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Manickam Chettiar Vs. Ramaswami Chettiar and anr. - Court Judgment

LegalCrystal Citation
Subject civil
CourtChennai
Decided On
Reported inAIR1945Mad70
AppellantManickam Chettiar
RespondentRamaswami Chettiar and anr.
Cases ReferredSubbarayan v. Natarajan A.I.R.
Excerpt:
- - in fact the relief sought was of necessity only a transfer of the papers to the mayavaram court, so that an execution petition could be filed there and the actual execution petition in the mayavaram court seeking to recover the decree amount by the attachment of particular properties is clearly a fresh proceeding which cannot be treated as a continuation of the merely ancillary proceeding in the trial court......eventual exercise was to depend retrospectively upon some future order. during the pendency of the transfer application, i consider that the only court which had jurisdiction to execute the decree was the trial court. jurisdiction passed to the transferee court by the order of transfer and there is no basis for holding that this order dates back to the date of the application.4. it is next argued that the amendment of the decree under section 19 of madras act, 4 of 1938 gives a fresh starting point not merely under article 182, limitation act, but also for the purpose of section 48, civil p.c. this argument is reinforced by two rather conflicting lines of judicial reasoning. there is the decision of horwill j. in jagannadham v. venkatapanna a.i.r. 1943 mad. 765 where it was held that for.....
Judgment:

1. The appellant obtained a decree on 18th March 1930, for a sum of Rs, 821. On 17th April 1941, the debtor obtained a stay Under Section 20 of Madras Act 4 of 1938, and in subsequent proceedings Under Section 19 of that Act, the decree was scaled down to an amount of Rs. 307. On 16th March 1942, i.e., two days before the expiry of the twelve years period fixed in Section 48, Civil P.C., the appellant applied to the decree Court, that is to say, the Court of the Subordinate Judge of Kumbakonam, for the transfer of the decree to the Court of the District Munsif of Mayavaram for execution. This application was eventually ordered on 20th March 1942, i.e., after the twelve years period had expired. Meanwhile, however, the appellant, in anticipation of this transfer order, .had filed the present execution petition in the Court of the District Munsif of Mayavaram on 18th March 1942. The papers were actually received at Mayavaram on 28th March and the petition was dismissed as being barred Under Section 48, Civil P.C. The correctness of this order is now under consideration.

2. The appellant has raised a number of contentions. Firstly, he contends that the execution petition filed at Mayavaram on 18th March 1942, must be treated as having been presented on that date even though the decree had not yet been transferred to Mayavaram for execution, so that it cannot be said to be a fresh application presented after the expiration of twelve years from the date of the decree. The argument is that the section does not say 'validly presented' or 'presented to the proper Court.' It seems to me that some such qualification must be implicit in the language and that it is impossible to contend that the presentation in a Court which has no jurisdiction is presentation at all. It is unthinkable that the decree-holder should be able to keep his decree alive by presentation of an execution petition in any Court regardless of its jurisdiction to execute the decree. I must hold that the mere handing in of this execution petition to a Court which had no jurisdiction to receive it, was not a presentation and that the presentation of the petition cannot be deemed to have taken place before the date when the executing Court had jurisdiction to receive it.

3. That the date of the order of transfer is the date with effect from which the transferee Court has jurisdiction has been held in Ademma v. Venkatasubbayya A.I.R. 1933 Mad. 627. It is suggested that the order of transfer must date back to the date of the application for transfer, so that the transferee Court would have jurisdiction even before the transfer was ordered. The contention is that it is a general rule of procedure that all judicial orders date back to the date of the initiation of proceedings. I am not aware of any such general rules No doubt there are many classes of proceedings in which the final order is deemed to take effect from the date of the initiation of the proceedings; but when we are dealing with a question of jurisdiction, it seems to me that jurisdiction cannot be in abeyance, as it would be if its eventual exercise was to depend retrospectively upon some future order. During the pendency of the transfer application, I consider that the only Court which had jurisdiction to execute the decree was the trial Court. Jurisdiction passed to the transferee Court by the order of transfer and there is no basis for holding that this order dates back to the date of the application.

