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Thathara Nannabha Chetty Vs. Kuppal Krishnammal and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in16Ind.Cas.799
AppellantThathara Nannabha Chetty
RespondentKuppal Krishnammal and ors.
Cases ReferredMadhab Moni Dasi v. Pamela Lambart
Excerpt:
civil procedure code (act v of 1908), order xxxiv, rule 5 - mortgage-decree--application to make order absolute--limitation, act (ix of 1908), scheduled i, article 181--time for payment fixed by court--confirmation of decree by appellate court, which is silent as to time for payment, effect of. - .....: 27 i.a. 209. that case does not, however, lay down such a principle. it decides that, where the words 'date of the decree' are used in the original decree, those words, after the decree is affirmed, mean the date of the appellate decree. the case of ramasawmy kone v. sundara kone 31 m.p 28 : 17 m.l.j. 495 : 3 m.l.t. 26 is a clear authority against the appellant and we cannot accept the distinction sought to be made, no trace of this being found in the judgment. to do what we are asked to do would be to alter the decree. it is then suggested that article 181 of the limitation act (ix of 1908), does not apply and reliance is placed on madhab moni dasi v. pamela lambart 37 c.p 796 : 12 c.l.j. 328 : 6 ind. cas. 537. with all respect to the learned judges, we are unable to see why this.....
Judgment:

1. The first point taken in this appeal, is that the appellant is entitled to treat the decree in appeal as substituting a corresponding date for the actual date in the original decree and reliance is placed on the decision of the Privy Council in Bhup Indar Bahadur Singh v. Bijai Bahadur Singh 23 A.K 152 : 2 Bom. L.R. 978 : 10 M.L.J. 290 : 5 C.W.N. 52 : 27 I.A. 209. That case does not, however, lay down such a principle. It decides that, where the words 'date of the decree' are used in the original decree, those words, after the decree is affirmed, mean the date of the appellate decree. The case of Ramasawmy Kone v. Sundara Kone 31 M.P 28 : 17 M.L.J. 495 : 3 M.L.T. 26 is a clear authority against the appellant and we cannot accept the distinction sought to be made, no trace of this being found in the judgment. To do what we are asked to do would be to alter the decree. It is then suggested that Article 181 of the Limitation Act (IX of 1908), does not apply and reliance is placed on Madhab Moni Dasi v. Pamela Lambart 37 C.P 796 : 12 C.L.J. 328 : 6 Ind. Cas. 537. With all respect to the learned Judges, we are unable to see why this limitation should be placed on the plain language of the Article. It is obviously an application under the Civil Procedure Code for it is made under Order XXXIV, Rule 5, which expressly requires an application. We hold that Article 181 applies and that the petition was rightly dismissed.

2. This appeal is, therefore, dismissed with costs.


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