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Palaniammal Vs. S. Periasamy and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1985)2MLJ156
AppellantPalaniammal
RespondentS. Periasamy and ors.
Cases ReferredUmayal Achi v. Ramanathan Chettiar
Excerpt:
- - the entry in the third column of article 182 of the limitation act, 1908 covered cases where there was no appeal from the original decree as well as where there was an appeal and there was a final decree or order in the appeal or the appeal was withdrawn or there was an application for review of judgment or where there has been an amendment of the decree. 394. 10. the position that where there has been an appeal against the decree, it is only the appellate decree which can be executed is thus well-settled. grant (1980)2mlj152 it was held that where an appeal is taken from a part of the decree alone, still the appellate decree would be the one in which the whole of the decree appealed against would clearly merge......a part of the decree alone, still the appellate decree would be the one in which the whole of the decree appealed against would clearly merge. this was a case where there was a preliminary decree in a partition suit made on 7th september, 1962. costs were awarded to the plaintiff by the decree. the plaintiff filed an appeal against the preliminary decree. it was dismissed on 14th october, 1970. the plaintiff then filed an execution petition for executing the decree for costs awarded in the preliminary decree. the defendant raised an objection that the, execution petition was barred by limitation since 12 years had expired from 7th september, 1962 which was the date of the preliminary decree. this contention having been accepted by the executing court, the plaintiff filed a revision.....
Judgment:
ORDER

M.N. Chandurkar, C.J.

1. The only question which has been argued and which arises in this revision petition is whether the Execution Petition filed on 11th July, 1983 by the decree-holder is barred by limitation.

2. A decree directing the defendant to put the plaintiff in possession of the suit property was passed in O.S.No. 155 of 1963 by the District Munsif's Court, Erode on 27th August, 1964. This decree was confirmed by the appellate Court when A.S.No.161 of 1965 filed by the defendant was dismissed on 21st December, 1967. S.A.No. 826 of 1969 filed by the defendant was also dismissed on 23rd December, 1971. A petition under Order 21, Rules 22 and 35, C.P.C for execution of the decree was filed on 11th July, 1983.

3. Before the executing Court, an objection was raised that the decree-holder was not entitled to execute the decree beyond the period of 12 years from the date of the decree, which according to the judgment-debtor should be taken as 27th August, 1964, which is the date on which the trial court passed the decree. This objection has been negatived by the executing court which directed the legal representatives of the original judgment-debtor to deliver possession of the property by 17th August, 1984.

4. Mr. Sivamani who appears on behalf of the petitioners in this revision petition has contended that the petition for execution must be held to be barred by limitation since it is filed beyond twelve years from the date of the decree of the trial court. He relied on the opening words of Column 3 of Article 136 of the Limitation Act, 1963. Article 136 of the Limitation Act reads as follows:

Description of application

Period of Limitation.

Time from which period beginsto run

(1)

(2)

(3)

136. For the execution of any decree (other than adecree granting a mandatory injunction) or order of any civil court.

Twelve years

When the decree of order becomes enforceable or wherethe decree or any subsequent order directs any payment of money or thedelivery of any property to be made at a certain date or at recurringperiods, when default in making the payment or delivery in respect of whichexecution is sought, takes place:

Provided that an application for the enforcement orexecution of a decree granting a perpetual injunction shall not be subject toany period of limitation.

5. Mr. Sivamani contends that the period of twelve years is required to be computed from the time 'when the decree or order becomes enforceable'. According to him, the decree of the trial Court become enforceable on 27th August, 1964 and, therefore, the petition for execution of the decree should have been within twelve years from that date. The present petition, according to the learned Counsel, having been filed beyond the period of twelve years from 27th August, 1964 was liable to be dismissed.

6. The learned Counsel has relied on some observations made in a Division Bench decision of this Court in Umayal Achi v. Ramanathan Chettiar : (1980)1MLJ24 . In paragraph 12 of that decision, the Division Bench has observed:.The time when a decree or judgment becomes enforceable is from the date when it is pronounced.

Having regard to this observation, according to the learned Counsel, the decree had become enforceable when the trial court pronounced the order on 27th August, 1984.

7. The limitation for execution of a decree under the Limitation Act, 1908 was provided by Article 182 and the period of limitation was prescribed in the case of the execution of a decree or order of any Civil Court not provided for by Article 183 or by Section 48, C.P.C. to be three years: or where a certified copy of the decree or order has been registered, six years. In the third column, the time from which the period begins to run was stated as follows:

1. The date of the decree or order, or

2. (Where there has been an appeal) the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal, or

3. (Where there has been a review of judgment) the date of the decision passed on the review, or

4. (Where the decree has been amended) the date of amendment) or

Article 182 of the Limitation Act, 1908 thus specifically provided that where there has been an appeal, the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal would be the date from which the period of three years would be counted. Section 48, C.P.Code contained a provision that where an application to execute a decree not being a decree granting an injunction has been made no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from (a) the date of the decree sought to be executed, or (b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree. We are concerned with Sub-section (2) of Section 48, C.P.C. Section 48, C.P.Code thus barred an application for execution of a decree after the expiration of twelve years from the date of the decree sought to be executed. When the Limitation Act, 1963 was enacted, Section 48, C.P.C. was repealed by Section 28 with effect from 1st January, 1964. The limitation for the execution of a decree (other than a decree granting a mandatory injunction) or order of any civil Court was provided for in Article 136 of the Limitation Act, 1963.

