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Umayal Achi and anr. Vs. Ramanathan Chettiar - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai High Court
Decided On
Reported in(1980)1MLJ24
AppellantUmayal Achi and anr.
RespondentRamanathan Chettiar
Cases ReferredRoshan N.M.A. Karim Oomar and Co. v. Kaka Md. Ghouse Sahib
Excerpt:
- .....act was the bedrock of unnecessary litigation. the parliament, having thus made an express provision that time would begin to run for executing any decree from the date when it becomes enforceable, it means that the execution petition in question has been filed years after, namely 40 years thereafter. it is therefore clearly, barred by limitation. the order of the lower court is therefore wrong and it is set aside and both the civil miscellaneous appeals are allowed with costs.
Judgment:

T. Ramaprasada Rao, C.J.

1. These two civil miscellaneous appeals are connected. They arise out of a judgment rendered by the Subordinate Judge of Devakottai in E.P. No. 35 of 1973 in execution of a decree of the High Court passed in its Original Side in C.S. No. 33 of 1929. The 13th respondent in the execution petition in the Court below, as the legal representative of the second defendant, who died in the course of the proceedings, is the appellant in C.M.A. No.298 of 1975. The fourth respondent in the execution petition is the appellant in C.M.A.No. 540 of 1975. The Original Side of this Court passed a decree on 2nd December, 1929. It was a money decree payable with interest at 6 per cent. per annum from that date. The suit as against defendants 4 to 9 was dismissed, but the decree was made executable against the assets of P.M.A. family which was a Nattukottai Chettiar trading family in the hands of defendants 13 and 10. In so far as the 10th defendant is concerned, he was an administrator of the estate. Since he has been discharged, it is not executable as such in the manner directed. In fact, one other C.M.A. No. 407 of 1975, was also filed by the 6th respondent, who was the 6th defendant in the suit. As no decree was passed against the 6th defendant, we dismissed this appeal (C.M.A. No. 407 of 1975) in an independent order passed by us. Several execution petitions were filed ever since the date of the decree. We shall however, refer to those execution petitions, which are relevant for purposes of this enquiry. It appears, there was a modification of the decree after the discharge of the administrator, who was impleaded as the 10th defendant in the Original Suit. By an order dated 29th March, 1932, the decree was modified so as to be effective and executable against the first defendant and the third defendant personally. Prior to 1947, several execution petitions were filed of which mention could be made of E.P. No. 270 of 1932 which, on account of an order of stay, was closed, another E.P. No. 73 of 1954 for arrest of the judgment-debtors was again closed in the same year. A similar execution petition filed in 1939 for arrest of the judgment-debtors which came up to the High Court at one stage was closed after remand on 5th January, 1943. The third defendant died sometime between 9th December, 1940 and 28th September, 1942. An execution petition filed in the year 1945 once again for the arrest of the judgment-debtor was closed on 22nd October, 1946. An application for impleading the fourth defendant as a legal representative of the third defendant was dismissed in the first instance by the lower Court and later on an application No. 2303 of 1945 on the file of this Court as above, this Court by its order dated 8th February, 1946 directed that the fourth defendant be brought on record as the legal representative of the third defendant. Liberty was however granted to the fourth defendant to raise such objections as he could in the matter of the execution of the decree. In the year 1947 an execution petition was taken for an attachment of certain properties in the hands of the judgment-debtors. This was contested and in E.P.No.141 of 1947 the Subordinate Judge of Devakottai passed an order on 27th March, 1948, the effect of which is as follows: The Subordinate Judge had to dismiss the execution petition as against defendants 4 to 6 because the suit itself was dismissed as against them. He however made a reservation regarding the question whether the decree is executable as against the fourth defendant who was the fourth respondent in the execution petition even then and left open the question and gave him also the liberty to query about the executability of the decree as against him as the legal representative of the third defendant. He also observed that no execution petition can be taken out in respect of the property of the fourth defendant as the legal representative of the third defendant and allowed the execution petition only as against defendants 1, 2 and 11 who then represented the estate of the first defendant. The execution petition was dismissed as against defendants 4, 5 and 6. This order was taken up in appeal and a Division Bench of our High Court consisting of Govinda Menon and Ramaswami, JJ., in C.M.A. No. 558 of 1948 dismissed the suit appeal. The result, therefore, is the order of the Sub-Court, Devakottai in E.P.No.141 of 1947 has become final in the light of the dismissal of an appeal against that order by this Court in C.M.A. No. 558 of 1948.

