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Dakshinamoorthi Pathan Vs. Krishnasami Kadavaran and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1930Mad356
AppellantDakshinamoorthi Pathan
RespondentKrishnasami Kadavaran and ors.
Cases Referred and Fitzholmes v. Bank of Upper India
Excerpt:
- - 4. his appeal to the high court and to the privy council claiming the other schedule properties failed; the decision under article 182 clearly support the contention of the appellant.anantakrishna ayyar, j.1. the plaintiff's application for the passing of a final decree for the sale of the hypotheca in pursuance of the preliminary decree passed in his favour on 1st february 1918 fixing the time for payment as 1st august 1918. though allowed by the district munsif, was disallowed by the learned subordinate judge of tanjore on the ground that the petition was barred by limitation under article 181, limitation act. the plaintiff has preferred this second appeal.2. original suit no. 47 of 1917 was a suit instituted by the plaintiff to recover money due on two hypothecation bonds, dated 30th november 1898, and 7th november 1914, respectively, the first bond comprising plaint items 1 to 3, while the second comprised plaint items 4 and 5. the mortgagor was defendant 1 and.....
Judgment:

Anantakrishna Ayyar, J.

1. The plaintiff's application for the passing of a final decree for the sale of the hypotheca in pursuance of the preliminary decree passed in his favour on 1st February 1918 fixing the time for payment as 1st August 1918. though allowed by the District Munsif, was disallowed by the learned Subordinate Judge of Tanjore on the ground that the petition was barred by limitation under Article 181, Limitation Act. The plaintiff has preferred this second appeal.

2. Original Suit No. 47 of 1917 was a suit instituted by the plaintiff to recover money due on two hypothecation bonds, dated 30th November 1898, and 7th November 1914, respectively, the first bond comprising plaint items 1 to 3, while the second comprised plaint items 4 and 5. The mortgagor was defendant 1 and his son defendant 2 and defendant 3 claimed title, as auction, purchaser, to items 4 and 5, while defendant 4 was a private alienee of items 1 to 3. The preliminary decree passed by the First Court is dated 1st February 1918, and the time fixed for payment was 1st August 1918. An appeal preferred by defendant 3 making defendant 4 also as a party respondent along with the plaintiff and defendants 1 and 2 was allowed in his favour on 14th February 1919, and the interest of defendant 3, if any, in items 4 and 5 was declared not liable for the mortgage amount. The second appeal preferred by the plaintiff was dismissed on 31st March 1921; the plaintiff's present petition for the passing of a final decree was filed on 25th March 1924, i.e., within three years from the date of the High Court's decree, but beyond 3 years after the preliminary decree passed by the first Court on 1st February 1918, and also beyond 3 years from the date fixed for payment (1st August 1918). In these circumstances the legal representative of defendant 4 raised objection to the passing of a final decree on the ground that the application was barred by limitation.

3. The first Court overruled the contention and held that the period of limitation for the petition for passing the final decree was to be calculated from the date of the High Court's decree 31st March 1921. The District Munsif accordingly passed a final decree for the sale of the hypotheca. Defendant 4's legal representative preferred an appeal and the lower appellate Court held that the starting point of limitation was not the date of the High Court's decree, but the date fixed for payment in the preliminary decree passed by the District Munsif. This learned Subordinate Judge was of opinion that the decree must in effect be treated as a compound decree,' one passed in respect of the mortgage Ex. A for the amount due thereon, and the other in respect of mortgage Ex. B for the amount due thereon, the amounts due under each mortgage being separately decreed and the properties covered by mortgage being separate. He held that the appeal and the second appeal relating to mortgage under Ex. B only could not affect the starting point of limitation in respect of the portion of the decree regarding the mortgage under Ex. A, though written in one paper he held that the decrees were really two, and that the plaintiff ought to have applied for the passing of the final decree in respect of the properties covered by Ex. A within 3 years from the date fixed for payment (1st August 1918), and not having done so the plaintiff's right was barred. He relied on the decision reported in Christiana Benslawn v. Banarashi Proshad [1915] 19 C.W.N. 287, and observed that the decree in the present case was a 'compound decree', being an incorporation of two decrees, and as the appeal preferred by defendant 3 did not imperil the decree passed on the 1st mortgage Ex. A the period of limitation for the present application started from the date fixed in the preliminary decree.

