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Thavasumuthu Nadar Vs. Ramasami Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1982)2MLJ51
AppellantThavasumuthu Nadar
RespondentRamasami Pillai and ors.
Cases ReferredMst. Parmeshri and Ors. v. Mst. Atti
Excerpt:
.....the 4th defendant as well as his legal representatives should measure 62 kalams of paddy to the plaintiff and his heirs for performance of 'kulithaligai' charity and if there is default for a continuous period of three years, the first plaintiff, first petitioner is entitled to execute the decree and recover possesion of the properties. 79, contended that in respect of each default for three continuous years the decree-holder gets a right to execute the decree and recover possession and it is always open to the decree-holder to waive or condone the earlier defaults in which case the limitation would not run from the default condoned or waived, but only from the default which the decree-holder treated as a default under the decree, and the execution petition having been filed on 28th..........let in to show that the 4th respondent committed default in paying the annuity and it is for the decree-holder (7th respondent herein) to establish how the execution petition filed is in time and as this has not been satisfactorily established, the matter should be remanded back to the executing court for fresh enquiry and disposal. the learned counsel for the 7th respondent decree-holder, relying on the decisions in maung sin v. ma tok (1927) 53 m.l.j. 22 : 54 i.a. 272 : , and mst. parmeshri and ors. v. mst. atti a.i.r. 1968 punj. 79, contended that in respect of each default for three continuous years the decree-holder gets a right to execute the decree and recover possession and it is always open to the decree-holder to waive or condone the earlier defaults in which case the.....
Judgment:
ORDER

P. Venugopal, J.

1. The fifth respondent in the execution petition has filed this civil revision petition. The first plaintiff filed a suit against defendants 1 to 4 and it resulted in a compromise decree, dated 27th February, 1941, by which the 4th defendant as well as his legal representatives should measure 62 kalams of paddy to the plaintiff and his heirs for performance of 'Kulithaligai' charity and if there is default for a continuous period of three years, the first plaintiff, first petitioner is entitled to execute the decree and recover possesion of the properties. The second petitioner is the legal representative of the deceased first petitioner. In a partition between the 4th respondent and his brother, the 8th respondent, the suit property was allotted to the share of the 5th respondent who has sold the same in favour of respondents 6 to 8. The second petitioner filed the execution petition alleging that the 4th respondent was giving the annuity in a reduced quantity and has stopped payment for the last four years, and hence the execution petition has been filed for recovery of possession of the property as per the terms of the compromise decree. The 5th respondent filed a counter contending that he is not a party to the compromise decree and he is not claiming any interest under the 4th respondent and he cannot be impleaded as the legal representative of the 4th respondent, and the second petitioner is not entitled to recover possession and the execution petition filed is barred by limitation. The 7th respondent also filed a counter that they claimed the properties only under the 5th respondent and they are not the legal representative of the 4th respondent and they are not intermeddlers of the estate of the 4th respondent and hence they cannot be impleaded as the legal representatives of the 4th respondent and the execution petition filed for recovery of possession is barred by limitation, and the decree is void and unenforceable. The executing Court overruled all the objections of the contesting respondents and held that the execution petition is not barred by limitation, and the second petitioner is entitled to recover possession of the property from respondents 5 to 8. Against this order of the executing Court, the 5th respondent has filed the civil revision petition.

2. The learned Counsel for the 5th respondent and the petitioner herein contended that the compromise decree is not binding on him and he is not a party to the decree and he cannot be impleaded as the legal representative of the deceased 4th respondent as he is not claiming interest in the properties through him. The learned Counsel for the 7th respondent contended that absolutely no evidence, has been let in to show that the 4th respondent committed default in paying the annuity and it is for the decree-holder (7th respondent herein) to establish how the execution petition filed is in time and as this has not been satisfactorily established, the matter should be remanded back to the executing Court for fresh enquiry and disposal. The learned Counsel for the 7th respondent decree-holder, relying on the decisions in Maung Sin v. Ma Tok (1927) 53 M.L.J. 22 : 54 I.A. 272 : , and Mst. Parmeshri and Ors. v. Mst. Atti A.I.R. 1968 Punj. 79, contended that in respect of each default for three continuous years the decree-holder gets a right to execute the decree and recover possession and it is always open to the decree-holder to waive or condone the earlier defaults in which case the limitation would not run from the default condoned or waived, but only from the default which the decree-holder treated as a default under the decree, and the execution petition having been filed on 28th August, 1975 is well within, time since the 4th defendant stopped payment after the compromise only four years prior to 28th August, 1975.

