Easwara Pillai Krishna Pillai vs Raman Pillai Velayudhan Pillai

Nandana Menon, J.—This second appeal is preferred by the Plaintiff decree-holder and is directed against the concurrent decisions of the lower courts to the effect that the decree was barred. The decree-is'' dated 6th June 1944 corresponding to 24-10-1119. It was a registered one and hence the decree-holder has six years'' time. The first execution petition was filed on 24-12-1126 corresponding to 9-8-1951. That was rejected on the same day.

The next execution petition was filed on 25-9-1951. When the judgment debtor contended'' that the decree was barred while the decree-holder relied upon certain alleged acknowledgments in Exts. A to G to save limitation and to show that the 1st execution petition was not barred in which case the 2nd petition is in time. Both the lower courts held that the statements relied upon by the decree-holder were not sufficient acknowledgments in law to get over limitation.

What is contended on behalf of the Plaintiff is that the statements in Exts. E and G definitely acknowledged the existence of the liability under the decree in question and hence are sufficient to get over limitation. Ext. E is the copy of memorandum of appeal in a civil miscellaneous appeal preferred for getting the suit restored after setting satire the decree passed. Details of the decree are not referred to therein. Ext. G is the copy if a petition filed in the aforesaid C. M. A. staying execution proceedings it another suit the ground that it was connected with O.S. of 1118.

There all the circumstances leading to the g of the decree in O.S. 491 of 1118 are red to. While contending that the hypothecaond which was the basis of the suit was not tad by consideration and hence the decree was wrong the statements therein are enough admissions on the part of the Defendant of the existence of an enforceable decree against him. The question is whether such statements are sufficient acknowledgments to get over limitation. - ''Chacko v. Ouseph '', 26 Ker LJ 942 (A), deals with a case of like nature.

There also the statement that was relied upon was one in an application to set aside the decree on the ground that the same was passed ex parte. It was held that as the words used were sufficient to show that there was an existing jural relationship of creditor and debtor such references to the decree amounted to an acknowledgment in law. which save limitation. ''Chainamulum-mal v. All Akbar'', 23 Ker LJ 1300 (B), and Sladhavan Pillai v. Kalianl Aroma'', 29 Ker LJ (C), referred to on behalf of the Defendant are only to the effect that the statements relied upon must be such as to show the existence of the liability under an enforceable decree and not merely the passing of a decree.

They do not overrule 26 Ker LJ 942 (A), ''Aiy-appan Ittaman v. R. Thieyyol'', 1953 Ker LT 77 : AIR 1952 Ker 518 ) (D), relied on by the lower appellate court does not apply to the facts of this case. For here there is an admission of the existence of a binding decree though it was further stated that the decree was wrongly passed. Coming to Indian decisions - Jatiya Kalyan Insurance Society Ltd. Vs. Saroj Ranjan Chaudhuri, in a way supports the Defendant. But that refers only to adjournment applications relied upon by the decree-holder.

Alayil Kalathil Kambil Achuthan Vs. Kunnambrath Abdu and Others, only lays down that a mere statement about the passing of a decree will not amount to any acknowledgment as that will not indicate the existence of an enforceable decree. On the other hand - ''Sukhamoni Chowdhrani v. Ishan Chunder Roy'', 25 Ind App 95 (PC) (G); and ''Hingan Lal v. Mansa Ram'', ILR 18 All 384 ''(H), support the position taken up by the Plaintiff. So there is no ground to depart from the principle laid down in 26 Ker LJ 942 (A)'', which is in full support of the Appellant''s position. So the lower courts were wrong in holding that the decree is barred.

In the result, the second appeal is allowed with costs.