2. Thereafter, the assignee decree-holder who was prosecuting all these execution petitions filed E.P.No.58 of 1950 which was rejected because of non-production of the decree copy itself. This execution petition was dismissed on 8th March, 1950. For 10 years there was a lull. The respondent-assignee decree-holder filed E.P.No. 142 of 1960 which was again dismissed on 9th September, 1960, since batta was not paid. Finally, the present execution petition which is the subject-matter of this appeal was filed by the assignee-decree-holder in the year 1972. The execution petition was numbered as E.P.No 35 of 1973, though it was filed on 8th September, 1972. The objection taken by the appellant in both the above appeals is that the execution petition is not only barred by limitation, but it is barred under the principle of res judicata, as the Sub-Court in E.P. No. 141 of 1947 held that no execution can be taken as against the fourth defendant as a legal representative of the third defendant and that order having become final by the order of the Division Bench in C.M.A. No. 558 of 1948 the said order bars another application for the same purpose on the principle of res judicata. The Court below however allowed the execution petition as against both the appellants and held that as the decree was passed by the High Court, the period of 12 years prescribed as the period within which a decree has to be executed as per the provisions of the Limitation Act of 1963, is not applicable and as the execution petition was filed within a period of 12 years from the date of the last dismissal in E.P.No. 142 of 1960 which was dismissed on 9th September, 1960, the execution petition was in time.

3. On the next question, whether it was barred by the principle of res judicata, the Court below was of the view that as the objection now raised by the fourth defendant was not raised earlier in 1947 when E.P. No. 141 of 1947 was disposed of, it cannot be raised.

4. In so far as the question whether the execution petition is barred by res judicata is concerned, it has to be accepted for two reasons. Firstly, because of the principle stare decisis. The order of the Subordinate Judge of Devakottai which was to the effect that no execution petition can be taken out in respect of the property against the fourth defendant as the legal representative of the third defendant was confirmed by a Division Bench of this Court in C.M.A. No. 558 of 1948.

5. The decree-holder's contention appears to be that the decree of the Sub-Judge is an erroneous one and even though it has been affirmed by this Court, it remains to be erroneous and that, therefore, the principle of res judicata will not apply. It is also said that the principle of res judicata is not applicable to execution proceedings.

6. The doctrine of res judicata is a reflection of judicial sensitivity, for, the basis of that doctrine springs from the rule of conclusiveness of judgments of civil Courts. It is very well-known that no man should be vexed twice over for the same cause. This rule of wisdom is applicable equally to execution proceedings. The Privy Council in Ram Kripal Shukul v. Mussamat Rup Kuari (1883) 11 I.A. 37, disagreeing with a Full Bench judgment of the Calcutta High Court expressed the view that the doctrine of res judicata is applicable to execution proceedings as well. The second ground of objection which apparently found favour with the lower Court was that the decision of the Sub-Court, Devakottai as the executing Court that the decree is not executable against the fourth defendant as the legal representatives of the third defendant, is a wrong decision. There is ex facie force in this contention because the original decree as amended on 9th March, 1932, made the decree personally executable against the third defendant. It, therefore, follows, that the decree was prima facie executable against the fourth defendant as the legal representative of the third defendant. In this sense, therefore, the decision of the Sub-Court, Devakottai in E.P. No. 141 of 1947 was an erroneous decision. We have already seen that decree-holder respondent did have an opportunity to question this conclusion; in any event this is one of the cases in which the objection might and ought to have been made the ground of attack. The Explanation to Section 11 provides that any matter which might and ought to have been made a ground of defence or attack in the former suit shall be deemed to have been a matter directly/and substantially in issue in such suit. This is based on the principle of constructive res judicata. It is fundamental that in the course of process of litigation, if a matter might and ought to have been agitated as incidental to the final conclusion or essentially connected with it, then the resultant adjudication without any appraisal or adjudication on such matters which might and ought to have been raised and also the actual matter which is the subject-matter of the adjudication becomes conclusive and final. This again is based on the rule of jurisprudence that a person ought not to be troubled twice over the same subject - matter when he was silent and inactive and did not take the elementary pre-caution of raising the objection in the stream of the concerned litigation. It may be that the Subordinate Judge of Devakottai wrongly or erroneously decided that the execution cannot be taken out as against the property of the fourth defendant as the legal representative of the third defendant. This decision or adjudication on that matter which was incidental and connected with the execution of the decree was confirmed by this Court in C.M.A.No. 558 of 1948.

