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Damodaraswami Naicker Vs. Sundararajan and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1972)1MLJ346
AppellantDamodaraswami Naicker
RespondentSundararajan and ors.
Cases ReferredVenkatasubbayya v. Seshayya
Excerpt:
- .....court, udumalpet on 9th july, 1956 against the appellant herein. the first e.p. no. 986 of 1957 filed by chinnamuthu naicker was dismissed on 12th october, 1957, but the attachment was directed to continue for two months. the second e.p. no. 1515 of 1957 filed by him was similarly dismissed on 25th march, 1958, but here again there was a direction that the attachment would continue for three months. on 24th april, 1966, chinnamuthu naicker died; and on 6th october, 1966the respondents herein as the legal representatives of chinnamuthu naicker have filed the present e.p. no. 546 of 1966 seeking to come on record as the legal representatives of the decree-holder and seeking permission to execute the decree by attachment and sale of some properties. the amount claimed was rs. 1,598.06.3......
Judgment:

S. Ganesan, J.

1. The judgment-debtor Damodarasami Naicker is the appellant herein and he is aggrieved that the Courts below have upheld the contention of the respondents-petitioners that E.P. No. 546 of 1966 filed by the latter on 6th October, 1966 is in time.

2. One Chinnamuthu Naicker whose legal representatives are the respondents herein obtained a decree in O.S. No. 434 of 1955 on the file of the District Munsif's Court, Udumalpet on 9th July, 1956 against the appellant herein. The first E.P. No. 986 of 1957 filed by Chinnamuthu Naicker was dismissed on 12th October, 1957, but the attachment was directed to continue for two months. The second E.P. No. 1515 of 1957 filed by him was similarly dismissed on 25th March, 1958, but here again there was a direction that the attachment would continue for three months. On 24th April, 1966, Chinnamuthu Naicker died; and on 6th October, 1966the respondents herein as the legal representatives of Chinnamuthu Naicker have filed the present E.P. No. 546 of 1966 seeking to come on record as the legal representatives of the decree-holder and seeking permission to execute the decree by attachment and sale of some properties. The amount claimed was Rs. 1,598.06.

3. Admittedly the present execution application will on the face of it stand barred; but the respondents plead that the proceedings taken by the decree-holder Chinnamuthu Naicker in another suit O.S. No. 51 of 1958 for recovering the moneys due under the decree in O.S. No. 434 of 1,955, as steps-in-aid, would save the present Execution Petition from the bar of limitation.

4. In E.P. No. 311 of 1958 in O.S. No. 51 of 1958 on the file of the District Munsif's Court, Udumalpet filed by the decree-holder in that suit in execution of the decree obtained against the appellant herein, the properties of the appellant were purchased by one Ramaswami Goundan for Rs. 4,050, and on that date E.P. No. 155.1 of 1957 filed by Chinnamuthu Naicker in O.S. No. 434 of 1955 was pending. Chinnamuthu Naicker thereupon filed an application in E.P. No. 311 of 1958 in O.S. No. 51 of 1958 for rateable distribution; and rateable distribution was ordered on 10th August, 1960. The rateable statement was filed on 12th April, 1961 in the said execution application by Chinnamuthu Naicker along with the other creditors and the appellant and it was found that Chinnamuthu Naicker was entitled to Rs. 512.68 towards his decree in O.S. No. 434 of 1955 (vide Exhibit A-3 dated 12th April, 1961). On 1st June, 1961 Chinnamuthu Naicker applied, for a cheque in E.P. No. 1138 of 1961 in E.P. No. 311 of 1958 in O.S. No. 51 of 1958. (Vide Exhibit A-1). Cheque was ordered on 6th June, 1961 and was issued on 7th June, 1961.

5. It is contended on behalf of the respondents that E.P. No. 311 of 1958 filed by Chinnamuthu Naicker in O.S. No. 51 of 1958 and E.P. No. 1138 of 1961 filed by Chinnamuthu Naicker in E.P. No. 311 of 1958 would constitute steps-in-aid of execution of the decree in O.S. No. 434 of 1955, that limitation for the purpose of execution of the decree in O.S. No. 434 of 1955 must be reckoned from 7th June, 1961, the date when the cheque was issued in E.P. No. 1138 of 1961 in E.P. No. 311 of 1958 and that, as the Limitation Act of 1963 came into force on 1st January, 1964, the present execution application is saved from the bar of limitation.

6. The Courts below have upheld the respondents' contention; but I am satisfied that the execution proceedings taken by Chinnamuthu Naicker in E.P. No. 311 of 1958 and E.P. No. 1138 of 1961 on O.S. No. 51 of 1958 having been taken in collateral proceedings, cannot in law properly constitute steps-in-sid of execution of the decree in O.S. No. 434 of 1955, that limitation for the purpose of execution of the decree in O.S. No. 434 of 1955 must be reckoned from 7th June, 1961, the date when the cheque was issued in E.P. No. 1138 of 1961 in E.P. No. 311 of 1958 and that, as the Limitation Act of 1963 came into force on 1st January, 1964, the present execution application is saved from the bar of limitation.

