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Indian Bank Vs. B.D. Kothandapani and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai High Court
Decided On
Reported in(1982)1MLJ367
AppellantIndian Bank
RespondentB.D. Kothandapani and ors.
Excerpt:
- .....rejected this plea. the court observed that the twelve-year time-limit, as computed from the date of the decree, showed that the 1st day for the execution of the decree was on 1st september, 1972. but, en that date, there was no injunction of any court against the petitioner for executing his decree. it was pointed out that the injunction had already been vacated on 19th august, 1969. in the opinion of the learned judge, the decree-holder could not seek to exclude the time during which the injunction was in force, in the events that happened. on this basis, he held that the execution petition was barred by limitation.3. in this revision, the decree-holder's learned counsel submitted that this view of the court below on the application of section 15(1) of the limitation act is.....
Judgment:
ORDER

V. Balasubrahmanyan, J.

1. The question in the revision is whether the application for execution filed by the petitioner was or was not barred by limitation. The decree was a mortgage decree. The final decree was passed on 1st September, 1960. The petition for excuting the decree was filed by the petitioner on 16th December, 1973. It may, however, be observed that the decree-holder was restrained from executing the decree by an order of injunction passed on 7th September, 1965 in an interlocutory proceeding in another suit. That order of injunction was in force till 19th August 1969, when the injunction stood vacated with the dismissal of the relevant main suit itself.

2. Before the executing Court the decree-holder in the present case submitted that the period during which the injunction in the other suit was in force, namely from 7th September, 1965 to 19th August, 1969, must be excluded in computing the period of limitation of twelve years applicable to the execution petition. The executing Court, however, rejected this plea. The Court observed that the twelve-year time-limit, as computed from the date of the decree, showed that the 1st day for the execution of the decree was on 1st September, 1972. But, en that date, there was no injunction of any Court against the petitioner for executing his decree. It was pointed out that the injunction had already been vacated on 19th August, 1969. In the opinion of the learned Judge, the decree-holder could not seek to exclude the time during which the injunction was in force, in the events that happened. On this basis, he held that the execution petition was barred by limitation.

3. In this revision, the decree-holder's learned Counsel submitted that this view of the Court below on the application of Section 15(1) of the Limitation Act is untenable. I agree with the learned Counsel's submission.

4. Section 15(1) of the Limitation Act provides, inter alia that in computing the period of limitation for any application for execution of a decree, the execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn shall be excluded. The proper way to apply this provision is to compute the period of limitation with the time running till the date on which the injunction is issued, for that marks the date on which the running of time will stop. The time will stop running and will remain suspended till the day on which the order of injunction is withdrawn. It is on the day after that, when the time will again begin to run its course. In practical terms, the time during which the injunction is in force is a slice of time which has got to be completely cut out, removed out of reckoning, and excluded in the computation of the twelve year period of limitation prescribed for the filing of the execution petition. The statute does not impose any requirement that on the date on which the limitation would have normally expired, but for the imposition of an injunction, an injunction should actually subsist, in order that Section 13(1) might apply. The view of the learned Judge to the contrary is not supported either by the plain terms of the section or by the format of similar provisions for excluding certain slice of time in the computation of limitation, which are to be found elsewhere in the Limitation Act.

5. I did not hear any arguments from learned Counsel for the respondents based either on the wording of the section or supported by any case-law to the opposite effect. The revision is accordingly allowed. The order of the executing Court is vacated. The Court is directed to dispose of the execution petition on merits.. In the peculiar circumstarces of this case, there will be no order as to costs.


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