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T.V.K. Chokkalinga Tevar Vs. Kailasa Tevar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported inAIR1956Mad238; (1956)2MLJ34
AppellantT.V.K. Chokkalinga Tevar
RespondentKailasa Tevar and ors.
Cases ReferredVenkata Subbayya v. Seshayya
Excerpt:
.....of the decree debts would be paid off thereby. , have held that it is not necessary that the money should come into the court as a result of the execution of a particular decree but it was sufficient if the money came in by the other processes as well. an application to the court for such a purpose and for payment out of the money is thus clearly necessary; the learned judge held that the record sufficiently satisfied the condition that the fact of payment should appear in the handwriting of the person making the same and that was sufficient to constitute the court as the duly authorised agent of the person liable to pay......15th december, 1944 the district judge passed an order directing the issue of cheque. it ran thus 'issue cheque for rs. 4,650 to mr. k.r.s.'. thus a cheque for rs. 4,650 was issued in favour of the advocate mr. k.r.s. on the affidavit filed by one of the decree-holders. now the question is whether the application for the issue of a cheque and the order passed thereon directing the issue of the cheque would amount to a step in aid of execution as contemplated under article 182(5) of the limitation act. the lower court has held that it could not be deemed to be a step-in-aid of execution and hence this appeal.4. it has been held by a full bench of this court in sankara v. sundara ayyar : air1943mad129 , that an application by a decree-holder for delivery of possession of the immovable.....
Judgment:

Govinda Menon, J.

1. This Appeal arises in execution of the decree in O.S. No. 2 of 1934 on the file of the District Court, East Tanjore at Nagapattinam. The decree-holders' application to execute the decree has been held to be barred by the lower Court on the ground that it was filed more than three years after the final order was passed on an earlier application. The facts giving rise to this litigation are as follows:

In O.S. No. 2 of 1934 a decree was passed against all the defendants of whom defendants 1 to 5 formed one group and defendants 6 and 7 another. On 24th April, 1934 there was an appeal against that but that was dismissed on 9th February, 1939. The first application for the execution of the decree was filed on 13th August, 1940 on which final order was passed on 20th October, 1942. The present application for execution directed against defendants 6 and 7 alone was filed on 23rd September, 1946 more than three years after final orders had been passed on the ealier application and the objection taken by the judgment-debtors that the application was barred was sought to be got over by the decree-holders stating that there was an earlier application for the issue of a cheque which should be construed as a step-in-aid of execution. The learned District Judge has now held that the earlier application for the issue of cheque would not amount to a step-in-aid of execution and, therefore since the present execution petition was filed more than three years after final orders had been passed on the earlier application it was barred by limitation.

2. How the application for cheque came to be ordered is in the following way. Against the same judgment-debtors there were other decrees in O.S. Nos. 48 of 1932, 43 of 1932 and a number of other suits as well and in all of them large sums of money were decreed in favour of the plaintiffs as against the present judgment-debtors and in execution of some of the decrees, the properties belonging to defendants 1 to 5 were the subject of attachment. At that time an application was filed by the second defendant in the present suit in the other proceedings stating that he and his relations have agreed to sell some of the attached properties and other lands in Swarnakkudi village in favour of one Ramanuja Mudaliar of Tiruyarur and permission of the Court was, therefore, requested for the same. The affidavit filed in support of the application by V.K.G. Kandaswami Thevar sets out the reasons why the application was made. In paragraph 5 of the affidavit it is stated that the second defendant and his brothers have negotiated for sale of 156 acres 71 cents as well as a few acres of their lands in the said village of Swarnakkudi which have not been attached to Sri G. Ramanuja Mudaliar of Tiruvarur for a sum of Rs. 94,000. There was a mortgage decree for Rs. 44,500 and a second mortgage for Rs. 6,500 over the said properties. It was therefore proposed to pay Rs. 51,000 towards the said encumbrances and Rs. 3,000 towards their share of sale expenses. It was agreed that defendants 2 and 5 should take only Rs. 4,174-8-0 for family expenses and for paying off sundry debts. The balance of the amount of Rs. 35,825-8-0 would be available to the decree-holders in the various suits mentioned by them. It was further alleged that the proposed sale was very advantageous to the debtors as well as the creditors as about fifty per cent, of the decree debts would be paid off thereby. Then the next statement is that they have made the proposal to many of the creditors who have approved of the same and given their consent in writing.

