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Kumara Venkata Perumal Raja Bahadur Varu by Guardian, W.A. Waradachariar Vs. Velayuda Reddi and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in24Ind.Cas.195
AppellantKumara Venkata Perumal Raja Bahadur Varu by Guardian, W.A. Waradachariar
RespondentVelayuda Reddi and ors.
Cases ReferredT. Varadiah v. Raja Kumara Venkata Perumal
Excerpt:
civil procedure code (act v of 1908), section 48 - madras court of wards act (i of 1902), section 45--limitation act (ix of 1908), section 15--mortgage decree against person of proprietor--not in accordance with section 89 of transfer of property (act iv of 1882)--irregular--propriety cannot be questioned in execution--estate under court of wards--exclusion of time--barred--limitation. - .....now to dispute the propriety of this order. it is clear, therefore, that under the terms of the decree limitation began to run under section 48(a) from the date of the decree, 2nd may 1890, or at latest under section 48(6) from the 2nd of november 1890 after which date the mortgaged property was made liable to be sold. a period of six years and seven months has admittedly to be excluded in respect of the period during which the decree had been transferred to the collector under the court of wards act., and the respondent seeks to exclude a further period, the further period from the 17th august 1907 to the 15th january 1910 during which the estate was under the management of the court of wards without any transfer of decrees to the collector for execution, as a period during which, in.....
Judgment:

Wallis, J.

1. It is admitted by the respondent that the District Judge's order cannot be supported on the ground that the second period during which the estate was under the management of the Court of Wards should be excluded. During this period of management decrees were not transferred to the Collector for execution and the provisions of the Court of Wards Act and the Civil Procedure Code under which time is to be excluded in that case do not apply.

2. It has, however, been sought to exclude the operation of the twelve years' rule under Section 48, Civil. Procedure Code, on other grounds. The decree in the present case was dated the 2nd May 1890. Though a mortgage decree it does not follow the form prescribed by Section 89 of the Transfer of Property Act, but gives the plaintiff a personal decree for the whole amount and not merely for the balance that might be found due after the sale of the mortgaged properties. Accordingly properties of the judgment-debtor not included in the mortgage were attached and ordered to be sold before the mortgaged properties were brought to sale and it is too late now to dispute the propriety of this order. It is clear, therefore, that under the terms of the decree limitation began to run under Section 48(a) from the date of the decree, 2nd May 1890, or at latest under Section 48(6) from the 2nd of November 1890 after which date the mortgaged property was made liable to be sold. A period of six years and seven months has admittedly to be excluded in respect of the period during which the decree had been transferred to the Collector under the Court of Wards Act., and the respondent seeks to exclude a further period, the further period from the 17th August 1907 to the 15th January 1910 during which the estate was under the management of the Court of Wards without any transfer of decrees to the Collector for execution, as a period during which, in the language of Section 14 of the Limitation Act, 1908, he was prosecuting with due diligence another civil proceeding for the same relief where such proceeding is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it. It is not shown that, the respondent did anything to prosecute the execution of his decree before any Court during the 2nd period of management. If he had applied to the Collector to execute it, he would at once have been informed that the Collector had no jurisdiction as the decree had not been sent to him for execution. I do not think any case is made on the facts for the application of Section 14 of the Limitation Act and it is, therefore, unnecessary to consider whether the time as limited by Section 48 of the Code of Civil Procedure for the execution of a decree can be extended by virtue of the general provisions of the Limitation Act.

3. Finally, it is said that Execution Petition No. 139 of 1905 which sought for the sale of properties not included in the mortgage was within time, and we are asked to treat the present petition of 1910 which seeks for the sale of other properties as part of the petition of 1905. Two decisions, Sevugam Chetty v. Krishna Aiyangar 13 Ind. Cas. 268 : 22 M.L.J. 139 : 10 M.L.T. 557 : 36 Ma. 378. and T. Varadiah v. Rajah Kumara Venkata Perumal 21 Ind. Cas. 782 : 26 M.L.J. 83 : 14 M.L.T. 530 : (1914) M.W.N. 157., have been referred to. In the first of these cases the plaintiff sued an agent to recover his account books which were detained by the agent and stated in his plaint that he would bring another suit for the money due by the agent. The Court allowed the plaint to be amended after the money claim had become barred so as to claim the money also under Order VI, Rule 17 of the present Code, which allows the Court at any stage to amend the pleadings in such manner as may be just. With great respect it does not seem to me to be just to allow a plaintiff by amending his pleadings to revive a barred claim. Weldon v. Neal 19 Q.B.D. 394 : 56 L.J.Q.B. 62 : 35 W.R. 820.

