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K. Nagalinga Chetty Vs. O.K. Srinivasa Aiyangar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1941Mad477; (1941)1MLJ365
AppellantK. Nagalinga Chetty
RespondentO.K. Srinivasa Aiyangar and anr.
Cases ReferredRamachandra Rao v. Parasuramayya
Excerpt:
.....clearly that article 182 of the limitation act leaves the provision in section 48 of the code of civil procedure untouched and that there can be no execution of a decree governed by section 48 when twelve years have passed from the date of the decree, amendment or no amendment. , that the effect of the law as laid down by the full bench might in exceptional cases render the amendment of a decree futile and barren. it may well be that owing to the delay in the hearing of civil revision petitions very many valuable years may be lost to a decree-holder in which he might execute his decree but it seems to me that it would be straining the very clear wording of section 48 of the code of civil procedure and to hold contrary to the express decision of the full bench to which i have referred..........c. no. 7395 of 1925. the question is whether the execution is barred by section 48 of the code of civil procedure. the decree in the small cause suit was passed on the 2nd february, 1926. the execution petition was filed on 27th october, 1938. it was a fresh application for execution. prima facie section 48 prevents the court from passing any orders for execution on such application. the decree-holder's plea was that he was entitled to execute because subsequent to the decree passed by the court of small causes he had filed a new trial application in 1926 and that when that failed he had filed a revision petition in the high court (c.r.p. no. 127 of 1927). that revision petition was dismissed with costs on 7th march, 1928 and the decree-holder contended that the period of twelve years.....
Judgment:

Burn, J.

1. This is an appeal from an order of the learned Principal Judge of the City Civil Court in E. P. No. 759 of 1938 in M. S. C. No. 7395 of 1925. The question is whether the execution is barred by Section 48 of the Code of Civil Procedure. The decree in the small cause suit was passed on the 2nd February, 1926. The execution petition was filed on 27th October, 1938. It was a fresh application for execution. Prima facie Section 48 prevents the Court from passing any orders for execution on such application. The decree-holder's plea was that he was entitled to execute because subsequent to the decree passed by the Court of Small Causes he had filed a new trial application in 1926 and that when that failed he had filed a revision petition in the High Court (C.R.P. No. 127 of 1927). That revision petition was dismissed with costs on 7th March, 1928 and the decree-holder contended that the period of twelve years indicated in Section 48 should be calculated from 7th March, 1928. In that case the application would of course be well within twelve years. The learned Principal Judge of the City Civil Court had decided in favour of the decree-holder. Considering what he calls an analogous provision in Article 182 of the Limitation Act he has found that for the purpose of that article the date of the decision of a revision petition against a decree of a Small Cause Court is to be taken into account and not the date of the decree of the Small Cause Court. He has referred to the decision of the Privy Council in Nagendra De v. Sureschandra De (1932) 63 M.L.J. 329 : L.R. 59 IndAp 283 : I.L.R. 60 Cal. 1 . In that case their Lordships pointed out that there was no definition of the word 'appeal' in the Code of Civil Procedure and that for the purpose of Article 182 any application by a party to an appellate Court asking it to set aside or revise the decision of a Subordinate Court would be an appeal within the ordinary meaning of the word. The learned Judge of the Court below, therefore, considered that the 'reasons for which an appeal was held to include a revision petition in connection with Article 182 would apply with equal force to enable a revision petition to give a fresh starting point under Section 48, Civil Procedure Code.' But curiously enough after coming to this conclusion the learned Judge goes on to say:

So that in computing the period of twelve years, the time taken in the revision petition will have to be deducted.

2. This looks as though he were applying the principle of Section 15 of the Limitation Act. But that was not a contention that was ever raised before him nor was it a contention which he appeared to be considering. The only point in dispute before him was whether the period of twelve years ought to begin on the 2nd February, 1926 or on the 7th March, 1928. The time taken for the prosecution of the civil revision petition was quite irrelevant to this question.