7. The Courts below have upheld the respondents' contention; but I am satisfied that the execution proceedings taken by Chinnamuthu Naicker in E.P. No. 311 of 1958 and E.P. No. 1138 of 1961 in O.S. No. 51 of 1958 having been taken in collateral proceedings, cannot in law be properly construed as steps-in-aid contemplated by Article 182(5) of the Limitation Act of 1908. The proper test for deciding whether any proceeding taken by the decree-holder constitutes a step-in-aid of execution of the decree is whether the step in question is calculated to promote, advance or accelerate the execution of the decree. It must be a step which, by itself, must give an independent and. fresh start to or mark a new and effective stage in the execution proceedings. It is now well established that an application for a cheque in rateable distribution proceedings would amount to a step-in-aid. But Article 182(5) clearly lays down that the application in question must be made in accordance with law to the proper Court for taking a step-in-aid of the execution of the decree.

8. In Chockalinga Thevar v. Kailasa Thevar : AIR1956Mad238 , a Division Bench of this Court has laid down the law on this subject in the following terms:

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 Jaw 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. It has to be filed in the execution proceedings themselves and not in any other suit or proceedings, however intimately connected, the latter might be with the proceedings of the former. A request by the decree-holder to the Court to issue a cheque in his favour in some other suit cannot beheld to be a step-in-aid of execution so as to save limitation for execution of a decree in another suit, though decrees in both the suits are in favour of the same decree-holder.

The learned Judges have quoted, with approval the following observations of another Division Bench of this Court in Ramasubbayya v. Thimmich : (1941)2MLJ754

Application to constitute steps-in-aid of execution have to be filed in the execution proceedings themselves and not in any other suit or proceedings, however intimately connected the latter might be with the proceedings of the former.

9. The legal position so far as this Court is concerned is authoritatively concluded by these two decisions; and it is therefore clear that the applications made by Chinnamuthu Naicker, the decree-holder in O.S. No. 434 of 1955 for rateable distribution and for the issue of a cheque in O.S. No. 51 of 1958 being steps taken in collateral proceedings will not be of any avail to the respondents herein for the purpose of saving the present execution 'application from the bar of limitation.

10. It is however urged by the learned Counsel for the respondents for the first time before this Court that the present execution application will be saved by the provisions of Section 19 of the Limitation Act of 1963. It is contended that the payment of money by the Court through the cheque would amount to a payment by the duly authorised representative of the appellant-judgment-debtor. I accept the contention.

11. In Govindaswami Pillai v. Dasai Goundan : (1921)41MLJ423 , a Division Bench of this Court had applied the principle laid down in Chinnery v. Evans (1864) 2 H.L.C. 115, that any payment made by a receiver in pursuance of the order is payment in law by the legal agent of the person liable to pay, to a case where purchase-money under the Land Acquisition Act was deposited into Court by Government to the credit of the suit and a decree-holder-mortgagee by consent of the judgment debtor drew out the sum in satisfaction of his decree. Coutts-Trotter, J., had laid down the following formula:

If a debtor's assets are so placed, either by his; own act or by operation of law, that, if some one other than he alone can release them for the purpose of making payments due from him, then the act of that other in operating upon the debtor's assets must be treated as the act of the debtor himself, the volition of the debtor in such a case being neither requisite nor relevant.

The above formula was accepted by Jackson, J., in Venkatasubbayya v. Seshayya : AIR1927Mad80 , though on facts he found that the formula would not apply to that case. In O.S. No. 6 of 191 la certain sum was deposited to the credit of the plaintiff A; and the sum was attached before judgment by one B who filed a suit O.S. No. 57 of 1918 against C, the son of A on a promissory note executed by A. After obtaining a decree in O.S. No. 57 of 1918, B applied under Order 21, Rule 56 of the Civil Procedure Code to have the amount deposited in O.S. No. 6 of 1911 paid over to him and the same was paid to him. Jackson, J., on the facts held that the payment by Court of the amount to B cannot be construed as one made by the duly authorised agent of C within the meaning of Section 20 of the Limitation Act of 1908 inasmuch as the Court held moneys of A and not C the debtor and that the payment therefore cannot constitute the Court the agent of C the debtor, in the absence of any communication with the debtor.

Jackson, J., had observed thus:

Whether it be logical or illogical the statute does seem to require the volition of the debtor or his agent in this matter and it must be strictly found that the judgment-debtor did exercise his volition or that the circumstances were such that his volition was neither requisite nor relevant.

12. I am satisfied in this case that the Court ,when it issued the cheque which amounts to payment out, in discharge of its duty, of the money belonging to the appellant herein, had acted as the duly authorised agent of the appellant to make the payment on his behalf and that, as the cheque had been signed by the Court, the Court would be deemed to be, in respect of the payment, the duly authorised agent of the appellant-judgment-debtor within the meaning of Section 19 of the Limitation Act of 1963.

13. In the result, the appeal is dismissed; but, under the circumstances, without costs.


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