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S.K. Yesudasan Vs. A. Grant - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Reported in(1980)2MLJ152
AppellantS.K. Yesudasan
RespondentA. Grant
Cases ReferredS.P. Choudhury v. S.C. and Company
Excerpt:
- .....in a partition suit. the decree was passed on 7th september, 1962. under the terms of the said decree costs were awarded in favour of the petitioner in the sum of rs. 573.74.2. when appeal was taken by the petitioner against the preliminary decree it was dismissed on 14th october, 1970. the petitioner thereafter filed e. p. no. 85 of 1977 for executing the decree against the defendant for costs awarded under the preliminary decree. the objection put forward by the defendant was that the execution petition was barred be limitation since 12 years had expired from 7th september, 1962 which as pointed out earlier was the date of the preliminary decree. this contention was upheld by the learned subordinate judge and the execution petition was dismissed.3. in this revision against the.....
Judgment:
ORDER

V. Balasubrahmanyan, J.

1. This civil revision petition arises out of esecution proceedings. The plaintiff is the petitioner before this Court. The only point is whether the Court below was right in dismissing the plaintiff's application for execution of the decree as to costs on the ground that the execution petition is belated. The decree in question was a preliminary decree in a partition suit. The decree was passed on 7th September, 1962. Under the terms of the said decree costs were awarded in favour of the petitioner in the sum of Rs. 573.74.

2. When appeal was taken by the petitioner against the preliminary decree it was dismissed on 14th October, 1970. The petitioner thereafter filed E. P. No. 85 of 1977 for executing the decree against the defendant for costs awarded under the preliminary decree. The objection put forward by the defendant was that the execution petition was barred be limitation since 12 years had expired from 7th September, 1962 which as pointed out earlier was the date of the preliminary decree. This contention was upheld by the learned Subordinate Judge and the execution petition was dismissed.

3. In this revision against the dismissal of the E. P. No. 85 of 1977 the learned Counsel for the petitioner urges that the Court below was in error in holding that the period of limitation must be computed from the date of the preliminary decree. He pointed out that the preliminary decree was the subject-matter in appeal, and hence the decree must be treated as having become merged, in the appellate Court's decree. In this submission the period of limitation even for executing the decree for costs under the trial Court's decree is only from the date of the appellate Court decree viz., 14th October, 1970.

4. It cannot be disputed that if the limitation under Article 136 of the Limitation Act were to be computed as from the date of the appellate Court's decree viz., 14th October, 1970 the execution petition filed by the petitioner will be well within time because the execution petition was filed on 15th June, 1977. But the, learned Counsel for the defendant submitted that the decree for costs must be dealt with as a separate decree under the preliminary decree, since there was no stay of execution for costs during the pendency of the appeal preferred by the petitioner against the preliminary decree. He further submitted that since the petitioner had not appealed against the trial Court's decree awarding cost's the theory of merger of the trial Court's decree in the appellate Court's decree cannot hold good in the circumstances.

5. I do not agree with the submissions made by the learned Counsel for the defendant. While is it usual for Courts in the concluding portions of their judgments to refer to their directions as to costs by the appellation 'order' as when they any say 'there shall be no order as to costs' there can be no doubt whatever that directions as to costs really form part of the decree. Under the definition of decree in Section 2(2) of the Civil Procedure Code a decree means

the formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144 but shall not include--

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

6. It can be seen from the above definition that any adjudication from which an appeal lies as an appeal from an order, or any order of dismissal for default would stand excluded from the connotation of a decree. I have referred to this provision in the Code just to clarify that while judicial colloduialism may often refer to an order for costs, it is really part and parcel of the decree passed by the Court. A direction for costs in a decree is really a decree for costs. Wherever a decree is passed as respects costs, it is an inextricable part of that decree. The law seems to be that where an appeal is taken from a part of the decree alone still the appellate decree would be one in which the whole of the decree appealed against would clearly merge In such cases there cannot be a merger in part and no merger for the rest. I was referred to a Division Bench ruling of this Court in Kunjarnmal v. Krishna Chettiar : AIR1954Mad170 . In which it was laid down that when a decree is taken in appeal to a higher Court the decree passed in appeal supersedes that of the Court below and becomes the decree in the suit itself and thereafter that is the only decree which is capable of execution and the period of limitation for execution would run from the date of the appellate Court decree. The learned Judge further proceeded to hold that it makes no difference whether the person against whom execution is sought is a party to the appeal or not, any more than whether the appeal related to the entire subject-matter of the suit or only to a part thereof, on the principle that there could be only one decree in the suit, and the decree capable of execution is only the decree passed in appeal.

7. In my view, principle in the above decision would apply even in a case where that which is executed is only that part of the decree as to costs and where the decree for costs as such had not been part of the subject-matter of the appellate decree.

8. The learned Counsel for the petitioner also cited a decision in S.P. Choudhury v. S.C. and Company : AIR1976Cal122 . The head-note to that case sums up the decision with reference to the facts of that case as under:

Where a decree for costs passed by the trial Court on 1st May, 1959, was affirmed by the appellate Court with some modification on 7th June, 1962 an application for execution of the decree for costs of the appeal Court filed on 2nd May, 1972 is not barred by limitation under Article 136. The decree of the trial Court dated 1st May, 1959, has merged in the decree of the appeal court dated 7th June, 1962 and the starting point of limitation for application for execution of the decree for costs is the date of the appeal Court decree and not the date of the trial Court decree.

9. In view of the above considerations, I hold that the order of the learned Subordinate Judge dismissing E.P. No. 85 of 1977 in limine on the ground that it was barred by limitation is erroneous in point of law and has to be set aside. I accordingly set aside that order and send the case back to the learned Subordinate Judge for disposal on its merits. The Civil Revision Petition is accordingly ordered. But there will be no order as to costs.


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