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Meenakshisundara Gramani Vs. A.D. Ramachandra Mudaliar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1962)1MLJ10
AppellantMeenakshisundara Gramani
RespondentA.D. Ramachandra Mudaliar
Cases ReferredCivil Procedure Code. In Kandaswami v. Kannappa I.L.R.
Excerpt:
- - 3. it would appear that that execution petition was partly satisfied by the payment of some amounts which were in the hands of an advocate-receiver. 6. even apart from this, it seems clear that in a case like the present, the decree-holder has got an extended period within which he can seek execution of the decree. but the intention behind sub-section (7) of section 4 of act 1 of 1955 seems to me to be perfectly clear......was disabled from executing the decree till 1st july, 1955. on the date on which the 12 years period of limitation prescribed by section 48 of the civil procedure code expired, i.e., 22nd january, 1955, these moratorium acts were in force. subsequently, an execution petition was filed whereunder an order for the arrest of the judgment-debtor was made. as against this order, there was a new trial application which was finally dismissed on 10th september, 1956. the decree-holder claimed that both by virtue of the moratorium acts and the stay granted in the new trial application, his prior execution petition e.p. no. 687 of 1957 was in time. it may be mentioned that an application for the transmission of the decree was filed on 12th february, 1957 and was ordered on 3rd april,.....
Judgment:

Srinivasan, J.

1. This petition raises the question of limitation under the following circumstances. The decree was made in M.S.C. No. 5942 of 1942 on 22nd January, 1943. By reason of Ordinance V of 1953, leading up to Act I of 1955, the decree-holder was disabled from executing the decree till 1st July, 1955. On the date on which the 12 years period of limitation prescribed by Section 48 of the Civil Procedure Code expired, i.e., 22nd January, 1955, these moratorium Acts were in force. Subsequently, an execution petition was filed whereunder an order for the arrest of the judgment-debtor was made. As against this order, there was a new trial application which was finally dismissed on 10th September, 1956. The decree-holder claimed that both by virtue of the moratorium Acts and the stay granted in the new trial application, his prior execution petition E.P. No. 687 of 1957 was in time. It may be mentioned that an application for the transmission of the decree was filed on 12th February, 1957 and was ordered on 3rd April, 1957. The prior execution petition itself was filed on 1st May, 1957.

2. The Assistant Judge of the City Civil Court held that the prior E.P. No. 687 of 1957 was in time.

3. It would appear that that execution petition was partly satisfied by the payment of some amounts which were in the hands of an Advocate-Receiver. That execution petition was accordingly closed.

4. The execution petition that leads to the present revision is E.P. No. 754 of 1958. In answer to this petition, the judgment-debtor claimed that the execution petition was barred by time. He relied on Section 48, Civil Procedure Code. But the Assistant Judge of the City Civil Court held that in view of the order on the prior application, this objection could not be accepted. It is that contention that is pressed in this revision.

5. It is not denied that the normal period of 12 years provided in Section 48, Civil Procedure Code, would expire on 22nd January, 1955. It is not also denied that on the date when this period would have expired, the various mortorium Acts were in force, which extended the period of limitation. It would be sufficient to refer to Section 8 of Madras Act I of 1955 which provided for the exclusion of the time during which the making of the application for the execution of a decree in respect of debt was barred by Section 3 of that Act. There was a similar provision in the earlier Act V of 1954. If, therefore, this period of 1 year, 6 months and odd so directed to be excluded by the relevant provisions of the moratorium Acts is given credit to, the period of 12 years would expire only in or about September, 1956. It is not necessary to consider whether the prior execution application E.P. No. 687 of 1957 having been filed in Court only on 1st May, 1957 could be regarded as within time, because that point was expressly considered by the executing Court and decided against the judgment-debtor. It is settled law that principles of res judicata are applicable to execution proceedings and this decision cannot, therefore, be agitated in the present petition.

6. Even apart from this, it seems clear that in a case like the present, the decree-holder has got an extended period within which he can seek execution of the decree. Under Section 4(1) of Act I of 1955, it is provided that notwithstanding any decree of Court, an agriculturist shall be entitled to pay the decree amount in certain specified instalments. Broadly stated, the decree debt is payable in four annual instalments, on the 1st of July, 1955 and the 1st of July of the three succeeding years. Sub-section (7) of Section 4 reads:

The provision of Sub-section (1) shall, for purposes of execution, be deemed to be a subsequent order of Court within the meaning of Clause (4) of Sub-section (1) of Section 48 of the Code of Civil Procedure, 1908.

In plain words, this sub-section lays down that whether or not, there is any specific order of Court directing payment of the decree debt in such instalments, every decree debt to which the provisions of the Act are attracted shall be deemed to have been directed to be paid in four equal instalments as indicated in Sub-section (1) and there shall also be deemed to have been a subsequent order of Court to the effect. It follows, therefore, that we have to proceed on the basis that there is an order of Court directing the payment of the decree debt in four annual instalments, the first of such instalments being payable on the 1st July, 1955. If that is the case, we have next to consider what the effect of Section 48 is on this provision.

7. In providing the limit of time for execution under Section 48, Civil Procedure Code, a distinction has been made between a decree in respect of which no instalments order has been made and a decree where such an order is available. In the case of such latter class of decrees, Section 48(1)(b) states that.no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from....

(a) ...

(b) where the decree or subsequent order directs any payment of money at a certain date or at recurring periods, the date of default in making the payment in respect of which the applicant seeks to execute the decree.

It is clear, therefore, that what Section 48(1)(b) prohibits is the entertainment of an execution application after the period of 12 years from the date of default in making the payment. Since by reason of Act I of 1955, the decree has become converted into a decree for payment of the amount in instalments on specified dates, and by virtue of Sub-section (7) of Section 4 of that Act, it has to be deemed that there was a subsequent order of Court directing the payment of money on specified dates, it follows that the decree-holder has a period of 12 years from the date of default in making the payment of such instalments; that is to say, from each of the four dates 1st July, of 1955, 1956, 1957, and 1958 he can compute the period of 12 years for the purpose of executing his decree in respect of the instalments which fell due on that day and in respect of which the judgment-debtor was in default.

8. There is no doubt no direct authority bearing upon the point. But the intention behind Sub-section (7) of Section 4 of Act 1 of 1955 seems to me to be perfectly clear. On the general aspect, however I may refer to Srinivasan v. Kumarappa Chettiar (1961) 1 M.L.J. 30 : I.L.R. (1960) Mad. 1059, where Jagadisan, J., held that the period of 12 years prescribed in Section 48 of the Civil Procedure Code is a period of Limitation within Section 15 of the Limitation Act. The learned Judge had to consider the effect of Section 8 of Act I of 1955 in repelling the contention that Section 48 of the Civil Procedure Code provided for an absolute period beyond which a decree could not be executed. He held that the total period of 1 year, 6 months and 26 days occupied by the ban under the three enactments Ordinance V of 1953, Act V of 1954 and Act I of 1955 had to be excluded from the period of Limitation prescribed under Section 48, Civil Procedure Code. In Kandaswami v. Kannappa I.L.R. (1952) Mad. 421 , a Full Bench of this Court also took the view that the period of 12 years mentioned in Section 48 of the Act is a period of limitation within Section 15(1) of the Limitation Act. In the light of this accepted position in law, it follows that any special enactment which, purports to fix a different period of limitation from that contained in the Limitation Act is not ineffective and there is no scope of entertaining the argument that Sub-section (7) of Section 4 of Act I of 1955 has not the result of prescribing the extended period of limitation in respect of debts to which Sub-section (1) of that section applies. The petition accordingly fails and is dismissed with costs.


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