8. The question which arises is, what is the meaning to be given to the words 'when the decree or order becomes enforceable' when computing the period of twelve years if the period of twelve years is to be computed from the date of the decree of the trial court even though there is an appeal from the decree of the trial court and there is a further second appeal to the High Court against a decree of dismissal of the appeal. A reading of Article 136 shows that a period of twelve years which is originally provided for by Section 48 is now provided for by enacting Article 136. However, while under Section 48, C.P.C. this period of twelve years had to be computed from 'the date of the decree sought to be executed', the phraseology in Article 136 is slightly different. The words used are 'when the decree or order becomes enforceable' instead of 'the date of the decree sought to be executed'. It has to be remembered that when Section 48, C.P.C. referred to the date of the decree sought to be executed, these words were used in the context of the provision made in column 3 of Article 182 of the Limitation Act, 1908. The third column of Article 182 of the Limitation Act, 1908 while referring to the execution of a decree or order of any Civil Court not provided for by Article 183 or by Section 48, C.P.C. 1908 contemplated four different starting points of limitation of three years provided in Clause 2 of Article 182. The period of three years would be counted either from the date of the decree or order, or where there has been an appeal, the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal, or where there has been a review of judgment, the date of the decision passed on the review, or where the decree has been amended, the date of the mendment. The entry in the third column of Article 182 of the Limitation Act, 1908 covered cases where there was no appeal from the original decree as well as where there was an appeal and there was a final decree or order in the appeal or the appeal was withdrawn or there was an application for review of judgment or where there has been an amendment of the decree. What has now been done by Article 136 is that Section 48, C.P.C. having been repealed, the period of twelve years referred to in Section 48, C.P.C. has been brought in under Article 136 and instead of providing different points of time, the points of time covered by items 1 to 4 in Column 3 of Article 182 of the Limitation Act, 1908 have been compendiously described as 'when the decree or order becomes enforceable'. The words 'when the decree or order becomes enforceable', must, therefore, necessarily mean that in a case where the decree has been the subject-matter of appeal, whether first appeal or second appeal, then the decree becomes enforceable only when the appellate decree is made. Whenever there is an appeal against a decree of trial court, what is enforceable is not the decree of the trial Court but the decree of the appellate court, because the decree of the trial court gets merged with the decree of the appellate court even where the appeal is dismissed. This is the settled position of law which cannot be disputed.

9. In the decision in U.P.State v. Mohd. Nooh : [1958]1SCR595 the Supreme Court was dealing with the question whether the High Court could exercise its jurisdiction under Article 226 in respect of an order of dismissal of a Police Constable in a departmental proceeding which was made on 20th April, 1948 before the Constitution came into force but a revision application against the order of dismissal came to be decided on 22nd April, 1950 and it was contended on behalf of the delinquent that as the order was passed after the date of the commencement of the Constitution, its validity can be called in question in an application under Article 226. The Supreme Court in paragraph 13 of the said decision observed as follows:

As we have already observed an order of dismissal passed on a departmental enquiry by an officer in the department and an order passed by another officer next higher in rank dismissing an appeal therefrom and an order rejecting an application for revision by the head of the department can hardly be equated with any propriety with decrees made in a civil suit under the Code of Civil Procedure by the Court of first instance and the decree dismissing the appeal therefrom by an appeal Court and the order dismissing the revision petition by a even higher court, as has been sought to be done by this High Court in this case, because the departmental tribunals of the first instance or on appeal or revision are not regular courts manner by persons trained In law although they may have the trappings of the courts of law. In the next place, while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely for the purposes of computing the period of limitation for the execution of the decree as in Batuk Nath v. Munui Dai (1914) 41 Ind.App.104 : A.I.R.1914 P.C.65 : (1914) 1 L.W.729 : (1914) 27 M.L.J.1, or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain v. Gendan Singh (1926) 53 I.A.197 : (1926) 51 M.L.J.781 : A.I.R.1926 P.C.93 : (1926) 24 L.W.394.

10. The position that where there has been an appeal against the decree, it is only the appellate decree which can be executed is thus well-settled.