3. In Maung Sin v. Mo Tok (1927) 53 M.L.J. 22 : 54 I.A. 272 : , the decree directed payment of annuity and in default, delivery of the property to the decree-holder. It was contended that as no claim was made as to the possession of the property on default of payment during the earlier years after the decree, time commenced from the date of the earliest default and the claim for recovery of possession is barred by limitation. This contention was rejected and it was held that each instalment of annuity is a claim under the decree and each default gives rise to a right to recover property. In the decision reported in Mst. Parmeshri and Ors. v. Mst. Atti , the decree provided for supply of grain twice a year on instalment basis and in default it ordered possession of land. Execution was taken out for the first time after 8 years. It was held that each instalment as it fell due was a claim originating under the decree from the date when such claim arose, and the decree-holder was entitled to apply for delivery of possession on the occurrence of any subsequent default. The decree passed in the instant case consists of two parts. The first part is that the 4th defendant in the suit and his heirs for the purpose of 'kulithaligai' charity should pay to the plaintiff and his heirs 62 kalams of paddy in perpetuity. The second part of the decree is that if there is continuous default in payment of the paddy, the decree can be executed and possession recovered from the 4th defendant. The execution of the decree for recovery of possession is made contingent on a continuous default in payment of paddy for a period of three years. The decree does not provide that the option given to the decree-holder of obtaining possession of land on a default being made in payment for a continuous period of three years, was to be exercised only on the occurrence of the first default. As the decree for 62 kalams of paddy per year is in perpetuity, every time when there is default in payment of paddy for a continuous period of three years, a fresh right to execute the decree accrues to the decree holder. Each default for a continuous period of three years as and when it occurs, gives or confers on the plaintiff the right to execute the decree for recovery of possession. Article 136 of the Limitation Act provides that when the default in making the payment takes place, the execution petition should be filed within 12 years from that date. To construe Article 136 of the Limitation Act as to mean that the E.P. should be filed within twelve years from the date when the first default took place or when the earliest default occurred is not warranted by a plain reading of the Article. On the occasion of each default, the right to execute the decree and claim recovery of possession is conferred under the decree. The fact that on earlier occasions when there were similar defaults no E.P. was filed for recovery of possession will not take away the right of the plaintiff to ask for recovery of possession with reference to subsequent default. In the Privy Council case relied on by the learned Counsel, for the decree-holder-seventh respondent, the right to recover possession is contingent on the default being made for each year whereas in the instant case, the right to recover possession is contingent on the default being committed for each continuous default for a period of three years. Excepting this, there is no difference in the instant case and the Privy Council decision referred to supra. As admittedly the default in not paying the 62 kalams of paddy per year for a continuous period of three years has occurred, the decree-holder is entitled to recover possession. In this view, the execution petition filed cannot be said to be barred by time.

4. The learned Counsel for the petitioner contended that the petitioner is not claiming interest under the 4th defendant in the suit and he cannot be impleaded as the legal representative of the 4th defendant. In E.A. No. 843 of 1975, the petitioner was added as legal representative of the deceased 4th defendant and against this order Civil Revision Petition No. 2433 of 1976 was filed. The only contention urged in the civil revision petition was whether the second plaintiff has locus standi to maintain the execution petition, and this was directed to be considered by this Court in the order passed in Civil Revision Petition No. 2433 of 1976. So the question whether the petitioner is the legal representative of the deceased 4th defendant has already become final and conclusive as a result of the order passed in Civil Revision Petition No. 2433 of 1976, and the issue cannot be again re-agitated in this civil revision petition.

5. The order of the executing Court is accordingly confirmed and the civil revision petition stands dismissed, in the circumstances without costs.


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