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Kutti Nadar and ors. Vs. Swamikutty Nadar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1965)2MLJ575
AppellantKutti Nadar and ors.
RespondentSwamikutty Nadar and ors.
Cases ReferredBombay v. Amritlal Bhogilal and Co.
Excerpt:
- - even though it is made out that the high court failed to register the decree which it was bound to and the appellant in civil miscellaneous second appeal no. i am clearly of the view that for that purpose the decree of the trial court merged in the decree of the appellate court......of law arises in both the appeals and they may be dealt with together. in the suit out of which civil miscellaneous second appeal no. 100 of 1962 a.i.es a decree was passed by the trial court on 14th october, 1947. the trial court decree was registered under the provisions of the travancore registration act. an appeal against the decree was dismissed on 21st january, 1949. the appellate court's decree was also registered. a second appeal to the high court of travancore-cochin was filed in 1950. when the second appeal was pending, the indian registration act and the indian limitation act came into force in the state of travancore-cochin on 1st april, 1951. after the coming into force of the indian acts, the high court dismissed the second appeal confirming the decree of the courts.....
Judgment:

P.S. Kailasam, J.

1. The same question of law arises in both the appeals and they may be dealt with together. In the suit out of which Civil Miscellaneous Second Appeal No. 100 of 1962 A.I.es a decree was passed by the trial Court on 14th October, 1947. The trial Court decree was registered under the provisions of the Travancore Registration Act. An appeal against the decree was dismissed on 21st January, 1949. The appellate Court's decree was also registered. A Second Appeal to the High Court of Travancore-Cochin was filed in 1950. When the Second Appeal was pending, the Indian Registration Act and the Indian Limitation Act came into force in the State of Travancore-Cochin on 1st April, 1951. After the coming into force of the Indian Acts, the High Court dismissed the Second Appeal confirming the decree of the Courts below. The decree in Second Appeal was not registered. Now it is contended on behalf of the appellants in Civil Miscellaneous Second Appeal No. 100 of 1962 and the respondents in Civil Miscellaneous Second Appeal No. 86 of 1960 that, as Under the Travancore Registration Act a fee was compulsorily leviable along with the plaint and the decree was automatically registered, it should be taken that though the decree passed in the Second Appeal was not registered, the time for limitation should be taken as six years from the date of the appellate decree. Learned Counsel submitted that under Section 6 of the Part B States Laws Act III of 1951, the previous operation of any law repealed or anything duly done or suffered thereunder, or any right, privilege, obligation or liability acquired or incurred Under any law so repealed were not affected. The contention of the learned Counsel was that because of this enabling provision, the High Court of Travancore-Cochin was bound to register the appellate decree, even though the Indian Acts had come into force. It was also pointed out that the Second Appeal was preferred before the Indian Acts came into force and the necessary registration fee had also been paid. Section 6 of the Part B States Laws Act III of 1951 would have enabled the High Court to register the appellate decree and the decree-holder to ask the Court to Register the decree in spite of the Indian laws having come into force. But this was not done. The Indian Limitation Act provides a period of six years if the decree is registered; otherwise the period available is only three years. Even though it is made out that the High Court failed to register the decree which it was bound to and the appellant in Civil Miscellaneous Second Appeal No. 100 of 1962, was entitled to have the appellate decree registered, the decree in fact remained unregistered. The extended period of six years is available only if the appellate decree is registered.

2. It was contended that the decree which is sought to be executed is the trial Court's decree and as the trial Court's decree is registered, a period of six years from the date of the appellate decree should be taken as the period of limitation. This contention cannot be upheld, in view of the decisions of the Privy Council and the Supreme Court holding that the only decree that subsists after the appeal is the appellate Court's decree. In. Commissioner of Income-tax, Bombay v. Amritlal Bhogilal and Co. : [1958]34ITR130(SC) Gajendragadkar, J., as he then was, summed up the position thus:

There can be no doubt that, if an appeal is provided against an order passed by a Tribunal the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision, that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirmed the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the Tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement.

3. Rajagoplan, J., in Civil Miscellaneous Second Appeal No. 92 of 1959, had to consider a case in which the facts were similar, to the case under consideration. The learned Judge observed as follows:

I am clearly of the view that for that purpose the decree of the trial Court merged in the decree of the appellate Court. The only decree in the suit is the decree that the appellate Court granted, .and that alone is the decree that is thereafter capable of execution. In this case the decree copy of which was registered within the meaning of Article 182 merged in the decree of the Appellate Court which was not registered. The merger obviously did not impart to the decree of the Appellate Court the status of a registered decree which the merged decree had. The decree of the trial Court in this case was non est in law for purposes of columns (1) and (2) of Article 182 of the Limitation Act, and the fact that it was registered ceased to have any significance for purposes of applying the period of limitation prescribed by column (2) of Article 182. The period of limitation that applied to the decree capable of execution and factually under execution in this case was only three years as that decree was not registered.

4. I am in respectful agreement with the view expressed by the learned Judge.

5. In Civil Miscellaneous Second Appeal No. 86 of 1960, the decree by the trial Court was on 15th November, 1950, and by the appellate Court on 15th June, 1955, after the Act came into force on 1st April, 1951. In both the cases, the appellate enforceable decrees were not registered, and the execution petitions were filed three years after the date of the appellate decree. The time available is only three years, and as the petitions were filed more than three years after the date of the appellate decrees, the execution petitions are out of time.

6. In the result, Civil Miscellaneous Second Appeal No. 100 of 1962, is dismissed and Civil Miscellaneous Second Appeal No. 86 of 1960, is allowed. There will be no order as to costs. Leave granted in both.


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