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Madurambal Ammal and ors. Vs. T. Narasinga Rajan - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1980)2MLJ563
AppellantMadurambal Ammal and ors.
RespondentT. Narasinga Rajan
Cases Referred and Sethurayar v. Karuppayammal
Excerpt:
- - ramaswami madaliar (1975)1mlj1 ,section 5 of the limitation act clearly applies and, therefore, the learned district munsif was wrong in dismissing the application holding that section 5 did not apply. of course, there is another aspect regarding the question whether section 5 is applicable or not and that is, whether the proceedings are before a court or are only before a statutory body, section 5 specifically says that only a court, if satisfied that the applicant had sufficient! if so, i am clearly of the view that section 5 of the limitation act, has no application......the executing court for stay of execution. it is the proviso to section 20 that speaks of the 60 days period within which an application under section 19 has to be made. the contention on behalf of the decree-holder is that the period of 60 days mentioned in the proviso to section 20 of the act is not a period of limitation but what is stated in the said proviso is a condition precedent. it is pointed out that under the said proviso, it is not stated that once stay has been obtained, the judgment debtor will have a period of 60 days for fling an application under section 19 for scaling down but it is stated that if after obtaining the stay, the judgment-debtor does not file an application under section 19 within sixty days or where an application has been made and the same is rejected,.....
Judgment:
ORDER

M.M. Ismail, C.J.

1. This is a petition to revise the order of the learned District Munsif, Sholinghur, dated 21st September, 1974 in I. A No. 324 of 1974 in O.S. No. 381 of 1971. The petitioners herein were the judgment-debtors in O.S. No. 381 of 1971. The execution proceedings were stayed on 26th July, 1973 under Section 20 of Tamil Nadu Act V of 1938, read with Tamil Nadu Act VIII of 1973. The proviso to Section 20 states:

Provided that where within sixty days after the application for stay has been granted the judgment-debtor does not apply to the Court which passed the decree for relief under Section 19 or where an application has been so made and is rejected, the decree shall be executed as it stands, not withstanding anything contained in this Act to the contrary.

On the basis of this proviso, the petition to amend the decree under Section 19 of the said Act should have been filed on or before 24th September, 1973. However, the petitioners filed the petition under Section 19 of the said Act only on 25th September, 1973 with I.A. No. 324 of 1974 purporting to have been filed under Section 5 of the Limitation Act, for excusing the delay of one day in filing the petition under Section 19. The case of the petitioners was that the counsel made a bona fide mistake in thinking that the period was not 60 days but two months and that was the reason why the petition was not filed on or before 24th September, 1973. It is in view of this only the petitioners filed the petition under Section 5 of the Limitation Act. The learned District Munsif held that Section 5 of the Limitation Act. could not be invoked by the petitioners herein and he, therefore, dismissed the interlocutory application. Hence, the present civil revision petition.

2. The learned Counsel for the petitioners contends that on the basis of the decision of N.S. Ramaswami, J., dated 10th October, 1974 made in Masilamani Chettiar v. Ramaswami Madaliar : (1975)1MLJ1 , Section 5 of the Limitation Act clearly applies and, therefore, the learned District Munsif was wrong in dismissing the application holding that Section 5 did not apply. It is true that N. S. Ramaswami, J., has held that Section 5 of the Limitation Act will apply to such a case. N.S. Ramaswami, J., in the said judgment has stated as follows:

Under Section 29(2) of the Limitation Act, 1908, where any special or local law prescribes a different period of limitation than what is prescribed in the First Schedule to the Limitation Act. Section 5 and several other sections of the Limitation Act would have no application; but the provisions contained in Section 4, Sections 9 to 18 and Section 22 of the said Act, would apply unless the special or local law expressly excluded the operation of those sections. Now, under Section 29(2) of the present Limitation Act XXXVI of 1963, Sections 4 to 24 are made applicable (unless they are expressly excluded by the special or local law), in cases where the actual or local law prescribes a different period of limitation than what is prescribed in the schedule to the Limitation Act.

The question therefore, is whether in the present case, the special or local law (Act IV of 1938) has prescribed a different period of limitation as contemplated under Section 29(2) of the Limitation Act. Even if the Act (IV of 1938) prescribes a different period of limitation, there would be no scope for applying the provisions of Section 5 under the Limitation Act, 1908; but, under the present Limitation Act, Section 5 would be attracted unless the special or local law (Act IV of 1938) expressly excluded the operation of the said section in the Limitation Act. It is obvious that the Act does not expressly exclude the operation of Section 5 or any other section of the Limitation Act. Therefore the question would be whether for an application under Section 19 of the Act, a different period of limitation is prescribed by the Act. If it does Section 5 is attracted.