4. It is therefore material to set out the terms of the preliminary decree passed on 1st February 1918, by the District Munsif, and the decree passed by the appellate Court on defendant 3's appeal 125 of 1918 dated 14th February 1919; hereunder are set out the above two decrees.

5. Extract from the Munsif's decree:

It is hereby declared that the amount due to the plaintiff on account of principal, interest and costs calculated up to the 1st day of August 1918, is Rs. 418-4-3, and that the principal sum of Rs. 227-0-0 (Rs. 82 principal for the first bond Ex. A and Rs. 145 principal for the second bond, Ex. B) shall carry interest at the rate of six per cent per annum until realization, and it is decreed as follows:

That if the defendants pay into Court the amount so declared due on or before the said 1st day of August 1918, the plaintiff shall deliver up to the defendants or to such person as they appoint all documents in his possession or power relating to the mortgaged property and shall if so required transfer the property to the defendants free from the mortgages from all incumbrances created by the plaintiff or any person claiming under him. That if such payment is not made on or before the said 1st August 1918, the mortgaged property or a sufficient part thereof shall be sold subject to the following directions, namely, that plaint items 1 to 3 shall alone be sold for the recovery of the amount due under Ex. A with subsequent interest and proportionate costs calculated up to 1st August 1928 viz., Rs. 148-2-10 and plaint items 4 and 5 alone shall be sold for the recover of the amount due under Ex. B with subsequent interest and proportionate costs calculated up to 1st August 1918 viz., Rs. 270-1-5 and that the proceeds of the sale after defraying there-out the expenses of the sale be paid into Court and applied in payment of what is declared due to the plaintiff as aforesaid together with subsequent interest and subsequent costs and that the balance, if any, be paid to the defendants, personal remedy against defendant land the family properties of defendants 1 and 2 is not barred.

6. Extract from the appellate Court decree:

This Court doth, allowing the appeal and in modification of the decree of the lower Court order and decree that the interest of defendant 3 (appellant) if any, in items 4 and 5 of the plaint mentioned properties (described hereunder) be and hereby is not liable for the amount due to the plaintiff (respondent 1) under his second hypothecation bond.

This Court doth further order and decree that the plaintiff (respondent 1) do pay to the appellant (defendant 3) Rs 6-0-0 for his costs in the lower Court and Rs. 42-0-0 for his costs in this appeal.'

7. The article applicable to an application for the passing of a final decree is Article 181, Lim. Act; the period is three years, and time begins to run 'when the right to apply accrues.' It has now been held by all the High Courts in India, and also by the Privy Council, that when there is an appeal from a preliminary decree, time will run for an application for a final decree only from the date of the decree of the final Court of appeal preferred against the preliminary decree. See the decisions of the Full Bench of the Allahabad High Court in the case reported in Gajadhar Singh v. Kishan Jiwan Lal [1917] 39 All. 641, also Nizam Uddin Shah V. Bohra Bhim Sen [1918] 40 All. 203, Venkayya v. Sathiraju A.I.R. 1921 Mad. 414, Subbaravulu Naidu v. Sundararaja Nayudu : (1918)35MLJ507 , Mahabir Prasad v. Kanhaiyalal : AIR1924All99 , Uma, Charan v. Nibaran Chandra : AIR1923Cal389 , Jowad Hussain v. Gendan Singh A.I.R. 1926 P.C. 93 and Fitzholmes v. Bank of Upper India . This position is clear and finally settled. But it is argued that the above cases were not cases where what has been called in in these proceedings a 'compound decree' had been passed, which, it is argued should be taken to be two separate decrees, and it is urged that in such cases the circumstances that an appeal was preferred against one of the compound decrees' should not be taken to extend the period of limitation applicable to an application for passing a final decree The reply urged to this argument was that similar questions have been considered by Courts in connexion with the applicability of Article 182, Lim. Act, and that in such cases Courts have held that in cases where a decree gave different reliefs against different defendants, and appeals were preferred only in respect of a portion of the decree against some defendant or relating to some reliefs only, that the period of limitation for executing any portion of the decree would begin to run only from the date of the final decree passed on appeal. The decision of the Full Bench of the Madras High Court in the case reported in Kristnamachariar v. Mangammal [1903] 26 Mad. 91, was relied on. Reliance was also placed on the decision of Sir John Willis, C.J. and Oldfield, J., in the case reported in Venkayya v. Sathiraju A.I.R. 1921 Mad. 414. The decision in Venkayya v. Sathiraju A.I.R. 1921 Mad. 414 was under Article 181, Lim. Act, and the learned Judges held that:

an application for a final decree is governed by Article 181 of the Act and the starting point in cases where there has been an appeal from the preliminary decree is the date of the appellate decree whether the latter confirmed or varied the preliminary decree.

