Angarauthu Chettiar vs Muthayya Naidu alias Natesa Naidu

Srinivasan, J.—The appellant had obtained a decree for possession of Immovable property on 9th November, 1953. It would appear that

the judgment-debtor had executed an usufructuary mortgage in favour of the appellant but had failed to place him in possession of the property.

The suit was laid by the appellant for recovery of possession on the footing of the usufructuary mortgage in his favour. A decree followed both for

possession and for mesne profits. The execution petition, which has led to the appeal, was filed on 20th November, 1957. It was clearly beyond

three years from the date of the decree, arid to the objection raised on the administrative side of the District Munsif''s Court, an endorsement was

made on the execution petition, setting up Ordinance V of 1953, Act V of 1954 (Act of 1955) as saving the bar of limitation. The question that

arose, therefore, was whether the bar of limitation was overcome by one or other or both the enactments.

The learned District Munsif held, and the lower appellate Court agreed with him that under Proviso 3 to Section 3 of Act V of 1954, the suit for

possession of land should not be deemed to be a suit for recovery of debt. In answer to the further contention that the period of time, during which

the decree-holder believing in good faith that Section 3 of the Act applied to the execution application, should also be excluded u/s 5 of the Act,

both the Courts held that the plea was far from convincing and could not avail the decree-holder. The execution petition was accordingly dismissed

as barred by time. Hence this appeal.

The short question that arose is, therefore, clear. It is whether the bar of suits and applications which is provided for in Section 3 of Act V of

1954 would apply to the present decree which is a decree for possession of land and for profits relating to the period during which the plaintiff was

kept out of possession of the land. Section 3 states:

No suit for the recovery of a debt shall be instituted, no application for the execution of a decree for payment of money passed in a suit for the

recovery of a debt shall be made.

The question that arises is, therefore, whether this is a Suit which would come within the scope of the expression "" suit for the recovery of a debt

. Debt has been defined in the Act to mean any sum of money which a person is liable to pay under a contract for consideration received and

includes rent in cash or kind which a person is liable to pay or deliver in respect of the lawful use and occupation of land. On a plain reading of the

section, read with the definition of the expression ""debt"", it would seem to follow that, where a suit is for recovery of possession of land, it would

not be governed by Section 3 of the Act. The Proviso to the section removes, to my mind, all possible ambiguity. It states:

Provided that a suit for possession of land shall not be deemed to be a suit for recovery of debt by reason merely of mesne profits being also

prayed for.

This Proviso makes it clear that, even if there is a money claim by way of mesne profits associated with a suit for recovery of land, the existence

of such claim would not convert that suit into a suit for recovery of a debt.

It is further argued by the learned Counsel for the appellant that, in the suit in which the decree was passed, it was not mesne profits that was

claimed. He would have it that this proviso only refers to a suit where a person, entitled to the possession of land as owner, sues for possession,

and it would not apply to a case where an usufructuary mortgagee seeks to obtain possession of land, on the footing of the limited title in his favour.

It seems to me that, on a careful consideration of the proviso, such a construction does not easily flow therefrom. The expression used ""a suit for

possession of land"" is couched in perfectly general terms, and to impose a limitation upon it in the manner suggested by the above argument, seems

opposed to the ordinary rules of construction of statutes. I am, therefore, inclined to agree with the view taken on the interpretation of the proviso

by the Courts below.

The next argument is that, even assuming that Section 3 is not applicable, Section 5 gives the right of extended limitation to an applicant, who,

believing in good faith that Section 3 of the Ordinance or Section 3 of the Act applied to such application refrained from making the application.

Here again, I am faced with considerable difficulty. In all cases of execution petitions, which are on the face of it out of time, it is generally expected

that the parties making applications should explain how the applications are in time. In this case, though the application was filed well over a year

after three years'' period had expired, the petitioner did not at the time of filing the application specifically explain how the application was in time.

The executing Court therefore returned this application and it was resubmitted with the following : (This is the endorsement made by the counsel for

the petitioner.)

The defendants are agriculturists and the Moratorium Acts apply to this E.P. The decree, holder also bonafide believed that be could not apply for

execution because of Ordinance V of 1953-Act V of 1954 and Act I of 1955, and if the period of duration of the above Acts is excluded, this

E.P. is in time.

The question that arises for consideration is whether the decree-holder refrained from making application under the belief, "" in good faith "" that

Section 3 of the Act did apply to the application. Apart from the counsel''s endorsement upon the execution petition, no material is available,

wherefrom I can gather that the decree-holder was under the honest, but mistaken impression about the legal position. The fact, that at the time of

filing the application no such plea was advanced but was put forward only when the objection was taken oh administrative side, suggests an

afterthought, which is hardly what Section 3 implies by good faith and refraining from making application on the basis of good faith. I have given the

matter careful attention, and I find it difficult to sustain the contention that Section 5 protects the petitioner-decree-holder in any way. I accordingly

find that the conclusion of the lower Courts is right. The appeal is dismissed with costs. Leave granted.