3. When the application supported by this affidavit came up before the Court an order was passed by the learned District Judge on 10th October, 1944 wherein he stated that in addition to the decree-holders in O.S. Nos. 48 of 1932 and 43 of 1932 other decree holders have filed their consent memos, agreeing to the terms, set out in the affidavit of the second defendant. One of the conditions was that with regard to the decree in O.S. No. 2 of 1934 a sum of Rs. 4,650 should be paid. The Court in passing the order held that permission to sell the properties privately has been granted on the ground that it was advantageous to all the parties and that a fair price had been procured. Accordingly a sum of Rs. 35,825-8-0 came into the Court out of which Rs. 4,650 was paid over to the present appellants. The application for cheque by the present appellants was on 25th November, 1944 but it was made not in O.S. No. 2 of 1934 but as explicitly stated in O.S. No. 43 of 1932. On 15th December, 1944 the District Judge passed an order directing the issue of cheque. It ran thus 'Issue cheque for Rs. 4,650 to Mr. K.R.S.'. Thus a cheque for Rs. 4,650 was issued in favour of the advocate Mr. K.R.S. on the affidavit filed by one of the decree-holders. Now the question is whether the application for the issue of a cheque and the order passed thereon directing the issue of the cheque would amount to a step in aid of execution as contemplated under Article 182(5) of the Limitation Act. The lower Court has held that it could not be deemed to be a step-in-aid of execution and hence this appeal.

4. It has been held by a Full Bench of this Court in Sankara v. Sundara Ayyar : AIR1943Mad129 , that an application by a decree-holder for delivery of possession of the immovable property purchased by him in a sale held in execution of a decree is a step-in-aid of the execution of the decree within the meaning of Article 182(5) of the Limitation Act, as also an application for the issue of cheque for payment out of money realised in execution of the decree is a step-in-aid of execution. Mr. Venkatadri for the appellants relies upon this decision for the contention that in the present case the application for the issue of cheque should be deemed to be one that was contemplated in the Full Bench decision cited. Having perused the judgment of the Full Bench we do not find any expression of opinion which help the case of the appellants entirely. But the learned Chief Justice who delivered the Judgment in the Full Bench case approved of the decision in Thangi Shettithi v. Duja Shetti (1917) 35 M.L.J. 575, where Spencer and Krishnan, JJ., have held that it is not necessary that the money should come into the Court as a result of the execution of a particular decree but it was sufficient if the money came in by the other processes as well. In that particular case what happened was that in order to set aside an ex parte decree a sum of money was deposited into Court as security and it was that money that was sought to be realised in execution of the decree. The learned Judges observed as follows:

That does not seem to be a valid distinction. The District Judge overlooked the fact that as the money was deposited only as security an order of the Court was necessry to make it available for payment towards the decree amount. An application to the Court for such a purpose and for payment out of the money is thus clearly necessary; and such an application is one in execution of the decree itself.

5. There have been cases holding the other view. For example in Balaguruswami Maicken v. Guruswami Naicken (1924) 48 M.L.J. 506, the learned Judges laid down as follows:

Where an amount of money is in Court to the credit of a suit and such amount has not been the proceeds of execution, an application for payment out cannot be said to be an execution application or an application in aid of execution. In such a case the plaintiff has only to apply to the Court for payment and the Court makes the payment without reference to the judgment-debtor in the suit. By asking for payment out of the amount in Court the plaintiff does not do anyting to aid the execution of the decree. Where money is realised in execution of the decree he has to ask the Court for an order to pay the money to him and the Court, after considering whether there are other claimants in respect of the amount, passes an order in favour of the applicant. Such an order is a step-in-aid of execution. But where the money is to the credit of the suit and all that is required of the plaintiff is to make an application for payment, it cannot be said that what he does is a step-in-aid of the execution of the decree.

These various decisions have been quoted. In this state of conflict it would have become necessary to ascertain whether the money could have come into the custody of the Court by execution of the decree or not. But we are relieved of the necessity of deciding that question because in the present case the application for the issue of cheque was made in O.S. No. 2 of 1934 and not in O.S. No. 48 of 1932. Article 182(5) of the Limitation Act definitely lays down that the application for execution or to take some step-in-aid of execution should be made in accordance with law to the proper Court. It would not be a proper Court if the intended step-in-aid of execution application is made to some other Court. That is what has been laid by Venkatarama Rao and Abdur Rahman, JJ., in Rama Subbayya v. Thimmiah (1914) 2 M.L.J. 754 the learned Judges observe as follows:

Applications to constitute a step-inlaid of execution have to be filed in the execution proceedings themselves and not in any other suit or proceeding, however intimately connected the latter might be with the proceedings of the former.

