C. Chenchamma vs Venkatarathinam Naidu and Another

Jagadisan, J.—I have heard learned Counsel on both sides on the merits of this Civil Miscellaneous Second Appeal. The only question that

arises for consideration is whether the execution petition filed by the Appellant before the District Munsif''s Court of Tiruvallur, E.P. No. 466 of

1955, is barred by limitation or barred by the provisions of Section 48, Code of Civil Procedure. The course of execution proceedings is not fully

depicted in the judgment of the Courts below, but, however, I shall refer to the facts as they appear and as they are set out in those judgments.

The Appellants obtained a simple money decree recoverable from the Respondents and some others on 15th March 1941 in Original Suit No.

546 of 1940, on the file of the District Munsif''s Court, Sholinghur. He filed the petition, Execution Petition No. 116 of 1953, in the Sholinghur

Court for execution of the decree. The execution proceedings appear to have been transferred to the District Munsif''s Court, Chittoor and again

from the Chittoor Court to the District Munsif''s Court, Tiruttani, due to the reorganisation of States whereby the territorial limits of the Sholinghur

Court became part of the Madras State. It also appears that the Appellant was prevented from executing the decree in respect of the property

within the territory of Tiruvallur Munsif because of the Madras Ordinance No. v. of 1953 and Madras Act v. of 1954. The execution proceedings

were, however, transferred from the Tiruttani Court to the Munsif''s Court of Tiruvallur on 7th August 1955. Execution Petition No. 466 of 1955,

from out of which this second appeal arises, was filed in the Tiruvallur Court on 25th August 1955. The question is whether this petition offends the

provisions of Section 48, Code of Civil Procedure.

The order of the learned Subordinate Judge holding that the Appellant (decree-holder) is disentitled to execute the decree as twelve years had

lapsed from the date of the decree, viz., 15th March 1941, does not appear to be sound as the learned Judge failed to take into account the

provisions of Madras Act I of 1955. I shall now refer to the relevant statutory provisions. Section 48, Code of Civil Procedure, is as follows:

(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same

decree shall be made upon any fresh application presented after the expiration of twelve years from--

(a) the date of the decree sought to be executed, or

(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at

recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

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The word debt as defined by Madras Act I of 1955, includes decree also. Section 2, Clause (b) of Madras Act I of 1955 defines debt as follows:

debt means any liability in cash or kind, whether secured or unsecured, due from an agriculturist on the 1st October 1953, whether payable under

a contract or decree or order of a Court, civil or revenue,....

It is not necessary to refer to the exceptions provided for u/s 2(b). Now, Section 4 of Act I of 1955 is the crucial provision.

Section 4(1).--Notwithstanding any law, custom, contract, or decree of Court to the contrary, an agriculturist shall be entitled to pay within four

months of the commencement of this Act the interest due on any debt due by him up to the commencement of this Act and one-eighth of the

principal outstanding or one-fourth of the total amount outstanding, whichever is less, and the balance of the debt in three equal annual instalments

on or before the 1st July of each of the succeeding three years with the interest due on such instalment up to that date.

Explanation.--In the case of a decree, the amount decreed shall be deemed to be the principal.

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(7) The provisions of Sub-section (1) shall, for purposes of execution, be deemed to be a subsequent order of Court within the meaning of Clause

(b) of Sub-section (1) of Section 48 of the Code of Civil Procedure, 1908 (Central Act v. of 1908).

Section 48 of the Code of Civil Procedure, enacts a bar to the presentation of a fresh application for execution after the expiration of twelve

years, which would run ordinarily from the date of the decree sought to be executed, or, from the date of the default of payment in case where the

decree or any subsequent order directs payment of money to be made at a certain date or at recurring periods. If the decree directs payment of

the decree amount on specified dates or at recurring periods, the decree-holder cannot recover the amount contrary to the terms of the decree at

any time anterior to the dates fixed or the periods recurring. Surely the twelve-year period cannot, in such cases, commence to run from the date

on which the decree is passed. Necessarily, therefore, the period of twelve years has to be computed only from the date of the default in making

the payment. The default would arise only after the dates or periods specifically mentioned in the decree. The terms of the decree can be modified

by a subsequent order of a competent Court. For example, Order XX, Rule 11(2) of the Code of Civil Procedure, as amended in Madras,

provides that the Court may direct the payment of the decree amount by instalments. The provision reads as follows:

After the passing of any such decree the Court may, on the application of the judgment-debtor and after notice to the decree-holder, order that

payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of

the property of the judgment debtor, of the taking of security from him, or otherwise, as it thinks fit.

