Skip to content


T.P. Arumugha Bakthar Vs. K. Narasimha Iyengar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1962)1MLJ355
AppellantT.P. Arumugha Bakthar
RespondentK. Narasimha Iyengar and anr.
Cases ReferredKunhi v. Seshagiri I.L.R.
Excerpt:
.....well settled now that attachment of a decree under the provisions of order 21, rule 53, does not operate as stay of execution of the attached decree, to bring it within the scope of section 15 of the limitation act. therefore, although an attachment would operate as a stay to the extent that the decree-holder cannot execute the decree for his own benefit, he as well as the holder of the decree sought to be executed may both apply for execution under sub-rule (2). it should be noted that no question of the application of section 15 of the limitation act arose for determination in that case......terms provides for the execution of the attached decree either at the instance of the attaching decree-holder or the holder of the attached decree. the effect of the attachment in this case was not that the appellant was prohibited from executing or seeking the execution of the decree in o.s. no. 17 of 1954, but that he was in fact prevented from realising the money due under that decree for his benefit without first satisfying the claims of the second respondent who has obtained attachment of the decree.5. in rangaswami chetti v. thangavelu chetti i.l.r. (1919) mad. 637 the plaintiff attached a book debt in 1913. the debt was payable in august, 1911. subsequently the attached book debt was brought to sale and purchased by the plaintiff himself and he instituted the suit to recover.....
Judgment:

Rajagopalan, J.

1. The appellant obtained a money decree against the first respondent in O.S. No. 17 of 1954 on 30th August, 1955. The second respondent obtained a money decree against the appellant in O.S. No. 8 of 1954 on the file of the same Court on 7th September, 1955. In E.P. No. 123 of 1957, the second respondent applied for execution of the decree in O.S. No. 8 of 1954 by attaching the decree in O.S. No. 17 of 1954. The second respondent also applied simultaneously for the issue of a prohibitory order under Order 21, Rule 46, Civil Procedure Code. The attachment was ordered and the prohibitory order was issued on 16th November, 1957. The attachment of the decree in O.S. No. 17 of 1954 was made absolute on 14th December, 1957, and E.P. No. 123 of 1957 was closed. The second respondent did not take any further steps to execute the decree in O.S. No. 17 of 1954. On 24th September, 1958, the appellant filed E.A. No. 373 of 1958 seeking permission to execute the decree in O.S. No. 17 of 1954 and obtained that permission on nth October, 1958. The appellant then filed E.P. No. 141 of 1958 on 14th October, 1958, for execution of the decree in O.S. No. 17 of 1954. The plea of the first respondent, judgment-debtor in O.S. No. 17 of 1954, that the execution petition filed on 14th October, 1958, more than three years after the date of the decree, 30th August, 1955, was barred by limitation was upheld by the Courts below, and hence this Second Appeal.

2. To save the apparent bar of limitation the learned Counsel for the appellant relied on Section 15 of the Limitation Act, and independently of that on Order 21 Rule 53, Civil Procedure Code and the proceedings taken by the second respondent who sought and obtained attachment of the decree in O.S. No. 17 of 1954.

3. Section 15(1) of the Limitation Act provides:

In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or 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.

4. Section 15 of the Limitation Act cannot apply, as the attachment of the decree in O.S. No. 17 of 1954 under the provisions of Order 21, Rule 53, Civil Procedure Code did not stay the execution of that decree. The attachment that was ordered on 16th November, 1957 and made absolute later was not an injunction or order staying execution of that decree within the meaning of Section 15. Order 21, Rule 53(2), Civil Procedure Code, in express terms provides for the execution of the attached decree either at the instance of the attaching decree-holder or the holder of the attached decree. The effect of the attachment in this case was not that the appellant was prohibited from executing or seeking the execution of the decree in O.S. No. 17 of 1954, but that he was in fact prevented from realising the money due under that decree for his benefit without first satisfying the claims of the second respondent who has obtained attachment of the decree.

5. In Rangaswami Chetti v. Thangavelu Chetti I.L.R. (1919) Mad. 637 the plaintiff attached a book debt in 1913. The debt was payable in August, 1911. Subsequently the attached book debt was brought to sale and purchased by the plaintiff himself and he instituted the suit to recover that debt on 15th March, 1915. The question was whether the claim was within time. Seshagiri Ayyar, J., observed at page 641:

The first contention raised by the learned vakil for the appellant before us was that Section 15 of the Limitation Act saved the bar because the attachment was pending between November, 1913 and February, 1915. This contention must be overruled. There is the direct decision of the Allahatad High Court in Shib Singh v. Sita Ram I.L.R. (1890) All. 76, to the effect that at attachment is not covered by the expression 'an injunction or order' in Section 15 of the Limitation Act. The Judicial Committee in Beti Maharani v. The Collector of Etawah L.R. (1894) 24 IndAp 31 : I.L.R. 17 All. 198, held that in the case of an attachment before judgment Section 15 will not save the bar. In that decision they expressly approve of the principle enunciated in Shib Singh v. Sita Ram I.L.R. (1890) All. 76. In Shunmugam v. Moidin I.L.R. (1884) Mad. 229, it seems to have been suggested that the prohibitory order issued during the attachment would come within the meaning of Section 15. That dictum cannot be regarded as good law in the face of Beti Maharani v. The Collector of Etawah (1894) L.R. 24 IndAp 31 : I.L.R. 17 All. 198.