8. Their Lordships observed:

It would be strange if a different rule were applicable under Article 181 as regards applications for a decree absolute where the preliminary decree is under appeal, an application so much resembling an application for execution that, under the repealed chapter of the Transfer of Property Act, it was held by this Court to be one.

9. The learned advocate for the respondent relied on the decision of the Calcutta High Court in the case reported in Christiana Benshaw v. Benarashi Proshad Chowdhury [1915] 19 C.W.N. 287. The learned Judge Coxe, J., observed:

it seems to me that the present case shows the wisdom of adhering to the view taken in Har Proshad Roy v. Enayat Hossain 2 C.L.R. 471, that in dealing with the question of limitation in these cases we should see whether the original decree was really one decree or an incorporation of several decrees, and whether the appeal against it imperilled the whole decree or not. Evidently the words 'where there has been an appeal' in Article 182, 01. 2, Lim. Act, mean, 'where there has been an appeal against the decree or order for the execution of which an application is made.

10. With reference to this, the first observation I have to make is that the learned Judges there were considering a case under Article 182, Lim. Act, and were of the opinion that unless the decree of the appellate Court imperilled also the portion of the decree not appealed against, limitation for execution of the unappealed portion will begin to run from the date of the original decree, and not from the date of the final appellate decree. This view is against the decision of the Full Bench of this High Court in the case reported in Krishnamachariar v. Mangammal [1903] 26 Mad. 91. In fact a similar view expounded in Muthu v. Chellappa [1889] 12 Mad. 479, was overruled by the Full Bench in the case reported in Krishnamachariar v. Mangammal [1903] 26 Mad. 91. In the Judgment of Benson, J., it is observed:

There is no indication is that Article (179), Old Lim. Act corresponding to 182 of the present Act that the legislature intended the Courts to consider how far each part of an original decree was 'imperilled' by an appeal and to vary the period of limitation accordingly.

11. Both the learned Chief Justice and Bhashyam Ayyangar, J., were also of opinion that there was no basis for 'the theory of imperilment.' Therefore the decision in Christiana Benshaw v. Benarshi Proshad [1915] 19 C.W.N. 287. based under Article 182, Lim. Act could not be treated as law in this Presidency. Further, the law as contained in the above passage in Christiana Benshaw v. Benarshi Prosad [1915] 19 C.W.N. 287, has been expressly dissented from in Calcutta in the recent case reported in Abdul Alim v. Abdul Hafiz : AIR1927Cal89 . In Abdul Alim v. Abdul Hafiz : AIR1927Cal89 , the learned Judges decided that upon the true construction of the terms of Article 182 (2), Lim. Act, the limitation runs from the date of the final decree of the appellate Court where there has been an appeal, irrespective of the question whether the appeal relates to the whole decree or not and they expressly dissented from the view taken in Christiana Benshaw v. Benarshi Prosad [1915] 19 C.W.N. 287. I may also mention that in Ari Chettiar v. Theerthamalai Chetty [1916] 3 M.L.W. 521. Sadasiva Iyer and Morce, JJ. observed with reference to Christina Benshaw v. Benarashi Proshad [1915] 19 C.W.N. 287. that:

it would not be supposed that we agree with that decision.

12. Again, 'there could be only one final decree in a suit'-(sic) per Bashyam Ayyanger, J. in the case reported in Kristnamachariar v. Mangammal [1903] 26 Mad. 91. This was the view of the Privy Council also as is seen from the case reported in Jowad Hussain v. Gendan Singh A.I.R. 1926 P.C. 93 their Lordships quoted the following sentence from the Judgment of Banerjee, J., in the case reported in Gajadhar Singh v. Kishan Jiwan Lal [1917] 39 All. 641:

it seems to me that this rule contemplates the passing of only one final decree in a suit for sale upon a mortgage.

13. Again, the definition of the word 'decree' in Section 2, Civil P.C. has to be kept in view. Under the Civil Procedure Code certain causes of action could be combined in one suit. When that is done the suit should be taken to properly comprise all the reliefs claimed therein. The Court may in proper cases direct that several causes of action may be tried in separate suits and may confine the plaint to one cause of action if it thought that the circumstances of the case required the same. But when the Court proceeded to overrule the plea of the defendants about misjoinder of causes of action, as it did in the present case, the circumstances that the causes of action were different loses its importance. One often finds a single mortgage comprising various items of properties in which various defendants are interested. The Court has got discretion to allow particular items to be sold in a particular order; it may also declare what portion of the amount decreed should be realised from what particular items; in the same way, in an ordinary suit to recover money against different defendants, the Court may exonerate some defendants, limit the liability of some other defendants to a portion of the amount decreed, or define and limit the liability of each defendant to particular portions of the amounts decreed. In such cases the theory of 'compound decree' would surely be inapplicable. The principle of the Full Bench decision in the case reported in Kristnamachariar v. Mangammal [1903] 26 Mad. 91, and the construction placed on Article 182 (old Article 179), Lim. Act by the Full Bench of Madras in the above case, and by the Full Bench of the Calcutta High Court in the case reported in Gopal Chunder Manna v. Gosain Das Kalay [1898] 25 Cal. 594, are also against the view contended for by the respondents. In fact the decision in Dewan Abdul Alim v. Abdul Hakam : AIR1927Cal89 , related to a case where the plaintiffs sued to recover properties described in Schs. 1, 2, and 3 and 4 of the plaint. Ho got a decree only in respect of properties in Sch. 4. His appeal to the High Court and to the Privy Council claiming the other schedule properties failed; more than 3 years after the date of the 1st Court's decree but within 3 years of the decree of the final appellate Court, the plaintiff-decree-holder-applied for execution of the decree with reference to the properties in Sch. 4, decreed to him by the 1st Court and against which there were no appeals or questions thereafter. The Calcutta High Court held that the plaintiff's application was not barred by limitation. The principle of the decision of the Madras High Court in the case reported in Krishnamachariar v. Mangammal [1903] 26 Mad. 91, and Subramanya Chettiar v. Alagappa Chettiar [1907] 30 Mad. 268, is also the same. This principle has been accepted as sound by the Privy Council also.

14. Article 179 of the old Lim. Act was split into the present Arts. 181 and 182 of the present Act. See the observations in Venkayya v. Sathiraju A.I.R. 1921 Mad. 414 and Somar Singh v. Mt. Premdei : AIR1925Pat40 , (at p. 336 of 3 Pat.) The principles regarding the starting point of limitation in Article 182 and in Article 181 are generally the same. The decision under Article 182 clearly support the contention of the appellant. The Privy Council has decided that the starting point of limitation for an application for a final decree-(order absolute under the T.P. Act) is from the date of the final decree. Passing of two final decrees in same suit is not contemplated by Civil Procedure Code. Though all periods of limitation are more or less arbitrary, it is of the highest importance that they should be laid down with clearness and certainty, and subtle distinctions not warranted by the language of the legislature should not be introduced by the Courts, as observed by Benson, J., at p. 94 of the Full Bench decision in Krishnamachariar v. Managammal [1903] 26 Mad. 91. See also the observation of the learned Chief Justice at p. 92 to the effect that the rule of law laid down by the Full Bench:

though not altogether scientific is simple, certain and intelligible.

15. The definition of the word 'decree' in the Civil Procedure Code favours the appellant's contention, that as against defendants 1 and 2, the decree now in question is a single decree, though with reference to properties, the liability of particular items have been defined.

16. I am therefore unable to follow the reasoning of the learned Subordinate Judge, either that the decree in question is a compound decree', or that there should be 'several decrees absolute in this case', or that the starting point of limitation for an application for a decree absolute is different with reference to different portions of the reliefs decreed in this case.

17. The rulings of the Privy Council in the cases reported in Jowad Hussain v. Gendan Singh A.I.R. 1926 P.C. 93 and Fitzholmes v. Bank of Upper India , are specific, namely:

where there has been an appeal from a preliminary mortgage decree the period of three years within which, under the Lim. Act, Article 181, an application for a final decree must be made runs from the date of the decree of the appellate Court and not from the expiry of the time for payment fixed by the preliminary decree.

18. In the present case, such an application has been made within three years from the date of the decree of the appellate Court and is therefore in time. I therefore reverse the decree of the lower appellate Court and restore that of the 1st Court with costs here and in the lower appellate Court.


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