7. There is also high authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties. Vide Mohanlal Goenka v. Benoy Krishna Mukherjee : [1953]4SCR377 .

The Supreme Court accepted the decision of the Calcutta High Court reported in Abhoy Kanta Gohain v. Gopinath Deb Goswami and Ors. A.I.R. 1913 Cal. 460, and observed as follows:

There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. A decision in the previous execution case between the parties that the matter was not within the competence of the executing Court even though erroneous is binding on the. parties.

It, therefore, follows that on the principle of constructive res judicata the present objection of the appellant in C.M.A.No. 540 of 1975 who was the fourth defendant in the suit that no execution can be taken as against him even though he is the legal representative of the third defendant against whom a decree has been passed has to be upheld.

9. Mr. V. Ratnam, appearing for the appellants raised another formidable objection to the executability of the High Court decree. His contention is that the execution petition is barred by limitation. The lower Court rejected this contention and distinguised a decision of our Court reported in Dhanalakshmi Ammal v. Ramaswami Pillai (1973) 1 M.L.J. 339 on the ground that in that case a decree of the Subordinate Court was the subject-matter in issue, but as in the present case, the decree has been passed by the High Court, there is no bar for its executability. According to the learned Subordinate Judge, the decree is not barred under the provisions of the old Limitation Act of 1908 and that under the new Act, the decree-holders are entitled to the extended period of limitation contained in the new Limitation Act of 1963. The decree-holder's contention was that the period of 12 years provided for in the new Limitation Act has to be calculated from 9th September, 1960 when E.P. No. 142 of 1960 was dismissed on the ground that batta was not paid. The lower Court also referred to Section 31-B of the Limitation Act of 1963, and therefore, was of the view that the old Act has to be looked into for the purpose of ascertaining the period fixed and, therefore, rejected the contention of the judgment-debtors that the execution petition was barred by limitation. This subject has to be viewed under two headings. Firstly, it has to be seen whether the Execution Petition No. 142 of 1960 is a valid application at all and whether an earlier petition which was filed in 1949-50 (E.P. No. 58 of 1950) could be taken to be a valid step in aid of execution. We have seen that E.P. No. 58 of 1950 was rejected for non-production of a decree-copy. It was not closed for statistical purposes. On the other hand, it was rejected because of a default committed by the decree-holder in not having filed the decree copy. Even assuming for argument's sake that the Limitation Act of 1908 could be invoked in the instant case, it has to be decided first whether by filing E.P. No. 58 of 1950 without producing a decree copy, whether there was any revival of the right to execute the decree thereafter. The respondent's contention is that as E.P. No. 58 of 1950 was filed on 25th October, 1949. which was within three years from the date of the final order made by a competent Court on 27th March, 1948 in E.P. No. 141 of 1947, E.P. No. 58 of 1960, is a valid execution petition. It may be so. But his execution petition was rejected on 8th March, 1950, for non-production of a decree copy. There is nothing on record to show that the decree-holder was prevented by sufficient cause in not producing a copy of the decree. The rejection of E.P. No. 58 of 1950 on 8th March, 1950 is a valid order of Court which has become final. Even in a case where a petition for execution had been dismissed for non-payment of batta and where an execution petition was filed later but before the lapse of three years from the date of the order passed on the former one, a Full Bench of our High Court in Sundaramma v. Abdul Khader (1933) 61 M.L.J. 664 : I.L.R. Mad. 490 : 37 I.W. 607 : A.I.R. 1933 Mad. 418 took the view that the later execution petition should be deemed to be barred by limitation. Here, in this case reliance is placed upon the order passed in the later execution petition E.P. No. 142 of 1960 which was dismissed on the ground that batta was not paid.