11. In Krishna Chariar v. Mangammal I.L.R.(1903) Mad.91 a Full Bench of this Court has taken the view that under Article 179 of Schl.II to the Limitation Act, 1877 even where only a portion of the decree has been appealed against and a portion has not been the period of Limitation for an application to execute the portion not appealed against runs from the date of the decree on appeal.

12. A Division Bench of this Court in Nacharammal v. Veerappa : AIR1945Mad485 had held that where an appellate Court passes a decree it takes the place of the decree of the trial court, and it is the decree of the appellate court only which becomes capable of execution and consequently the period of twelve years under Section 48 commences from the date of such appellate decree and not from the date of the decree of the trial Court. The same view is taken in Kun jammal v. Krishna : AIR1954Mad170 in which the Division Bench has held that where there has been an appeal from the original decree the period of 12 years under Section 48 would run from the date , of the appellate decree even though the appeal was in respect of a portion of the subjectmatter of the suit and the decree was sought to be executed against persons who were not parties to the appeal.

13. In S.K. Yesudasan v. A. Grant : (1980)2MLJ152 it was held that where an appeal is taken from a part of the decree alone, still the appellate decree would be the one in which the whole of the decree appealed against would clearly merge. This was a case where there was a preliminary decree in a partition suit made on 7th September, 1962. Costs were awarded to the plaintiff by the decree. The plaintiff filed an appeal against the preliminary decree. It was dismissed on 14th October, 1970. The plaintiff then filed an execution petition for executing the decree for costs awarded in the preliminary decree. The defendant raised an objection that the, execution petition was barred by limitation since 12 years had expired from 7th September, 1962 which was the date of the preliminary decree. This contention having been accepted by the executing court, the plaintiff filed a revision petition. Balasubrahmanyam, J. took the view following Kunnammal's Case : AIR1954Mad170 Cited supra that it was only the appellate decree that was capable of execution and the period of limitation for execution would run from the date of the decree of the appellate court.

14. The Calcutta and Andhra Pradesh High Courts have also taken the view that for the purpose of computation of 12 years under Article 136, the limitation must be held to commence from the date of the appellate decree. In S.P. Choudhury v. S.C & Co. : AIR1976Cal122 a decree for costs passed by the trial Court on 1st May, 1959 was affirmed by the appellate court with some modification on 7th June, 1962. An application for execution of the decree for costs of the appellate court was, filed on 2nd May, 1972. It was held that the decree of the trial court, dated 1st May, 1959 had merged in the decree of the appeal court, dated 7th June, 1962 and the starting point of limitation for application for execution of the decree for costs is the date of the appeal court decree and not the date of the trial court decree, it was held that it was that decree of the Appellate Court , alone which can be executed and that decree cannot be said to have become enforceable at any time prior to 7th July, 1962 i.e. the date on which it was passed.

15. In P. Ramachadriah v. D. Seshamma : AIR1978AP342 a Division Bench of the Andhra Pradesh High Court has taken the view that Article 136 substantially reproduces the repealed Section 48, C.P.C. and replaces Article 182 of the old Limitation Act, and Article 13.6 must be interpreted in the light of the repealed Section 48, C.P.C The Division Bench took the veiw that the meaning of the words 'from the date of the decree sought to be executed' in Section 48, C.P.C. and the words 'where the decree or order becomes enforceable' in Article 136 is practically the same. In paragraph 10 the Division Bench observed as follows:.When the Legislature enacted Article 136 by omitting Section 48, C.P.C. and reproducing it in Article 136, we have to take it that they must have been aware of the interpretation of Section 48 by the Courts and approved of it. Consequently, we hold that under Article 136 of the present Limitation Act, the period of limitation can be reckoned from the date of the appellate decree even though there was no stay in the appeal. If there is an appeal, the decree that can be enforced is that of the appellate Court, and the period of Limitation has to be reckoned from the date of that decree....

16. The observations relied upon by Mr. Sivamani from the decision in Umayal Achi v. Ramanathan Chettiar : (1980)1MLJ24 cannot be read as meaning that even in a case where there is an appeal against the decree of the trial Court, the limitation would commence from the date of the decree of the trial court. The observations in paragraph 12 of the said decision that 'the time when a decree or judgment becomes enforceable is from the date when it is pronounced' will be equally applicable to a decree in appeal. The established position that when there is an appeal and the appellate decree supersedes the decree of the trial court, then it is only the appellate decree which can be executed, cannot be said to have been disturbed in any way by the enactment of Article 136 of the Limitation Act. The words 'when the decree or order becomes enforceable' must be read in the context of the decree which has to be enforced. If the appellate decree alone has to be enforced and executed, then the computation of the period of twelve years must be from the date on which the appellate decree is made in case where the is in appeal against the decree of the trial Court or there is a further appeal against the decree of the appellate Court.

17. There is thus no substance in the argument of Mr. Sivamani that the petition for execution of the decree must be held to be barred by time.

18. Accordingly, the revision petition is dismissed. No order as to costs.


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