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Kanniammal Vs. Balakrishna Tharvady and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad557
AppellantKanniammal
RespondentBalakrishna Tharvady and ors.
Cases ReferredNegendranath De v. Sureshchandra De
Excerpt:
- - the appellant here was the respondent in the execution petition and the partially unsuccessful defendant in a suit in the city civil court. the date of the decree in the city civil court was 30th september 1929 and the date of the appellate decree was 22nd august 1932. the execution petition now under appeal is dated 18th march 1933. it is therefore well within three years of the date of the appellate decree. that, courts are not permitted to take up that attitude is, i think, clearly shown by the recent decision of the privy council in negendranath de v. but in construing such provisions, equitable considerations are out of place, and the strict grammatical meaning of the words is, their lordships think, the only safe guide......years having elapsed since the date of the trial court's decree and contended that as far as the relief granted this was not a decree' within the meaning of final decree or order of the appellate court' which appear in article 182(2), limitation act. it was contended both in the lower court and here that in the present case it is not right to say that there was only one decree because upon a fair interpretation of the word, although appearing to be one decree, there was in fact more than one; that every relief claimed in the suit was in itself a relief which, if granted, would have been a separate decree although embodied in one decree; that it is open in such cases as this for the executing court, although it has only one decree before it and although the appellate court has had only.....
Judgment:

Beasley, C.J.

1. This is an appeal against an order of the learned City Civil Judge in execution proceedings. The appellant here was the respondent in the execution petition and the partially unsuccessful defendant in a suit in the City Civil Court. The, suit was by the plaintiffs as trusties of a Devasthanam claiming several reliefs in respect of certain premises and ground, namely, No. 450, Mint Street, Madras. The reliefs claimed were : a declaration that the property belonged absolutely to the plaintiffs and an order for delivery of possession of the same from the defendant, the appellant here; a mandatory injunction directing the defendant to pull down and remove the wall ZY abutting the doorway D and window W in the plan; a perpetual injunction against the defendant preventing the flow of light and air through the openings at D and W; and the right of passage to EFGH across the open space; the right to take water from a certain tap and to use the wall and latrine marked in the plan and also the right to drain the water from No. 450 through No. 451, Mint Street, into the Mint Street. The learned City Civil Judge granted only part of the plaintiffs' claim. He gave a decree declaring that the plaintiffs were entitled to an easement of light and air through the points W and D marked in the plan attached-rand that was what they claimed - and ordering the defendant to make a cutting in her wall marked XY in the plan opposite to the points W and D in such a fashion that sufficient light and air might pass into the plaintiffs' house through the window W and another window of the same proportion at D. The rest of the plaintiffs' suit was dismissed and each party was ordered to bear their own costs.

2. An appeal was presented by the plaintiffs against the trial Court's refusal to grant the other reliefs asked for in the plaint and obviously, having got the declaration that they were entitled to one of the easements claimed, it was not necessary to appeal against that part of the trial Court's order. The date of the decree in the City Civil Court was 30th September 1929 and the date of the appellate decree was 22nd August 1932. The execution petition now under appeal is dated 18th March 1933. It is therefore well within three years of the date of the appellate decree. The appellant here who Was the respondent in the lower Court objected in the lower Court that the plaintiffs, the petitioners in the execution petition, were not entitled to execute the decree directing her to make a cutting in her wall sufficient to give the plaintiffs' house light and air on the ground that that right was barred by limitation more than three years having elapsed since the date of the trial Court's decree and contended that as far as the relief granted this was not a decree' within the meaning of final decree or order of the appellate Court' which appear in Article 182(2), Limitation Act. It was contended both in the lower Court and here that in the present case it is not right to say that there was only one decree because upon a fair interpretation of the word, although appearing to be one decree, there was in fact more than one; that every relief claimed in the suit was in itself a relief which, if granted, would have been a separate decree although embodied in one decree; that it is open in such cases as this for the executing Court, although it has only one decree before it and although the appellate Court has had only one decree before it, to examine into the matter carefully and see whether the reliefs which were asked for in the plaint could have been granted separately, that is to say, that relief A could be granted irrespective of relief B or relief B irrespective of relief G; that, where it is discovered that separate reliefs are asked for in a plaint and the decree gives separate reliefs, the decree, although nominally one and on one piece of paper and called a decree, must be treated as several decrees and that, where a plaintiff or a defendant appeals only against the Court's order with regard to one relief, it is not a decree as regards the other reliefs within the meaning of Article 182(2), Limitation Act.

3. It seems to me that in this case and indeed in all cases what Article 182(2) refers to is a decree : viz. one decree and that it is not permissible for Courts in execution to look into the matter and say that, as there are several reliefs which are severable, the decree, although nominally one decree, consists of several decrees. That, Courts are not permitted to take up that attitude is, I think, clearly shown by the recent decision of the Privy Council in Negendranath De v. Sureshchandra De 1932 P.C. 165. There the Privy Council have laid down in the plainest terms that a strict meaning must be given to the word 'decree.' It was contended amongst other things before them that one of the tests to be applied in seeing whether a decree under appeal comes within the terms of Clause 2 of Article 182 is that the appeal must be one in which the whole decree is imperilled. After a citation of certain decisions of the Indian High Courts in which differences of opinion were manifested, their Lordships say on p. 334 (of 63 M.L.J.):

Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon the plain words of the Article: 'Where there has been an appeal time is to run from the date of the decree of the appellate Court. There is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions, equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide.

4. In the present case, even if it were permissible to consider the matter from equitable points of view, certainly there are none here because the appellant is the judgment debtor. Their Lordships go on to say:

It is at least an intelligible rule that so long as there is any question sub-judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage.

5. It is quite plain to me that, if there is a decree giving some reliefs and denying others and the plaintiff or the defendant appeals against either the refusal to grant a relief sought for or against a relief being granted and does not appeal with regard to other reliefs, the observations of the Privy Council apply with very great force. There is still a matter which has been decided in the trial Court which is sub-judice when an appeal is taken to an appellate Court against part of the lower Court's judgment and if that is so, then the successful plaintiff is not to be compelled, as their Lordships of the Privy Council point out, to pursue the thorny path of execution relating to any of the reliefs granted until the matter which is sub-judice has finally been decided in the appellate Court. This decision of the Privy Council to which I have just referred seems to me to be directly in point. If that is so, then limitation started to run so far as the trial Court's decree was concerned from the date of the appellate decree. That, as I have stated before, was 22nd August 1932. Hence the execution petition, the subject of this appeal, was presented within time. The appeal must, therefore be dismissed with costs.

Cornish, J.

6. I am of the same opinion.


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