Of course, there is another aspect regarding the question whether Section 5 is applicable or not and that is, whether the proceedings are before a Court or are only before a statutory body, Section 5 specifically says that only a Court, if satisfied that the applicant had sufficient! cause for not preferring the appeal or making the application, as the case may be, within the period limited, can admit such appeal or application beyond the prescribed period. Therefore, even though under Section 29(2), Section 5 is attracted to a particular proceeding, unless the proceeding is before a Court, Section 5 cannot be invoked. But that difficulty does not arise in the present case because admittedly the proceeding is before a civil Court. Therefore, the question is whether under the Act a different period of limitation is prescribed for an application under Section 19.

Under Section 19 of the Act itself, no period of limitation is prescribed. An application for scaling down the debt under the said section can be filed by the judgment debtor at any time. Section 20 gives a right to the judgment-debtor to apply to the executing Court for stay of execution. It is the proviso to Section 20 that speaks of the 60 days period within which an application under Section 19 has to be made. The contention on behalf of the decree-holder is that the period of 60 days mentioned in the proviso to Section 20 of the Act is not a period of limitation but what is stated in the said proviso is a condition precedent. It is pointed out that under the said proviso, it is not stated that once stay has been obtained, the judgment debtor will have a period of 60 days for fling an application under Section 19 for scaling down but it is stated that if after obtaining the stay, the judgment-debtor does not file an application under Section 19 within sixty days or where an application has been made and the same is rejected, the decree shall be executed as it stands. It is contended that once the judgment-debtor fails to file the application under Section 19 within sixty days of the grant of stay, the executing Court has no option than to execute the decree as it stands and that there would be no scope for the Court which passed the decree to entertain an application under Section 19 after the expiry of the above-said period of sixty days. This contention is not correct.

After refering to a Division Bench decision of this Court in Kumarasami Pillai v Thiruvenkadatha Iyengar : AIR1939Mad613 , after extracting a passage therefrom which stated:

Reading Section 19 in conjunction with Section 7 it would appear that the intention of the Legislature was to fix no period of limitation in ordinary circumstances. So long as a debt is enforceable, a debtor has a right to apply at any time for the scaling down of the debt, except in the circumstances contemplated by Section 20. In such circumstances there is a period of limitation and it is sixty days from the date on which the application for a stay is granted.

The learned Judge stated that he was bound to follow the Division Bench decision referred to above and, therefore, Section 5 of the Limitation Act applied to the case.

3. However, it has been brought to my notice that a subsequent Full Bench decision of this Court has taken a different view. That decision is Bangaru Chettiar v San Basha Sahib : (1976)2MLJ171 . The said Full Bench Judgment expressly referred to the Division Bench decision in Kumarasami Pillai v. Thiruvengadatha Iyengar : AIR1939Mad613 , and another decision in Sethurayar v. Karuppayammal (1945) 2 MLJ 533 : 58 LW 632 : AIR 1948 Mad 158, and stated:

It is true the decisions referred to by the learned Counsel for appellant in Kumaraswami Pillai v. Thirwengadatha Iyengar : AIR1939Mad613 , and Sethurayar v. Karuppayammal (1945)2 MLJ 533 : 58 LW 632 : AIR 1948 Mad 158 seem to support the respondent's stand. However, we are not inclined to agree with the view expressed in these cases that the proviso to Section 20 should be construed as providing a period of limitation for filing an application under Section 19...However, if these decisions are taken as laying down that the judgment-debtor has no right to file an application under Section 19 after the period of sixty days we are of the view that it is not the correct legal position. The proviso merely says that if the judgement-debtor does not apply to the Court which passed the decree under Section 20 for relief under Section 19 or where the application has been so made and rejected, the decree can be executed as it stands notwithstanding anything contained in the Act to the contrary. The proviso enables the executing Court to proceed with the execution of the decree as it stands if the judgment-debtor does not file an application under Section 20 within 60 days from the date he obtains an order under Section 19. The proviso does not say that the right of the judgment-debtor to file an application for relief under Section 19 is taken away or comes to an end. The proviso which dealt with the powers of the executing Court to execute the decree as it stands cannot be construed as curtailing the power of the Court which passed the decree to entertain and deal with an application under Section 19 by the judgment-debtor.

Thus according to the Full Bench judgment, there is no limitation prescribed for filing an application under Section 19 of the Act. If so, I am clearly of the view that Section 5 of the Limitation Act, has no application. Section 5 of (he Limitation Act, can apply only where a period has been prescribed for instituting the proceedings and the proceedings have not been actually instituted within the prescribed period and there was sufficient cause on the part of the party concerned for not instituting the proceedings within the prescribed period, however; when there is no specific period at all, the question of Section 5 applying to a case does not arise. Section 5 of the Limitation Act says-

Any appeal or any application, other than an application under any of the provision', of Order 21, Civil Procedure Code, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

4. It is the very basic postulate of Section 5 that there is a prescribed period for filing an appeal or an application and the party concerned did not file such an appeal or application within the prescribed period, but had sufficient cause for not doing so when there is no prescribed period at all. In terms, Section 3 will have no application whatever. On this short ground, I hold that the dismissal of the application filed by the petitioners herein by the learned District Munsif is correct, though for different reasons. Hence, the civil revision petition fails and is dismissed. There will be no order as to costs.


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