long as the injunction remained in force, and no longer. With the dismissal of the suit by the Subordinate Judge the injunction terminated.From that day until the next injunction was passed it was open to the appellant in theory at least to draw the money and the interest. The next injunction dated from 28th January 1916 allowed a different rate of interest and between the expiry of the one and the commencement of the other no interest was payable by the respondents at all. The learned vakil for the appellant sought to resist these clearly irresistible conclusions by reference to the Privy Council case Raj Raghubar Singh v. Jai Indar Bahadur Singh A. I. R. 1919 P. C. 55 But there the obligation was held to run up to the date of the later decree upon a construction of the terms of the agreement and it will further be seen that the consideration in respect of which the obligation was incurred, i. e., possession by the decree-holder existed throughout the proceedings, whereas here as I have pointed out, the consideration, i. e., the injunction did not last beyond the first decree. If, therefore, the order can be executed, interest at 9 per cent can only be recovered under it from 16th January 1914 to 22nd December 1915.

9. Assuming that it is executable, was the appellant within his three years in applying on 23nd March 1922? Time began to run against him from 22nd December 1915. The next injunction was imposed on 28th January 1916, but the fact that it came into force did not deprive him of his right to apply for and obtain the interest which, under the items of the previous injunction order, had become payable as soon as the Subordinate Judge dismissed the suit. The learned Subordinate Judge in the order now under appeal, considers that the injunctions applied also to the interest, but this is clearly not the case. It may be that had the appellant attempted to enforce the payment of interest under the first injunction order, the Court would have found reasons for refusing the prayer, but none of the subsequent injunction order per se barred the claim. Thus time must be taken to have run up to 19th October 1916 when the Subordinate Judge's decree dismissing the suit was set aside. Thereafter and until the suit was a second time dismissed on 28th October 1919, no doubt no application would have lain. Time ran again from 28th October 1919, and not interrupted by the circumstance that further injunction was passed in the application for leave to appeal to the Privy Council. Excluding the period 19th October 1916 to 28th October 1919 interval between the date when the interest first became payable and the date of application for payment exceeds three years (3 years 2 months and 23 days) so that even on this method of computation the application was out of time. But, further, I do not think that the appellant can escape the application of Section 9, Limitation Act, to the facts of this case, so that the three years period available to him ran continuously from 22nd December 1915 and he was out of time by more than three years. Thus upon either view the application assuming it to lie is barred

10. I agree with my learned brother that the learned Subordinate Judge need not have required the appellant to file a fresh petition in order to secure execution of the order relating to interest contained in Ex. C since a prayer to that effect was included in his original application and that the lower Court be accordingly directed to restore the application to file, allow the appellant to amend it, and dispose of it accordingly. I agree with the order as to costs.


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