4. It is next argued that the amendment of the decree Under Section 19 of Madras Act, 4 of 1938 gives a fresh starting point not merely under Article 182, Limitation Act, but also for the purpose of Section 48, Civil P.C. This argument is reinforced by two rather conflicting lines of judicial reasoning. There is the decision of Horwill J. in Jagannadham v. Venkatapanna A.I.R. 1943 Mad. 765 where it was held that for the purpose of continuing a pending execution petition, the decree amended Under Section 19 is the same decree and not a different decree; whereas in Vikkara Veilodi v. Avarankutti A.I.R. 1943 Mad. the Bench dealing with the question of the appealability of a decree amended under Sections 15 and 19, Madras Act, 4 of 1938, emphasized the difference in the mode of calculation of the amount payable under the decree and held that for purposes of appeal, the amended decree must be regarded as a fresh decree. It seems to me apparent that the decree as amended Under Section19, Madras Act, 4 of 1938, may be regarded in one sense as the same decree and in another sense as a fresh decree. But the question of the application of Section 48 to an amended decree is covered by the decision of the Full Bench in Ramachandra Rao v. Parasuramayya A.I.R. 1940 Mad. 127 where it is pointed out that inasmuch as Article 182, Limitation Act, providing a fresh starting point of limitation from the date of the amendment of the decree is subject to the provisions of Section 48, Civil P.C., there can be no execution of a decree governed by Section 48 when 12 years have passed from the date of the decree, whether amended or not. It is true that the Full Bench was concerned with an amendment made Under Section 152, Civil P.C., but I can see no reason for applying a different rule to the case of an amendment made Under Section 19, Madras Act, 4 of 1938. The decisions of this Court regarding the right of appeal against a decree as amended under the Civil Procedure Code have been relied on for the view that a decree as amended Under Section 19, Madras Act, 4 of 1938, is separately appealable. Though, no doubt, the amendment Under Section 19 is frequently much more drastic than an amendment Under Section 152, Civil P.C., it is for purposes of execution still the same decree as is shown by the provisions of Section 19 itself, where-under if the scaling down process wipes out the whole of the debt, the Court has to record satisfaction of the original decree and undoubtedly all payments made to the original decree are taken into consideration in the process of amendment. I am therefore of opinion that the decision in Ramachandra Rao v. Parasuramayya A.I.R. 1940 Mad. 127 governs the present case and that the amendment of the decree does not give a fresh starting point for the purpose of the 12 years rule Under Section 48, Civil P.C.

5. The third argument is one which need not be considered at length. The contention is that the words 'fraud or force' in Sub-section (2)(a) of Section 48, Civil P.C., would cover the judicial constraint imposed by the passing of the stay order. It seems to me manifest that this would be doing violence to the plain English of the section and that the words 'fraud or force' contemplate some act of violence or deceit at the instance of an interested party, whereby the decree-holder is prevented from executing his decree and do not contemplate a mere judicial order restraining that execution.

6. Fourthly, it is contended that the execution petition in the Mayavaram Court can be regarded as a continuation of the transfer application in the Kumbakonam Court. This argument is reinforced by calling attention to the fact that the application to the Kumbakonam Court is drafted as an execution petition and not as a mere application. It seems to me to make no difference whether the petition to the Kumbakonam Court is called an execution petition or is called an application for transfer. In fact the relief sought was of necessity only a transfer of the papers to the Mayavaram Court, so that an execution petition could be filed there and the actual execution petition in the Mayavaram Court seeking to recover the decree amount by the attachment of particular properties is clearly a fresh proceeding which cannot be treated as a continuation of the merely ancillary proceeding in the trial Court. The decision in Nilmony Singh Deo v. Biressur Banerjee (1989) 16 Cal. 744 is authority for this view.

7. Lastly, it is contended that Under Section 15, Limitation Act, the period of the stay under Madras Act 4 of 1938 can be excluded for the purpose of calculating the 12 years term Under Section 48, Civil P.C. This contention is negatived by the decision in Subbarayan v. Natarajan A.I.R. 1922 Mad. 268 which has been followed by another Bench of this Court in Tandavamurthi v. Durgamba : AIR1928Mad1154 . No doubt the reasoning of one of the learned Judges in the former case has been criticized by the Bench which decided Kalyanasundaram Pillai v. Vaidhilingam A.I.R. 1939 Mad 270 and a different view has been taken by a Full Bench of the Allahabad High Court in Duragpal Singh v. Panoham Singh : AIR1939All403 . I am, however, bound by the decision in Subbarayan v. Natarajan A.I.R. 1922 Mad. 268 and must hold that the period for which the stay continued cannot be excluded in calculating the 12 years period Under Section 48, Civil P.C. In the result therefore the appeal fails and is dismissed with costs. Leave refused.


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