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Kallepalli Rajilagiripathy Vs. Kallepalli Bhavani Sankaran and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in80Ind.Cas.103
AppellantKallepalli Rajilagiripathy
RespondentKallepalli Bhavani Sankaran and anr.
Cases ReferredRangaswamy Ghettti v. Thanqavelu Ghetti
Excerpt:
civil procedure code (act v of 1908), section 11, expl 17 - madras civil rules of practice, 161 (3)--transfer of decree application for--notice to judgment-debtor--failure to plead bar of limitation--res-judicata--limitation act (ix of 1908), section 15, schedule i, article 182(5)--attachment before judgment--injunction--exclusion of time--application by transferee for recognition of transfer--step-in-aid of execution. - .....for the transmission of the decree to the district court for execution, and on 26-4-1922 the present execution petition was filed. it was contended that the present petition was barred by limitation, but four grounds were urged by the decree-holder for allowing execution. the district judge has held that two of these grounds were valid and has ordered execution to proceed. now, this appeal is filed by the 1st defendant, the judgment-debtor.2. the first ground taken is that the plea of limitation is res judicata by reason of the order on the application of 4-4-1922 directing the transmission of the decree to the district court. it has been held in the calcutta court in sreepati charan chowdhury v. shamaldhone dutt 8 ind. cas. 22 : 15 c.l.j. 128 : 16 c.w.n. 661 and in chutterpat.....
Judgment:

1. This appeal relates to the execution of a decree, dated 27th April 1918. On 26th April 1919 the transferee decree-holders applied for recognition of their transfer and for execution. However, in consequence of an attachment of the decree this petition was dismissed. The next petition was put in on 4-4-1922 asking for the transmission of the decree to the District Court for execution, and on 26-4-1922 the present execution petition was filed. It was contended that the present petition was barred by limitation, but four grounds were urged by the decree-holder for allowing execution. The District Judge has held that two of these grounds were valid and has ordered execution to proceed. Now, this appeal is filed by the 1st defendant, the judgment-debtor.

2. The first ground taken is that the plea of limitation is res judicata by reason of the order on the application of 4-4-1922 directing the transmission of the decree to the District Court. It has been held in the Calcutta Court in Sreepati Charan Chowdhury v. Shamaldhone Dutt 8 Ind. Cas. 22 : 15 C.L.J. 128 : 16 C.W.N. 661 and in Chutterpat Singh v. Saita Sumarimal 36 Ind. Cas. 602 : 20 C.W.N. 889 : 23 C.L.J. 615 : 43 C.P 903 that, when an Order for transmission of the decree is made, no question of limitation is decided and therefore, such an order does not amount to res judicata on the question of limitation. In fact, in the former case, Mukerjee, J. held that the judgment-debtor could not at that stage possibly contend that the decree was barred by limitation but, apparently no notice was issued to the judgment-debtor under Section 248 of Code of Civil Procedure: the Court held further that, even though notice under Section 248 is issued, it is not competent for a judgment-debtor at that stage to contend that the decree ought not to be transferred because an application for execution thereof is likely to prove infructuous as being barred by limitation. In the judgment no authority is given for this proposition of law and possibly it is based upon the rules of the Calcutta High Court, which do not require the issue of a notice to the judgment-debtor in an application 'for transmission of the decree. On the other hand, in Madras, under Rule 161(3) of the Civil Rules of Practice, a notice should be issued, and a notice was accordingly issued in this case. It is now urged for the respondent that the judgment-debtor had an opportunity of appearing and pleading that the application was barred by limitation, and it would seem that, when there was that opportunity Section 11, explanation (IV) would be applicable and that the question would be res judicata because it was one which might and ought to have been put forward to show that the decree was not one that could be executed. In fact in Mungal Pershad Dichit V Grija Kant Lahiri 8 C.P 51 : 11 C.L.R. 113 : 81 A. 128 : 4 Sar. P.C.J. 219 : 4 Ind. Dec. (N.S.) 82 it was held that, where an execution petition was barred by limitation but execution had been ordered to proceed it was not open to the judgment-debtor in a subsequent application to plead that the former application was barred by limitation. Similarly in Rajah of Ramnad v. Velusami Tevar 59 Ind. Cas. 880 : 40 M.L.J. 197 : 19 A.L.J. 168 : 18 L.W. 290 : (1921) M.W.N. 51 : 88 C.L.J. 818 : 20 C.W.N. 581 : 23 Bom. L.R. 701 the Privy Council held that, when an assignee of a decree applied to be brought on the record and to have the decree executed, execution was allowed although the judgment-debtor had raised the plea that execution was barred by limitation. In the order allowing execution, the plea of limitation was not dealt with specifically but it was held that in a subsequent application the plea of limitation could not be urged, for it must be deemed to have been decided in the order on the former application. In that case the plea was raised in the first proceedings but their Lordships remark in the judgment (at p. 200).

It was not only competent to the present respondents to bring the plea forward on that occasion but it was incumbent on them to do so if they proposed to rely on it. No appeal was brought from the order then made and therefore it was not competent for the Subordinate Judge to admit the plea on the subsequent proceedings.

3. It would appear from this that, even in an application for transfer of a decree, it is open to a judgment-debtor to plead limitation and in fact he ought to do so. If the decree is barred by limitation, the transfer of it to another Court is a mere infructuous proceeding which ought not to be taken and there-fore if a valid plea of limitation is available, it should be urged in order be prevent multiplicity of proceedings. In this view we think that the District Judge's order in the present case was correct.

4. The second ground on which the District Judge allowed execution is that the petition put in on 26-7-1919 was a step in aid of execution, and, being less than three years before the present application the latter is not barred. The application on 26-7-1919 was one put in by the transferee decree-holders to recognise the transfer and to execute the decree in certain methods specified in the petition. The petition was dismissed because execution of the decree had been stayed and it appears that in subsequent proceedings the right of those transferee decree-holders has been negatived. At the time the application was made they were transferee decree-holders by assignment from the original decree-holders and as such the proper persons to execute the decree; it was held in Sreenada Brahmayya Pantulu v. Pavasuram Ayya 13 M.L.J. 348 that such an application as this would have the effect of saving the bar of limitation. The transfer in that case was effected by a decree of Court, whereas in the present case the transfer is effected by an assignment by the parties, but this cannot affect the question whether the application was one made in accordance with law. Until the assignment had been held to be invalid, the transferees were the parsons who had title to execute the decree. On this ground also we think the District Judge was right.

5. The District Judge has rejected the third ground, namely, that limitation is saved under Seotion 15, of the Limitation Act, and he has based his decision on Rangaswamy Ghettti v. Thanqavelu Ghetti 50 Ind. Cas. 380 : 42 M.P 637 : (1919) M.W.N. 448 : 26 M.L.T. 147 : 10 L.W. 833. In that case, however the attachment was of a book-debt and it is clear that an attachment of a book-debt does not operate as an injunction within the meaning of Section 15 of the Limitation Act. When a decree is attached, the form of attachment is given in Appendix E, forms Nos. 22 and 23 and, in accordance with those forms, there would not really be any injunction against execution, for the attaching decree-holder cannot execute the decree himself: but in the present case, the attachment was not by a decree-holder, but it was an attachment before judgment, and consequently the order issued by the Court attaching the decree absolutely prohibited the execution of the decree by anybody, as will be seen by a reference to the attachment order. This order clearly amounts to an injunction and it is not denied that, if the period during which that injunction was in force be deducted, the present application would be within time.

6. For all these reasons we think the present petition is not barred by limitation and therefore dismiss this appeal with costs.


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