Dakshinamurthi Pillai vs Vedamurthy Mudaliar and Others

Since the appellant was a party to the decree under execution and the matter relates to the execution, discharge or satisfaction of the decree, the

case is one u/s 47, C. P. Code, and an appeal lies. See M.S.M.M. Meyyappa Chetty alias Chokkalingam Chetty and Others Vs. A.V.P.L.

Chidambaram Chetty and Another, , Appia K.R. Rukmani Ammal and Appia Ramachari and Another Vs. Kuttuvava Narasimma Iyer and

Another, and Abdul Kasim v. Thawbusami Pillai (1916) 5 LW 701. In this view it is open to a party to the decree to raise the question of limitation

and the Lower Court was not justified in refusing to allow that point to be raised.

We remand the case for a finding on the issue whether E. P. No. 150 of 1924 (4th April, 1924) is within time.

Fresh evidence may be adduced on both sides. Finding should be submitted within six weeks and ten days will be allowed for filing objections.

Note :--The case on the merits has been argued but not decided by us.

In compliance with the order contained in the above judgment the Subordinate Judge of Trichinopoly submitted the following

Finding :--""Whether the E. P. No. 150 of 1924, dated 4th April, 1924, is within time.

I therefore hold that E. P. No. 150 of 1924 was within time and submit a finding accordingly.

The first point for decision in this appeal is whether E. P. No. 150 of 1924 is barred by the 12 years'' rule u/s 48, C. P. Code. We remanded

the case to the Lower Court for a finding and the Lower Court has returned a finding that it is not barred. We are not able, on the state of the law

as it stands at present, to agree.

The decree was passed on 11th February, 1907 and in the decree it was stated that mesne profits were to be ascertained in execution. The first

appeal against that decision was disposed of by this Court on 23rd February, 1911 and it did not interfere with the order regarding the

ascertaining"" of mesne profits. In 1917 an execution petition for the ascertainment of mesne profits was put in and an order thereon was passed on.

14th November, 1917. On 4th April, 1924 an Execution Petition No. 150 of 1924, the last of a series of execution petitions, was put in for the

recovery of the amount of mesne profits ascertained. This execution petition is obviously more than 12 years after the passing of the High Court

decree, and u/s 48 of the CPC it would prima facie be out of time. Two arguments, however, were put before us to show that it was not out of

time : (1) that ""the date of the decree"" really means the date when the decree becomes executable, and it is argued that in the present case that

would be 12 years from the date of ascertainment of the mesne profits, 12 years from 1917, and for this position Aiyasamier (dead) and Others

Vs. Venkatachela Mudali and Another, is relied upon. The second argument is that the order ascertaining the mesne profits is a subsequent order''

within the meaning of Section 48(b), an order for the payment of money. We think the latter contention cannot stand against the Full Bench

desision in Aiyasamier (dead) and Others Vs. Venkatachela Mudali and Another, . It is perhaps possible to say that an order for mesne profits is

an order for payment of money; but it is not an order for the payment of money on a certain date, according to the interpretation of that phrase by

that Full Bench decision. Certain obiter dicta by Devadoss and Waller, JJ., in Swaminatha Odayar v. Thiagarajaswami Odayar (1925) 23 LW 26,

Phillips, J., in Nawab Shuja-ul-Mulk Bahadur Vs. Umir-ul-Umra Bahadur and Others, would seem to indicate that such an order might be treated

as an order for the payment of money at a certain date within the purview of Section 48(1)(b), but we think that the Full Bench decision must

govern this point. As to the first point the contention seems to us reasonable and has been in fact laid down in general termis by the Privy Council in

a ruling in Rameshvar Singh v. Homeshvar Singh (1920) LR 48 IA 17 : 40 MLJ 1 (PC). But there is another Privy Council case Khulna Loan Co.

v. Jnanendra Nath Bose 22 CWN 145 which stands directly in the way. That judgment, although brief, adopts the arguments of the High Court of

Calcutta which lay down very definitely that Section 48 means that no execution petition can be put in after 12 years of the date of the decree, the

date being the date prescribed under Rule 7, Order 20. We feel that it is a reasonable view that the 12 years should run from the time when the

relief asked for was ascertained and decided, which is the view contained in the Privy Council decision in Nawab Shuja-ul-Mulk Bahadur Vs.

Umir-ul-Umra Bahadur and Others, . But that was a case under Article 182 of the Limitation Act, while the Calcutta Weekly Notes case is

directly on Section 48, Civil Procedure Code, which we now have to interpret. The only ground for differentiation between the Calcutta Weekly

Notes case and the present is that the former was a mortgage decree in which the sum to be recovered was definitely ascertained when the decree

was passed, and the decree, as far as it related to the recovery of money was immediately executable, whereas in the present case, as the decree

did not ascertain the amount of mesne profits, it was not immediately executable for money. But this style of argument was advanced before the

Calcutta High Court in the Weekly Notes case and was not accepted by it or their Lordships of the Privy Council. We must, constrained by the

ruling of the Privy Council, hold that E. P. No. 150 of 1924 is barred by time. We have been asked to refer the case to a Full Bench in view of the

general importance of the question raised, but, as the Privy Council ruling must, until it is altered, govern the law in this country, and as the question

is only acute in cases where the original decree was passed under the old Civil Procedure Code, since now the amount of mesne profits is

ascertained in the suit and embodied in a final decree, we decline to refer the matter as suggested.

An argument on the footing of res judicata was advanced by respondent that since, in a prior E. P. No. 139 of 1923, dated 18th July, 1923

which was also put in more than 12 years from date of High Court decree, no objection on the ground of limitation had been taken by appellant, he

was barred by res judicata from pleading that bar to any subsequent E. P. We are unable to follow this argument. All that was implicitly decided on

E. P. No. 139 of 1923 was that that petition was not barred by the 12 years'' rule. That decision cannot ""for ever remove the operation of Section

48, Civil Procedure Code, out of the way of all future E. Ps. There is no substance in this contention.

It is unnecessary to go into the merits of the E. P. We hold that it is barred by Section 48, Civil Procedure Code. We must allow the appeal

and dismiss E. P. No. 150 of 1924 with costs to appellant in both Courts.

No order is necessary on the connected Civil Revision Petition.