In Rajitagiripathy v. Bavani Sankaran : AIR1924Mad673 where the attachment of the decree was before the attaching creditor obtained judgment, the learned Judges referred to Rangaswami Chetti v. Thangavelu Chetti I.L.R. (1919) Mad. 637 and pointed out that

in that case however the attachment was of a book debt and it is clear that the attachment of a book debt does not operate as an injunction within the meaning of Section 15 of the Limitation Act.

The learned Judges observed further:

When a decree is attached the form of attachment is given in Appendix E, Forms Nos. 22 and 23, and, in accordance with those Forms, there would not really be an injunction against execution, for the attaching decree-holder can execute the decree himself.

But on the basis that in the case before them the attachment was not by a decree-holder but it was an attachment before judgment, the learned Judges came to the conclusion:.the order issued by the Court attaching the decree absolutely prohibited the execution of the decree by anybody....

and Section 15 of the Limitation Act was held to apply. The learned Judges made it clear that Section 15 would not apply where the attachment is of a decree in execution of a decree obtained by the attaching creditor.

6. It should therefore be taken as well settled now that attachment of a decree under the provisions of Order 21, Rule 53, does not operate as stay of execution of the attached decree, to bring it within the scope of Section 15 of the Limitation Act.

7. The learned Counsel for the appellant referred to the observations of Chagla, C.J., in Mahadeo v. Janaksingh : AIR1954Bom251 the learned Chief Justice observed:

But whatever the position of the judgment-debtor of the decree attached might be, it is clear that as far as the holder of the decree attached is concerned, an order passed under Sub-rule (1) of Rule 53 must operate as a stay of execution. He would be prevented from executing the decree and receiving from his judgment-debtor the amount due under the decree, and the stay can only be got over provided the conditions of executing the decree laid down in Sub-rule (2) are carried out, and that is that he must make an application for execution and the net proceeds in satisfaction of the decree are applied to the credit of the decree sought to be executed.

The learned Chief Justice further explained:

Therefore, although an attachment would operate as a stay to the extent that the decree-holder cannot execute the decree for his own benefit, he as well as the holder of the decree sought to be executed may both apply for execution under Sub-rule (2).

It should be noted that no question of the application of Section 15 of the Limitation Act arose for determination in that case.

8. The appellant cannot claim the benefit of Section 15 of the Limitation Act.

9. The next question is, whether the proceedings taken by the second respondent in E.P. No. 123 of 1957, to execute his decree in O.S. No. 8 of 1954, can be availed of by the appellant to save E.P. No. 141 of 1958 from the bar of limitation. The learned Counsel for the appellant contended that, since Order 21, Rule 53(3), Civil Procedure Code declared that the attaching decree-holder was the representative of the holder of the attached decree, proceedings taken by the second respondent in E.P. No. 123 of 1957 should be viewed as steps-in-aid of the execution of the decree in O.S. No. 17 of 1954, the benefit of which the appellant could claim, though he himself did not take those steps-in-aid. No doubt there can be a step-in-aid of execution even without an application for execution. In Ayi v. Solai Gounddn : AIR1945Mad139 , a Full Bench of this Court reaffirmed the principle laid down in Kunhi v. Seshagiri I.L.R. (1882) Mad. 141. But while E.P. No. 123 of 1957 was both an application for execution and a step-in-aid of execution of the decree in O.S. No. 8 of 1954, it did not constitute a step-in-aid of execution of the decree in O.S. No. 17 of 1954. The learned Counsel for the appellant referred to Nukamma v. Bansayya : (1946)2MLJ303 . In that case the plaintiff was entitled to a certain sum from the judgment-debtor under the decree. The plaintiff however was under a liability under the same decree to pay to the Government the Court-fee that was payable on the plaint. The decree was dated 23rd March, 1939. On 9th November, 1939, the Government filed an execution petition for recovering the amount of the Court-fee. The decree-holder and the judgment-debtors were made parties to it, and attachment of the decree was ordered. The petition however was closed on 21st March, 1940. The Government filed another execution petition on 22nd March, 1943, and the decree was again attached after notice to all the parties. The plaintiff decree-holder next filed an execution petition on 20th September, 1953. The learned Judges held that the petitions for execution filed by the Government on 9th November, 1939 and 22nd March, 1943 were applications for the execution of the decree and enured also for the benefit of the plaintiff decree-holder. In coming to that conclusion the learned Chief Justice expressly rested his decision thus:

It is not necessary for this Court to decide the question whether the applications filed by the Government for the purpose of realising the money due to it by way of stamp duty are steps-in-aid-of execution within the meaning of Article 182, because we accept the appellant's contention that the applications for execution filed by the Government are applications for the execution of the decree itself and therefore enure for the benefit of the plaintiff.

There is nothing in this decision to support the contention of the learned Counsel for the appellant, that E.P. No. 123 of 1957 should be viewed as a step-in-aid taken in execution of the decree in O.S. No. 17 of 1954.

10. The principle laid down in Kunhi v. Seshagiri I.L.R. (1882) Mad. 141, could have covered E.A. No. 373; of 1958. That was a step-in-aid of execution of the decree in O.S. No. 17 of 1954, though it was not itself an application for execution. But E.A. No. 373 of 1958 was filed only on 24th September, 1958, more than three years of the date of the decree, 30th August, 1955. The principle of Kunhi v. Seshagiri I.L.R. (1882) Mad. 141, Cannot be extended to treat E.P. No. 123 of 1957 as a step-in-aid of the execution of the decree in O.S. No. 17 of 1954 taken by a person entitled to take such a step-in-aid.

11. The Courts below were right in dismissing E.P. No. 141 of 1958. This Civil Miscellaneous Second Appeal fails and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //