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K.S. Ramaswami Iyer Vs. S.V. Krishnier and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtChennai High Court
Decided On
Reported in(1957)2MLJ116
AppellantK.S. Ramaswami Iyer
RespondentS.V. Krishnier and ors.
Excerpt:
- .....182 of the limitation act which provides for a period of six years when a certified copy of a decree is registered. the learned subordinate judge agreed with the contention of the decree-holder and allowed the execution to proceed. the 13th respondent in the e.p. filed an appeal to this court, c.m.a: no. 415 cf 1951. it came on for disposal before mack, j., and before the learned judge the point of limitation was again pressed on behalf of the appellant. the learned judge held against the appellant on two grounds viz., (1) that the provision in the second column of article 182 of the limitation act for a period of six years for the execution of a registered decree would apply to this case; and (2) that the respondent-decree-holder would be entitled to the benefit of section 14,.....
Judgment:

Rajamannar, C.J.

1. This is an appeal against the judgment of Mack, J.,in C.M.A. No. 415 of 1951. It arifes out of certain proceedings before the Debt Conciliation Board, Kumbakonam. On 12th April, 1942, an agreement was reached between a creditor of the 13th respondent in E.P. No. 354 of 1949 on the file of the Subordinate Judge of Madurai and the 13th respondent, in and by which it was provided that a sum of Rs. 1,140 should be paid to the creditor and the said amount was charged on property belonging to the debtor. Under Section 14(2) of the Debt, Conciliation Act, the said agreement was directed to be registered and it was accordingly registered on 18th April, 1942. Under Section 14(2) on such registration the agreement takes effect as if it were a decree of a civil Court and executable as such.

2. The creditor, in whose favour the agreement was made, assigned her rights to one Krishna Iyer, the contesting respondent in this appeal. The assignment in his favour was recognised in the Kumbakonam Sub-Court on 3rd March, 1944. It is common ground that the said Krishna Iyer filed several petitions in the Kumbakonam Sub-Court for transmission of this decree to the Sub-Court, Madurai, within whose jurisdiction the property charged was situate. Unfortunately, though transmission was ordered by the Kumbakonam Sub-Court, no steps were apparently taken for proceeding with the further execution till eventually the contesting respondent filed E.P. 238 of 1948 in the Sub-Court, Madurai, after the decree had been transmitted to that Court by the Sub-Court, Kumbakonam. Then the appellant took the objection that the execution petition was not maintainable because the Sub-Court, Kumbakonam, had no jurisdiction even to transmit the decree to the Sub-Court, Madurai, for execution. This objection was upheld and the E.P. was dismissed. Thereupon the re: pondent filed E.P. 354 of 1949 in the Sub-Court, Madurai, on 17th January, 1949. He also filed an appeal against the order dismissing E.P. 238 of 1948. In the appeal, the learned District Judge of Madurai held that though the Sub-Court, Kumbakonam, had no jurisdiction to entertain the application for transmission of the decree, the E.P. 238 of 1948 might itself be treated as an indepedent execution petition. The substantial objection to E. P' 354 of 1949 was that it was barred by limitation.

3. The agreement had been registered on 18th April, 1942 and it provided for a period of nine months for the payment of the debt. E.P. 238 of 1948 was filed on 8th March, 1948, that is beyond three years but within six years of the date of the agreement. The application out of which this appeal arises was filed within six years of the period fixed for payment under the agreement. On behalf of the assignee-decree-holder it was contended before the learned Subordinate Judge of Madurai that he was entitled to the benefit of the provision in the second column of Article 182 of the Limitation Act which provides for a period of six years when a certified copy of a decree is registered. The learned Subordinate Judge agreed with the contention of the decree-holder and allowed the execution to proceed. The 13th respondent in the E.P. filed an appeal to this Court, C.M.A: No. 415 cf 1951. It came on for disposal before Mack, J., and before the learned Judge the point of limitation was again pressed on behalf of the appellant. The learned Judge held against the appellant on two grounds viz., (1) that the provision in the second column of Article 182 of the Limitation Act for a period of six years for the execution of a registered decree would apply to this case; and (2) that the respondent-decree-holder would be entitled to the benefit of Section 14, Sub-section (2) of the Limitation Act. He therefore dismissed the appeal.

4. Mr. S. Ramachandra Ayyar, learned Counsel for the appellant, 13th respondent in the E.P., canvassed the correctness of both these findings of the learned Judge. As regards the first point, viz., the applicability of the provision which provides for a fix years' period for the execution of a registered decree, we agree with the learned Counsel for the appellant that it will not apply to this case. It is clear that under Section 14(2) of the Debt Conciliation Act what happens is that an agreement which is made under Sub-section (1) of Section 14 is registered under the Indian Registration Act. After such registration, the agreement takes effect as if it were a decree of a civil Court and is executable as such. It is obvious that even after registration it remains an agreement. It is only notionally that it is made executable as if it were a decree of a civil Court and to that extent the provisions of the Limitation Act applicable to the execution of decrees would equally apply to the case. But it cannot be said that there is a decree of a civil Court which has been registered. Mr. Jagadisa Ayyar, learned Counsel for the respondent, contended that substantially it would not make any difference if a decree is passed and subsequently that decree is registered, or if, before the particular agreement takes; effect as a decree, the agreement has to be registered. In any event, by the time execution proceedings are taken, there is, for all practical purposes, a registered decree. At first sight, the contention appears plausible. But the fallacy consists in overlooking the fact that at no time does this agreement, even after registration, cease to be an agreement. It is only executable as if it were a decree of a Civil Court. Anything which happened before it attains that status cannot, by a fiction, be transposed to a period subsequent to the attainment of that status.; No authority was cited to us in support of the respondent's contention. Mack, J., was inclined to think that the distinction was very technical and that the fact of registration of an agreement has the effect of extending the normal period of limitation from three years to six years. With respect we do not agree with him. The provisions of the Limitation Act have to be strictly construed and they cannot be extended by analogy or on principle. The second column of Article 182 clearly speaks of registration of a certified copy of the decree and not registration of any other document. There is no such registered decree in this case.

5. We however think that the respondent would be entitled to invoke the assistance of Section 14(2) of the Limitation Act on the ground that he had been prosecuting in good faith, in the Sub-Court of Kumbakonam, proceedings in execution which in law that Court was not competent to entertain. But Mr. S. Ramachandra Ayyar for the appellant rightly points out that this contention was not raised in the Court below and that it was only at the time of the hearing of the appeal before Mack, J., that this point was put forward for the first time. He therefore prays that, in case we are inclined to agree that Section 14(2) of the Limitation Act would apply to this case, he should be given an opportunity to show that the respondent would not be entitled to the benefit of that section because his prosecution of the execution proceedings in the Sub-Court, Kumbakonam, was not ' in good faith '.. Though prima facie we think that such proceedings should be presumed to be bona fide we must concede that the appellant did not have an apportunity of proving to the Court that there was no good faith on the part of the respondent. The only course is therefore to remand the E.P. to the Court of the Subordinate Judge of Madurai to dispose of the application after deciding this question viz., whether the respondent is entitled to the benefit of Section 14(2) of the Limitation Act on the ground that he had been prosecuting, in good faith, in the Kumbakonam (Sub-Court) the earlier execution proceedings.

6. The appeal is allowed to this extent and the E.P. is remanded to the Subordinate Judge's Court to be disposed of in the light of this judgment. There will be no order as to costs.


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