Ayi Goundan and Another vs Solai Goundan and Another

Alfred Henry Lionel Leach, C.J.—Article 182(5) of the Limitation Act, 1908, as amended by the Indian Limitation (Second Amendment)

Act, 1927, states that for the execution of a decree or order not provided for by Article 183 or by Section 48 of the CPC the period of limitation

shall be three years from the date of the final order passed on an application for execution or on an, application to take some step-in-aid of

execution. Before the amendment in 1927 the period commenced from the date of the application. The corresponding article in the Limitation Act

of 1877 was Article 179(4), which also made the starting point of limitation the date of the application. One of the cases, to which reference will be

made arose under the Act of 1877, some of them under the Act of 1908 before the amendment and some after the amendment. Nothing really

turns on this, because for the purpose of answering the question referred it is immaterial whether the starting point is the date of the application or

the date of the order passed thereon. The question is whether an application to take a step-in-aid of execution of a decree or order can be made

when there is no application for execution pending.

The decisions of this Court reveal a strong conflict of opinion, but in passing it may be mentioned that in some of the cases very little reason has

been given for the opinion expressed. We will take first the cases which have decided that an application to take a step-in-aid of execution can be

made the starting point, notwithstanding that an application for execution is not pending. These are Kunhi v. Seshagiri (1909)51.0.758, Sankara

Nainar v. Thangamma AIR 1929 Lah, 57, Kannan v. Avulla Haji ILR (1882) Mad. 141 and Sankaranarayana Pillai and Others Vs. Puthiya Vettil

Thangamma and Another, all of which were decided by Division Benches.

In Kunhi v. Seshagiri (1909)51.0.758, an application was made by a decree-holder to the Court for a certificate that a copy of a revenue

register was necessary in order to proceed in execution. Apparently the revenue authorities were in the habit of refusing an application for a copy

of the register without a certificate that a copy was required for a necessary purpose. An application for execution had at that time to be

accompanied by a copy of the revenue register. The question before the Court was whether the application to the Court for a certificate amounted

to a step-in-aid of execution. The Court said that it did and consequently started a fresh period of limitation. The importance of this decision is that

there was no application for execution pending, nor could there be one until a copy of the revenue register had been obtained. The Bench was

composed of Innes and Muttuswami Ayyar, JJ. In the course of his judgment, Muttuswami Ayyar, J., pointed out that Clause 4 of Article 179 of

the Limitation Act, 1877, referred first to an application for actual execution and then to a step-in-aid. This, he considered, led to the inference that

the step-in-aid of execution might be some preliminary proceeding prior to the actual execution.

In Sankara Nainar v. Thangamma AIR 1929 Lah 57, Ramesam, J., remarked that there was no warrant for the view that an application to take

a step-in-aid of execution should be made in execution and no authority had been cited in support of the proposition. The learned Judge did not

proceed to discuss the question and it must be taken that he formed this opinion on the wording used in the article. Spencer, J., who was of the

same opinion, said that the law-only required that there should be an application in accordance with law made to the proper Court.

In Kannan v. Avulla Haji ILR (1882) Mad. 141 , Devadossand Sundaram Chetty, JJ., referred to those two cases and said that it was too late

in the day to question the principle laid down in Kunhi v. Seshagiri (1909)51.0.758. The same question arose in M. Krishna Pattar Vs. K.

Seetharama Pattar, which was decided by Devadoss and Wallace, JJ., who observed that where the act of the plaintiff was not in furtherance of

execution or in a pending execution, his act could not be said to be one in aid of execution. It was sought to read this observation as supporting the

opinion that there could not be an application to take a step-in-aid of execution when there was no application for execution pending; but in

Kannan v. Avulla Haji ILR (1882) Mad. 141 it was made clear that M. Krishna Pattar Vs. K. Seetharama Pattar, was not to be regarded as

going to this length, and as we have indicated, the Court there held that Kunhi v. Seshagiri (1909)51.0.758 should be followed.

The conflict in decisions was referred to in Sankaranarayana Pillai and Others Vs. Puthiya Vettil Thangamma and Another, . The Division

Bench, which heard that appeal, considered that the balance of the decisions appeared to confirm the correctness of the view taken in Sankara

Nainar v. Thangamma (1909)51.0.758.

The decisions in which the contrary view has been expressed are Kuppuswami Chettiar v. Rajagopala Aiyar AIR 1929 Lah. 57

Balasubramaniam v. Chit Co. Yela Nidhi (1882) ILR 5 Mad. 141 Sankaranarayana Pillai and Others Vs. Puthiya Vettil Thangamma and Another,

and Rgmasubbayya v. Thimmayya (1926) 52 M.L.J. 1: ILR 50 Mad. 403. These were also decided by Division Benches. The first of these

appeals was heard by Ayling and Venkatasubba Rao, JJ. The basis of the decision there was the opinion that a man could not be said'' to take

some step-in-aid of a petition which had not been initiated. The Court did not, however, consider the case of Kunhi v. Seshagiri (1926) 52 M.L.J.

1: ILR 50 Mad. 403 which clearly shows that there can be an application which is a step-in-aid of execution outside proceedings for execution. In

none of the other cases was any reason given for the view expressed and in no case was Kunhi v. Seshagiri (1926) 52 M.L.J. 1: ILR 50 Mad.

403 mentioned or considered.

The question now under discussion was raised before Phillips and Madhavan Nair, JJ., in Krishna Pattar v. Seetharama Pattar AIR 1919 Mad.

The learned Judges said that they were not prepared to accept Kuppuswami Chettiar v. Rajagopala Aiyar AIR 1929 Lah. 57 without further

consideration of the matter in the light of all the cases decided by the Court and left it there.

9 We consider that Kunhi v. Seshagiri (1926) 52 M.L.J. 1: ILR 50 Mad. 403 should be followed. The question roust be decided on the wording

of the article and the wording shows that the application to take a step-in-aid of execution is entirely separate from the application for execution.

The important word is ""or"". Therefore a fresh period of limitation starts from the date of the final order in an application to take a step-in-aid of

execution as well as from the date of a final order in an application for execution. Here we are not called upon to decide what is or what is not a

step-in-aid. If an application amounts to an application to take a step-in-aid, that is sufficient and it does not depend whether there is then pending

an application for execution.

Consequently the answer which we give to the question referred is that it is not necessary for the purpose of saving limitation under Article

182(5) of the Limitation Act that an application taken as a step-in-aid of execution should be made in a pending execution petition.

The costs of this reference will be made costs in the appeal.