A decree which is converted into an instalment decree by an order of Court under Order XX, Rule 11(2) would fall within Section 48(1)(b) of the

Code of Civil Procedure.

Reference may be made to the decisions of this Court reported in Perumal Naicker and Ors. v. Davood Rowther AIR 1917 Mad. 188, and in

Tata v. Ramachandra I.L.R.(1883) Mad. 152, in support of this position.

The real question now in issue is the effect of Section 4, Sub-Section 7, of Madras Act I of 1955. By the operation of the statute a decree for

payment of a single amount is converted, as it were, into an instalment decree, the first instalment being payable within four months after the

commencement of the Act (1st March 1955), the second instalment on 1st July 1956, the third on 1st July 1957 and the fourth on 1st July 1958.

The statute provides that this statutory modification of the decree has the same effect in law as a subsequent order of Court within the meaning of

Section 48(1)(b) of the Code of Civil Procedure. It cannot be doubted that a decree the execution of which is not barred by Section 48 on the

date of the commencement of Madras Act I of 1955, would fall within the mischief of this Act. Of course the debt which includes a decree should

be a debt due from an agriculturist on the 1st October 1953, as that is the definition the word debt in the Act. If there is a decree debt payable by

an agriculturist on 1st October 1953, and, if the decree is capable of being executed on the date of the commencement of the Act without any bar

of limitation or without the bar u/s 48 of the Code of Civil Procedure, Section 4, Sub-Section 7, would come into play and the integrity of the

decree is impaired by reason of the modification that the decree amount becomes payable in four instalments as laid down u/s 4, Sub-Section 1.

In Sankaralinga v. Venkatachala ILR (1960) Mad. 567 I had occasion to consider the scope and effect of Section 4 of Madras Act I of 1955.

I held that by reason of Section 4 of the Act, a decree amount due by an agriculturist is payable only in instalments and that by force of that statute

the decree becomes an instalment decree and limitation has to be computed accordingly. At page 569, I have observed as follows:

An instalment decree does not necessarily mean a decree which ex facie makes the amount due under the decree payable in instalments. If the

decree-holder can recover money only in instalments as provided by the statute and has to wait for the instalment to become due, it would be

unreasonable to hold that all the time he was made to wait for the payment of the instalment, the statute of limitation was running against him.

Reference may also be made to the provisions of Sub-Section 7 of Section 4 of Madras Act I of 1955 which clearly indicates that the decree is in

the nature of an instalment decree.

In Gopal v. Mangala ILR (1962) Mad. 330, Srinivasan, J., held that Section 4 of the Act lays down the rights and obligations between the

parties to a transaction in variation of the contract they have entered into, that it provides that a debt shall be payable in a particular manner, viz., in

instalments, and that each instalment furnishes a cause of action for the creditor and that he can sue for the recovery of that instalment if it is not

paid within the time prescribed. The period of limitation for such cases was held to be governed by Article 74 of the Limitation Act.

This was no doubt a case of an ordinary debt which had not merged into a decree. But, as pointed out already, the definition of debt under the

Act is comprehensive enough to include a decree of Court also. In my opinion, reading Section 48 , Code of Civil Procedure, and the provisions

of Section 4, Sub-Section 7 of Madras Act I of 1955, it seems to be clear that a decree debt recoverable from an agriculturist on 1st October

1953, becomes statutorily converted into an instalment decree payable on the dates mentioned in Section 4, Sub-Section 1, of Madras Act I of

1955, and, to such a decree Section 48, Sub-section (1)(b), of the CPC is necessarily attracted. It cannot, therefore, be said in the present case

that the Appellant''s application for execution, Execution Petition No. 466 of 1955 is barred by limitation u/s 48 of the Code of Civil Procedure.

In the result, the Civil Miscellaneous Second Appeal is allowed and the order of the learned Subordinate Judge of Chingleput is hereby set

aside and that of the District Munsif of Tiruvallur is restored. There will, however, be no order as to costs throughout. The execution petition,

Execution Petition No. 466 of 1955, is hereby restored to the file of the executing Court to be disposed of afresh in the light of the observations

contained in this judgment. No leave.