That being the case, we cannot say that a request to the Court to issue cheque made in some other suit can be called a step-in-aid of execution of the decree in O.S. No. 2 of 1934. Mr. Venkatadri for the appellants relies on the observations made in Baij Nauth Prosad v. Ghanshyam Das (1904) 8 C.W.N. 382. But we do not think that even if there are observations which help the contention of the appellants, still they should be preferred to the decisions of this Court which have not been dissented from anywhere. Under these circumstances, in our opinion, even if it could be held that money deposited into Court as a result of a private sale is in execution of the decree, on which point there is some doubt, it cannot be said that there was an application made to the proper Court which could be called a step-in-aid of the execution.

6. Learned Counsel for the appellants then contends that even if Article 182(5) would not apply Section 20 of the Limitation Act is applicable. How the learned Counsel avails himself of this section is that when the Court directed the issue of cheque for Rs. 4,650 in favour of the decree-holder the Court acted as the duly authorised agent of the judgment-debtor, viz., defendants 1 to 5 and therefore, the payment on account of the debt was made by a duly authorised agent of the judgment-debtors and so a fresh period of limitation shall be computed from the time when the payment was made. The question, therefore, is whether the Court is a duly authorised agent as defined in Section 20 of the Limitation Act. Observations in Chinnery v. Evans (1864) LR11 H.L. 1274 were relied on. We do not think that any payment was made in that case by the Court in the circumstances and under conditions envisaged or contemplated in the present case. Learned Counsel also invited our attention to certain observations of Sadasiva Ayyar, J., in Govinda Pillai v. Dasai Goundan : (1921)41MLJ423 where the learned Judge stated:

If a Sheriff of the Court making the payment can be considered an agent of the debtor, I see nothing in principle or reason which should prevent me from holding that a Court paying in the course of its duty the money due by the judgment-debtor is also a legally constituted agent of the judgment-debtor for that purpose.

7. But the facts of that case show that the decree-holder was able to produce before the Court copies of Court records showing that when Rs. 3,400 was paid out, the Judge signed a paper indicating that Rs. 3,400 was paid to the decree-holder in the presence of the Judge and through the Court. The learned Judge held that the record sufficiently satisfied the condition that the fact of payment should appear in the handwriting of the person making the same and that was sufficient to constitute the Court as the duly authorised agent of the person liable to pay. It seems to us, therefore, that to the facts of that case the provisions of Section 20 of the Limitation Act could be made applicable where as in the present case it is not possible to do so. The District Judge only ordered the issue of cheque and there was no payment made out by the Court. Nor was there anything signed by the Judge to the effect that money has been paid. Under these circumstances it seems to us that the observations in Govinda Pillai v. Dasai Goundan : (1921)41MLJ423 are distinguishable. But there is an observation of Jackson, J., in Venkata Subbayya v. Seshayya : (1926)51MLJ610 that a payment by Court cannot be construed as one made by the duly authorised agent within the meaning of Section 20 of the Limitation Act. What the learned Judge says is as follows:

The mere fact that the creditor moved the Court and obtained the money under attachment would satisfy the requirement of diligence. But whether it be logical or illogical the statute does seem to require the volition of the debtor or his agent in the matter. It must be strictly found that the judgment-debtor did exercise his volition or that the circumstances were such that his volition was neimer requisite nor relevant.

8. That being the case the learned Judge was of opinion that a payment by the Court cannot be construed as one made by the duly authorised agent within the meaning of Section 20 of the Limitation Act inasmuch as the mere fact that the Court held moneys belonging to the debtor's father could not constitute that Court the agent of the debtor in the absence of any communication with the debtor.

9. It seems to us that in the circumstances of the case the fact that the learned District Judge ordered issue of a cheque would not constitute him as the duly authorised agent of the debtor so as to bring the case within the ambit of Section 20 of the Limitation Act.

10. Both the points on which learned Counsel for the appellants placed great reliance thus failing the decision of the lower Court has to be upheld and this appeal dismissed with costs.


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