This dismissal is again a valid and a final order. But the question is whether there has been a revival of the cause of action by reason of the dismissal of the earlier execution petition in E.P. No. 58 of 1950 which as stated already was rejected for non-production of a decree copy. Time lag between the execution petition of 1950 and the execution petition of 1960 is about 10 years. As the Full Bench pointed out in the above case:

In order to enable the later application to be treated as one in continuation or to revise the former one, there should have been no final disposal or there should have been a wrong dismissal on account of some obstacle which had existed but which had been subsequently removed.

The principle of revival of a former execution petition can be utilised by the decree-holder only if the earlier petition was dismissed for no fault of the decree-holder. One such instance of dismissal is striking off the execution petition for statistical-purposes. Another instance is a case where the execution of the decree itself is suspended by a valid order of a higher Court. The third instance is that there has been some obstacle or interdict which prevented the decree-holder from taking steps within three years from the date of the final order made by a competent Court in an earlier petition. There is ample authority for the proposition:

Not unless there was a suspension without any default on her part can the principle of revival of a former execution petition be utilised in favour of the appellant.

Vide Suryanarayana Pandarathar v. Gurunada Pillai : (1898)8MLJ25 and Lahimiva v. Mazur Hannisa 95 Ind.Cas. 718 In the absence of any such proved injunction or obstacle which prevented the decree-holder from filing an execution petition within three years from the date of the disposal of an earlier execution petition, the later execution petition would be barred. For a greater reason, if the earlier petition itself has been dismissed because of a laches or a default on the part of the decree-holder the question of the revival of the right to execute the decree further merely by filing an execution petition within three years from the date of the disposal of the earlier petition would certainly be barred. The execution petition of 1950 was rejected because of the laches of the decree-holders who did not file the decree copy along with the execution petition. There is no explanation as to why the decree copy has not been filed. Such a final order of rejection of the execution petition of 1950 cannot, therefore revive the right to the decree-holder to file an execution petition within three years from that date. It, therefore, follows that the execution petition filed in 1960 (E.P. No. 142 of 1960) cannot form the basis or foundation to revive a right which has been lost for ever to the decree-holder because of the final order of rejection made on 8th March, 1950 in E.P. No. 58 of 1950. The conclusion, therefore, is that even assuming that the old Act is applicable the execution petition filed in 1960 the disposal given to it on 9th September, 1960, cannot be reckoned for any purpose even under the old Act for filing afresh execution petition thereafter. We are, however, of the opinion, that the old Act does not apply at all. This is the second head of attack by Sri V. Ratnam.

10. Mr. Ratnam's case is that even under the new Act the execution petition is barred and the decree is not executable against the appellants. A little diversion at this stage touching upon the necessity for the amendment of Article 182 of the old Limitation Act of 1908 would not be out of place. The Law Commission of India in its third report on the Limitation Act, 1908 in paragraph 170 of the report has stated thus:

Article 182 has been a very fruitful source of litigation and is a weapon in the hands of both the dishonest decree-holder and the dishonest judgment-debtor. It has given to rise to innumerable decisions. The commentary in Rustomji's Limitation Act (5th Edition). on this article itself covers nearly 200 pages. In our opinion the maximum period of limitation for the execution of a decree or order of any civil Court should be 12 years from the date when the decree or order became enforceable (which is usually the date of the decree.).

11. In order to set at rest, the spate of litigation founded on ingenious contentions, the Limitation Act of 1963 was amended so as to provide only one article in the Schedule concerning execution of decrees. Article 136 (III Schedule) of 1963 Act provides:

12. The present article has done away with the old Article 183 in the earlier Act which created a distinction between the enforcement of a judgment, decree etc., of any Court established by Royal Charter in the exercise of its ordinary original, civil jurisdiction or an order of the Supreme Court.

