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K. P. Chidambara Mudaliar Vs. V. S. Rukmani Ammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1974)2MLJ402
AppellantK. P. Chidambara Mudaliar
RespondentV. S. Rukmani Ammal
Excerpt:
- - any one, who could read between the lines, would see clearly that e. 147 of 1963, which, having been filed within the period of limitation allowed by law, was clearly in time......182 of the old limitation act, a period of limitation of three years will be available to the decreeholder from the date of amendment. the combined effect of section 48, civil procedure code and article 182 (4) of the old limitation act is to extend by three years the period of limitation of twelve years prescribed by section 48, civil procedure code. the decree in respect of past maintenance would then get barred on 4th october, 1963, that is to say, on the expiry of three years from the date of its amendment. as for the decree in respect of future maintenance, it was a recurrent liability and the decree in respect of liability for each month after the date of the decree would get barred on the expiry of 12 years after the concerned monthly maintenance became due.2. the.....
Judgment:

S. Maharajan, J.

1. This is an appeal against the judgment of the District Judge of North Arcot confirming in appeal, the order of the Principal Subordinate Judge, Vellore holding that the execution petition filed by the respondent was not barred by time. One Govinda Ammal, who was the wife of the appellant Chidambara Mudaliar, obtained a decree for maintenance against her husband in O. S. No. 133 of 1948 on the file of the Sub-Court, Vellore. Under the decree the husband was liable to pay the wife, for the term of her life, maintenance at the rate of Rs. 150 per mensem from 9th September, 1948. The maintenance decree itself was granted on 13th July, 1949. On 4th October, 1960 the decree was amended by providing for sale of the charged properties in case the judgment-debtor defaulted to pay. The decree-holder died on 27th September, 1961. Rukmani Ammal, who was the daughter and heir of Govinda Ammal, the decree-holder, filed E.A. No. 196 of 1963 on 20th March, 1963, for recognising her as the legal representative of her deceased mother on foot of a registered will executed by her. She also filed on 19th June, 1963 E. P. No. 147 of 1963 for execution of the decree in respect of the amount that had accrued due up to 27th September, 1961, the date of death of the decree-holder. Both these applications were dismissed on 4th June, 1966 as not pressed. The petitions were not pressed evidently because the judgment-debtor took the objection that without production of letters of administration Rukmani Ammal was not competent to execute the decree. Subsequently she obtained letters of administration and filed E. P. No. 47 of 1969, which though numbered in 1969 had been filed on 2nd December, 1968 itself. It was this execution petition that the judgment-debtor attacked as barred by limitation. Both the executing Court and the first appellate Court have repelled this contention and directed execution to proceed. It is against the order of the first appellate Court concurring with that of the executing Court that the present appeal has been filed. In order to find nut if the decree was alive, we have to refer to certain relevant events and consider them in the light of the provisions of the Limitation Act of 1908. The maintenance decree, as I have already noted, was granted on 13th July, 1949 and it would be ordinarily barred on 13th July, 1961 in respect of arrears due up to 13th July, 1949 under Section 48, Civil Procedure Code, but then it was amended on 4th October, 1960. Under Clause (4) of Article 182 of the old Limitation Act, a period of limitation of three years will be available to the decreeholder from the date of amendment. The combined effect of Section 48, Civil Procedure Code and Article 182 (4) of the old Limitation Act is to extend by three years the period of limitation of twelve years prescribed by Section 48, Civil Procedure Code. The decree in respect of past maintenance would then get barred on 4th October, 1963, that is to say, on the expiry of three years from the date of its amendment. As for the decree in respect of future maintenance, it was a recurrent liability and the decree in respect of liability for each month after the date of the decree would get barred on the expiry of 12 years after the concerned monthly maintenance became due.

2. The decree-holder died on 27th September, 1961, and her daughter, who is the respondent in this appeal, filed E.P. No. 147 of 1963 on 19th June, 1963 for realization of Rs. 21,805 by sale of some of the charged items mentioned in the decree. This execution petition was within time. The judgment-debtor opposed this execution petition on the ground that without proof of the will, on foot of which the daughter of the decree-holder claimed the decretal amount, she ought not to be allowed to execute the decree. This forced the daughter to file O.P. No. 49 of 1966, on the file of the District Court at Vellore for grant of letters of administration on foot of the will executed by her mother, Govindammal. That original petition was opposed by the judgment-debtor and it was therefore pending for a considerable time. The result was that E.P. No. 147 of 1963 was being adjourned from time to time for production of letters of administration.

3. On 4th June, 1966, that is to say, after E.P. No. 147 of 1963 had been kept pending for nearly three years, the decree-holder's daughter, evidently to oblige a statistically-minded Court, made the following endorsement:

Without prejudice to filing another petition this application is not pressed now and it may be dismissed for statistical purposes as not pressed.

The Court jumped at this endorsement and passed the following order:

Dismissed as not pressed.

4. The learned Subordinate Judge has rightly held that the endorsement was made by the decree-holder's daughter, not because she had committed any default in carrying forward the execution petition, but because, for reasons beyond her control, the letters of administration she had applied for had not yet been granted by the District Court. The learned District Judge erred when he held, in appeal, that the dismissal of E. P. No. 147 of 1963 was not effected for statistical purposes. Any one, who could read between the lines, would see clearly that E.P. No. 147 of 1963 was not pressed because the execution petitioner was invited to lighten the file of the Court in which the execution petition had remained pending for nearly three years. It would then follow that when the respondent filed E.P. No. 47 of 1969 on 2nd December, 1968, that is to say, within three years after the date on which E.P. No. 147 of 1963 was dismissed for statistical purposes, that execution petition must be regarded as a continuation or revival of E.P. No. 147 of 1963.

5. Learned Counsel for the appellant contends that it cannot be so regarded for two reasons:

(i) certain items not included in the earlier execution petition have been included in the later execution petition;

(ii) the amount claimed in the latter execution petition is larger than that claimed in the earlier one.

I do not think that the additional items against which sale is prayed for and the additional amount for which execution is sought to be levied, can detract from the character of the subsequent execution petition, which is in essence a continuation or revival of the earlier execution petition. It may be that if any claim is made in the subsequent execution petition for the first time after the period of limitation of twelve years had expired, that part of the claim is liable to be rejected as barred by time. But then, the decree was for monthly maintenance and the amount was accruing due each month till the original decree-holder died; and the decree-holder or her legal representative would be entitled to execute the decree for each monthly installment within a period of twelve years thereafter. If any such claim, which was not barred by time, was included in the subsequent execution petition it goes without saying that it can be enforced, notwithstanding the fact that in respect of the amount claimed in the previous execution, the subsequent execution petition would be treated merely as a revival or continuation of the previous one. In other words, the subsequent execution petition would be regarded as a composite petition containing a prayer to continue or revive the prior execution petition plus a fresh execution petition in respect of such fresh claim, both as regards money and property as might not have been barred by limitation. The mere addition of a claim cannot ipso facto convert what is essentially an application for continuation or revival into an independent execution petition. I would therefore hold that E.P. No. 47 of 1969, which was filed on 2nd December, 1968, must be regarded as only a continuation of E.P. No. 147 of 1963, which, having been filed within the period of limitation allowed by law, was clearly in time.

6. Consequently, the appeal of the judgment-debtor fails and will stand dismissed with costs. Leave refused.


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