4. In the second case the decree-holder was allowed to amend a petition which asked for the, sale of non-mortgaged properties before the sale of the mortgaged properties so as to ask for the Sale of the mortgaged properties first and so bring the petition into accordance with law. The amendment, it is stated in the judgment, was allowed to enable the decree-holder to save the bar of the twelve years' rule. In the present case we are asked to treat Execution Petition No. 52 of 1910 which prays for the attachment and the sale of the defendant's interest in a certain taluq as a continuation of Execution Petition No. 139 of 1905 in which he sought for sale of the defendant's interest in two other taluqs. Execution Petition No. 139 of 1905 is said to have been pending when Execution-Petition No. 52 of 1910 was filed. I do not think it would be right to treat Execution Petition No. 52 of 1910 as an amendment or a continuation of Execution Petition No. 139 of 1905 so as to deprive the respondent of the defence of limitation which was open to him against any fresh application claiming this relief. To do so would, in, my opinion, contravene the settled rule of practice laid down by Lord Esher, M. R., in Weldon v. Neal 19 Q.B.D. 394 : 56 L.J.Q.B. 621 : 35 W.R. 820. that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of, such amendments. Under very particular circumstances Lord Esher says the Court might perhaps have power to allow such amendment, but I do not think there is any case for doing so here. The appeals are allowed with costs throughout.

Sadasiva Aiyar, J.

5. I am also of the same opinion as my learned brother. Following Raja of. Kalahasti v. Venkata Perumal 12 Ind. Cas. 689 : 21 M.L.J. 1036 : 10 M.L.T. 429 : (1911) 2 M.W.N. 458. I am of opinion that the decree in this case contained both a direction for sale as well as a personal decree and the validity of such a decree, though it , is irregular in form according to the Transfer of Property Act, cannot be called in question in execution. The right to, attach and bring to sale the properties of the judgment-debtor other than the mortgaged properties arose, therefore, on 3rd, November 1890.

6. Following, the observations in Phoolbas Koonwar v. Lalla Jogeshur Sahoy 1 Ca. 226 : 25 W.R. 285 : 3 I.A. 7 : 3 Sar. P.C.J. 573 : 3 Suth. P.C.J. 236. the observations in Navalchand Nemchand v. Amirchand Talakchand 18 B. 734. and Moro Sadashiv v. Visaji Raghunath 16 B. 536, I am inclined to hold that, the Civil Procedure Code is not a 'Special Statute,' but it is a general law of procedure usually passed in the same year as the Limitation Act, and that the sections of the Limitation Act relating to exclusion of time and obtaining the benefit of the time spent in certain necessary acts and other similar provisos govern also the twelve years' period of limitation provided for in Section 48 of the Civil Procedure Code.

7. With the greatest respect, I find myself unable to agree with some of the observations contra in the case of Rabala Ramana Reddi v. Rabala Babu Reddi 18 Ind. Cas. 586 : 24 M.L.J. 96 : (1913) M.W.N. 114 : 37 M. 186 : 13 M.L.T. 79.

8. In the present case, the right to proceed against the properties other than the mortgaged properties arose on 3rd November 1890 and deducting the six years and seven months during which the Court of Wards was in the management under the special provisions of the Courts of Wards Act and deducting the 8 months and 12 days during which, according to my view, the decree-holder was prohibited by an injunction from conducting execution proceedings, the twelve years expired on or about 15th January 1910 and the present Execution Petition No. 83 of 1910 filed on 18th July 1910 is, therefore, barred by limitation.

9. Next there is the contention that this petition of 1910 might be treated as a petition to amend the old petition of 1905 and that such an amendment ought to be granted. I am inclined to give the Court full power to amend the pleadings at any stage (having regard to Section 153 of the new Code) so as to advance substantial justice without much regard to the consideration whether the judgment-debtor or the defendant may not be prejudiced in his right to raise technical pleas. In Varadiah v. Raja Kumara Venkata Perumal 21 Ind. Cas. 782 : 26 M.L.J. 83 : 14 M.L.T. 530 : (1914) M.W.N. 157. myself and Spencer, J., allowed such an amendment under the circumstances of that case. Mr. L. A. Govindaraghava Aiyar quoted against this case of T. Varadiah v. Raja Kumara Venkata Perumal 21 Ind. Cas. 782 : 26 M.L.J. 83 : 14 M.L.T. 530 : (1914) M.W.N. 157. a judgment of mine as a single Judge, in which I expressed an opinion (following cases decided before the new Code came into force) that the amendment of an execution petition could not be allowed after it had once been filed. In that earlier case Section 153 of the new Civil Procedure Code was not brought to my notice and as at present advised, I am inclined to give the fullest powers allowing amendments to Courts, though, of course, the Courts must also possess a discretion not to allow such amendments under particular circumstances.

10. In the present case, I agree with my learned brother that the Court's discretion to allow the amendment of the petition of 1905 should not be exercised in 1914 in favour of the decree-holder as he has been guilty of much negligence in not putting in this petition before July 1910.


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