This has not been noticed by the Court below. Whilst in the earlier Act a decree of the High Court (provided it is enforceable) could be executed when a present right to enforce the judgment or decree accrues to some person capable of releasing the right whereas in the new Article 136 the time from which period begins to run for the execution of any decree other than the decree granting mandatory injunction or order of any civil Court is when the decree or order becomes enforceable. The time when a decree or judgment becomes enforceable is from the date when it is pronounced. We have already seen in our earlier discussion that the last valid order passed in this case in relation to the execution petition filed by the decree-holder could be taken as 10th July, 1951, which was the date of the judgment of the Division Bench of this Court in C.M.A. No. 558 of 1948. E.P. No. 58 of 1950 did not revive the cause of action in favour of the decree-holder to execute the decree. That execution petition was dismissed on 8th March, 1950. Even applying the new Act, the execution petition ought to have been filed within 12 years from 10th July, 1951. Admittedly the present execution petition was filed in 1972. It is, therefore, barred by limitation.

13. Reliance is placed upon Section 30(b) of the Limitation Act of 1963. Section 30 runs as follows:

30. Notwithstanding anything contained in this Act:

(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 may be instituted within a period of (seven years) next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908 whichever period expires earlier:

Provided that if in respect of any such suit the said period of seven years expires earlier than the period of limitation prescribed therefor under the Indian Limitation Act, 1908, and the said period of seven years together with so much of the period of limitation in respect of such suit under the Indian Limitation Act, 1908, as has already expired before the commencement of this Act is shorter than the period prescribed for such suit under this Act then, the suit may be instituted within the period of limitation prescribed therefor under this Act.

(b) Any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian Limitation Act, 1908, whichever period expires earlier.

The period of grace provided under Section 30(b) is 90 days next after the commencement of the Act. This Act came into force on 1st of January, 1964. Even taking into consideration the grace period provided for, the present execution petition filed by the respondent-assignee-decree-holder is out of time because Section 31 of the Limitation Act provides that nothing in this Act shall enable any application to be made for which the period of limitation prescribed by the Indian Limitation Act, 1908, expired before the commencement of this Act. This is so in this case. One of us in Dhanalakshmi Ammal v. Ramaswami Pillai : (1973)1MLJ399 , made it clear that it is not permissible to tack on the time taken for prosecuting the previous execution petition because under the Limitation Act of 1963 time begins to run from the date of the decree and when the execution petition is not filed within 12 years, it is clearly barred. The learned Counsel for the decree-holder relied upon a decision in Roshan N.M.A. Karim Oomar and Co. v. Kaka Md. Ghouse Sahib : AIR1977Mad175 a Division Bench of this Court held that a payment made by the judgment-debtor towards a decree might be viewed as acts which conferred on the decree-holder a right to execute the decree within 12 years of the last of such payments. The Division Bench was of the view that such payments created self-imposed liability on the judgment-debtors themselves under which they rendered themselves liable to be proceeded against in execution of the decree for a period of 12 years from the date of such payments. That case is clearly distinguishable because in the present case no such payment was made nor the liability was self-imposed by the judgment-debtors.

15. Article 136 of the Limitation Act, 1963 prescribes the date as and from which the decree could be executed. It says the period of 12 years begins to run from the date when the decree becomes enforceable. A decree of a civil Court which adjudicates rights of arties becomes enforceable on the date when it pronounced its judgment. There cannot be a postponement of the date of its enforceability. It is in this respect that the present article differs from the old Article 183 which, while referring to decrees of High Courts, provided that time from which the period begins to run to enforce the judgment is the time when a present right to enforce the judgment accrues. Under the old Act certain factors apart from the date of enforceability of the judgment could also be enquired into to find out whether a right has accrued. Accrual of right in jurisprudence depends upon a bundle of facts. It was in that context and conjunction that the earlier Act was the bedrock of unnecessary litigation. The Parliament, having thus made an express provision that time would begin to run for executing any decree from the date when it becomes enforceable, it means that the execution petition in question has been filed years after, namely 40 years thereafter. It is therefore clearly, barred by limitation. The order of the lower Court is therefore wrong and it is set aside and both the civil miscellaneous appeals are allowed with costs.


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