3. Learned Counsel for the appellant (judgment-debtor) has pointed out that the terms of Section 48 are very different from the terms of Article 182 and that Article 182 of the Limitation Act only applies to cases which do not fall within Section 48. Where an application has been made to the High Court for revision of a decree of a Small Cause Court the period of three years prescribed in Article 182 of the Limitation Act begins to run from the date of the High Court's order on the revision petition, whether the decree of the Small Cause Court is confirmed, modified or reversed (vide Chidambara Nadar v. Rama Nadar : AIR1937Mad385 . That decision, however, does not deal with Section 48 of the Code of Civil Procedure. Now Section 48 says that:

Where an application to execute a decree not being a decree granting an injuncton 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 the date of the decree sought to be executed.

4. Mr. Ramaswami Aiyar's contention for the appellant is that the decree which the decree-holder is here seeking to execute is the decree of the Small Cause Court, the date of the decree is 2nd February, 1926 and the fact that a revision petition was presented in the High Court which was dismissed does not alter the date of the decree of the Small Cause Court. It has recently been held by a Full Bench of this Court (vide Ramachandra Rao v. Parasuramayya : AIR1940Mad127 ), that if a decree is amended under Section 152 of the Code of Civil Procedure in order to bring it into accordance with the judgment, the period of twelve years under Section 48 6 the Code of Civil Procedure still runs from the date of the decree and not from the date of the amendment. Stress is laid upon the wording of Section 48 and it is emphasised that the date to be taken into account is the date of the decree which is being executed. This contention we think must be accepted. There is no analogy between Article 182 of the Limitation Act and Section 48 of the Code of Civil Procedure, because Article 182 expressly states that all applications that fall under Section 48 of the Code of Civil Procedure are excluded from its operation. The decision of the Principal Judge of the City Civil Court cannot therefore be upheld. In so far as the execution of the Small Cause Court's decree is concerned, this application E. P. No. 759 of 1938 was barred by Section 48 of the Code of Civil Procedure.

5. It has not, however, been apparently noticed until now that the decree-holder was claiming not only the amount of the decree of the Small Cause Court with interest and costs but also the amount of costs awarded to him by this Court in C. R. P. No. 127 of 1927 with interest on that amount. The decree of the High Court awarding him costs having been passed on the 7th March 1928, the application presented on the 27th October, 1938, is in time so far as that amount is concerned. The execution petition will therefore be returned to the City Civil Court to be dealt with in accordance with law in the light of this judgment. The appellant will recover his costs of this appeal from the respondents.

Mockett, J.

6. I agree. It seems to me that finality is given to the argument which the respondents have put forward in this case by the decision of a Full Bench of this Court in Ramachandra Rao v. Parasuramayya : AIR1940Mad127 . The learned Chief Justice in giving the judgment of the Court states quite clearly that Article 182 of the Limitation Act leaves the provision in Section 48 of the Code of Civil Procedure untouched and that there can be no execution of a decree governed by Section 48 when twelve years have passed from the date of the decree, amendment or no amendment. In that case the Court was concerned with an amendment of a decree and it was pointed out by Krishna-swami Aiyangar, J., that the effect of the law as laid down by the Full Bench might in exceptional cases render the amendment of a decree futile and barren. But as the learned Judge points out, that is an anomaly and any remedy for it was in the hands of the legislature. I think that applies to this case. It may well be that owing to the delay in the hearing of civil revision petitions very many valuable years may be lost to a decree-holder in which he might execute his decree but it seems to me that it would be straining the very clear wording of Section 48 of the Code of Civil Procedure and to hold contrary to the express decision of the Full Bench to which I have referred if we uphold the view which has been taken by the City Civil Judge. In this case it is interesting to note that the decision of the Full Bench in Chidambara Nadar v. Rama Nadar : AIR1937Mad385 , which held that Article 182 (2) of, the Limitation Act applied to civil revision petitions as well as to orders in appeal was not even referred to by any of the learned Counsel who argued the case in Ramachandra Rao v. Parasuramayya : AIR1940Mad127 . I agree with the order proposed by my learned brother.


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