Kunhimutty vs Bankalath Moideenkutty

Govindan Naif, J.—This appeal arises from orders passed in execution on the objections raised by the judgment debtor that the execution of the decree is barred by reason of the provision in Section 48 of the Code of Civil Procedure. This contention found favor with the execution court and the execution petition moved by the respondent was dismissed. In appeal however the learned ''District Judge reversed the decision of the execution court holding that there is no bar, and allowed execution to proceed. Counsel on behalf of the appellant has challenged this decision. He has questioned not only the principle relied on by the District Judge, which incidentally we are not going to refer to or rely on, for we think the case can be and ought to be decided on another principle, but challenged the submission made by the respondent ''that by virtue of Section 4 of the Interpretation of General Clauses Act, 1125 the right which it is said had vested in the respondent by virtue of Section 6 (2) of the Kerala Agriculturists'' Debt Relief Act, 1958 as it stood before its amendment by Act 2 of 1961, is saved. Even this position we are not going to consider in this appeal for we think there is a principle, which we shall state presently, relied on by a Division Bench of this Court in Velayudhan and others v. Gokulan and others reported in 1964 KX.T. 690, which must answer the issue in this case, in favor of the respondent.

That principle has been stated in the decision in Bell and another v. Gosdan reported in 1960 Vol. I of All England law Reports 266. Halsbury''s laws of England Vol. 24 page 199 has summarized the position thus:

If an enactment renders a payment irrecoverable for a certain period, there may be a consequence, in default of express statutory provision, that the running of time under the appropriate limitation enactment is suspended while the payment is irrecoverable.

This passage has been relied on by this court in a similar situation in. Velayudhan and others. v. Gokulan and others reported in 1964 KLT 600. This principle we think must govern this case. We find that a similar view has been taken by Beaumont, Chief Justice in Govindanaik Gurunathanaik Kalghatgi v. Basawanroka Paratanos Karaji reported in 1941 Bombay 203. His Lordship chose to rest the decision on the suspension of the running of time and had relied on the decision of the Calcutta High Court in Lakham Shundar Sen v. Madhusudan Sen reported in 35 Calcutta 209. This decision of the Calcutta High Court has been approved by the Privy Council in Mrityamoni Dassi v. Lakhan Chandra Sen reported in 43 Calcutta 660.

The principle is that when by a statute it has become impossible to take action for the recovery of a debt whether it be by instituting a suit, or by filing an execution application for the realization of the amount decreed, the period of limitation prescribed by the Law of Limitation ceases to run and remains suspended till that disability is removed. This has been clearly stated by Sir Raymond Evershed M.B. in Bell and another v. Gosdan reported in 1950 Vol. 1 of All England Law Reports 266.

After referring to Section 17 of the Limitation Act which reads thus:

No action shall be brought............... to recover arrears, of rent............... after the expiration of six years from the date on which the arrears became due.

The Master of the Rolls expressed the view that the inhibition introduced by the Regulation of 1940 which was considered in the judgment had the effect of suspending the running of time u/s 17 of the Limitation Act, 1939 just read. He expressed his views thus:

The rent was due in 1940, it is argued, and it remained due, although during the period of the so-called moratorium it could not be recovered by action as the result of the regulation, and S.17 States in unequivocal terms that after the expiration of six years no action can be brought. In my judgment the necessary effect of the regulation, which has, of course, the effect of an act of Parliament, when set beside the Limitation Act, is that, so long as it applied and the rent was irrecoverable by its terms the running of time under S. 17 must be treated as suspended. The matter may be tested in this way. Supposing this evacuation period was some fixed period, as, for example, seven years. The regulation would then provide, in effect, ''during the seven years period of the evacuation no action shall be brought to recover rent''. As a necessary implication from that language, when that period was over, title ban on the bringing of an action would cease and that in turn necessarily involves that the running of the limitation period under the statute must be regarded as having been suspended for the period.

Here we are concerned with Section 48 of the CPC which provides:

(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) ..............................................................................

We have not read clause (b) of sub-section (1) of Section 48 and subjection (2) thereof as they are not relevant for the purpose of this case. By the passing of the Kerala Agriculturists Debt Relief Act, 1958, Act 31 of 1958 which came into force on 14-7-1958 a ban has been imposed by Section 3 thereof that no application for execution of a decree in respect of a debt shall be made against any agriculturist la any court before the expiry of six months from the commencement of the Act. The decree in this case was passed on 27-3-1945 and it is admitted before as that due to various extensions of time granted by the predecessor enactments to Act31 of 1958, the decree holder would have been on time if he filed the application in October 1958. Though Section 3 of Act 31 of 1958 bars execution of the decree only for six months; it is clear from the provisions of Sections 4 and 10 of the Act as well as the scheme thereof that execution of the decree other than for installments that had fallen into arrears is precluded. There is a provision in the proviso to sub-section (5) of Section 4 to the following effect. Provided that if default is made in payment of six consecutive installments the debtor shall not be entitled to the benefits of the provisions of sub-section (2) and sub-section (3) and the whole debt together with such interest as may have accrued thereon less any amount that have already been paid shall be forthwith payable

In Section 10 of the Act provision has been made for steps being taken by the decree holder if so minded to execute the decree in respect of the installment which have fallen into arrears. This provision of course does not permit the decree- holder to execute the decree as such. This became possible in this case by virtue of the six consecutive defaults and such defaults were completed on 14-7-1961. The execution application dated 3rd August, 1961 was filed in court on the 4th August 1961. If the period from the commencement of the Act, namely 14-7-1958 to the date of the default of the six consecutive installments i.e. 14-7-1961 is excluded, there is no case for the appellant that, the application is still barred by virtue of the provision in Section 48. For the reasons we have stated and the principle embodied in the decisions which we have referred to, we take the view that this period has to be excluded. The application for execution is therefore not barred by Section 43 of the Act. No question arises in this case about the three years rule under the Limitation Act being violated. There is no bar therefore to execute the decree. We dismiss this appeal but make no order as to costs.