Mammad vs Abdul Salam and Another

Velu Pillai, J

In this civil revision petition by the decree-holder, the point which arises is one of limitation for the execution of the decree. The decree is dated the 22nd September 1952. The first execution petition was made on the 21st September, 1953, and was dismissed on the 7th November, 1953; the next was made on the 19th September, 1957, and was dismissed on the 2nd December, 1957 The execution petition now under consideration was made on the 17th August, 1961. The court heard the decree-holder before numbering and registering the execution petition and dismissed it as time-barred. For the decree-holder, this revision petition was supported on the ground, that under the Kerala Agriculturists Debt Relief Act, 1958 (Act XXXI of 1958) which came into force on the 14th July, 1958, the decree became executable for the amount of each installment from the date thereof, and for the whole amount of the decree from the date of the 6th installment, no payment or deposit having taken place in the meanwhile, and therefore the present petition is within time. The judgment-debtors who have appeared to contest this revision petition, disclaimed that they are agriculturists and contended that the prior execution petition having been finally disposed of, the decree had become barred by limitation even before Act XXXI of 1958 came into force. These contentions must be regarded as still open to them in the lower court, They have also contended, that even if the decree was alive on the date of the Act, the dates of the several installments did not furnish fresh starting points for limitation, It is this contention that I propose to examine. It is plain that if a decree directs payment in installments, the dates of the installments would be the starting points. There is nothing opposed to principle, if the same conclusion is reached, if a statute were to stipulate payments to be made in installments. In Sankaralinga Konar v. Venkatachala Konar alias Govinda Konar ((1960) II M. L. J. 67) this view was taken under the Madras Indebted Agriculturists (Repayment of Debts) Act I of 1955, the court observing that "by reason of the operation of this statute the decree amount is payable only in installments as provided therein and the decree has become an installment decree by the force of the statute. An installment decree does not necessarily mean a decree which ex facie makes the amount due under the decree payable in installments. If the decree-holder can recover money only in installments as provided by the statute and has to wait for the installments to become due, it would be unreasonable to hold that all the time he was made to wait for the payment of the installment, the statute of limitation was running against him." This case arose in execution of a decree. A Division Bench of the Madras High Court in Bichal Naidu v. S, K. Muthuramalingam ((1962) II M.L J. 352) applied the same reasoning to a suit observing, that "where a special enactment, which is invested with an overriding power with regard to any other law, creates this effect of a liability to pay the debt only iii installments, it is a reasonable interpretation to hold that each installment will furnish a distinct cause of action. At least for the purpose of limitation, and the right to sue, the integrality of the debt must thus be held severed into distinct parts." The Bench affirmed a similar view held in Gopal Udayar Vs. Mangala Udayar and Another, .

In Act XXXI of 1958 aforesaid, Section 4, sub-section (5) has enacted, that where any installment of any debt is not paid on the due date, the creditor shall be entitled to recover the same as provided in section 10, though if there had been default in the payment of six consecutive installments, the whole amount due shall become payable forthwith. Section 10 sub-section (1) has provided, that where under a decree passed before the Act, a debtor has failed to make payment for any one of the installments, the decree-holder shall be entitled to execute the decree only for the realization of the amount of the installment which is in arrear, and so on, in respect of other installments, though in the event of six consecutive defaults, the whole amount is realizable. The necessary implication of this is that the right to execute the decree in the above manner arises as on the dates of the concerned installments, in other words, the time starts running from such dates, for as pointed out, it is unreasonable to hold, that during the time that the decree-holder was prevented from realizing the decree amount the statute of limitation had been operating against him. Section 7 of the Act which enables a decree-holder or a judgment-debtor to have the decree amended in terms of the Act, does not impinge on this line of reasoning, for even without an amendment of the decree the judgment-debtor would have a right to pay in installments. This has been so held in Kuruvila v. Joseph (1960 K. L. J. 1435.) The provision which has some relevance, is Section 21 which reads as follows:

Where a debt is payable by an agriculturist either by himself or jointly with a non-agriculturist and where the agriculturist makes payment or deposits amount towards that debt as provided for in Section 4, 8, 11, 12 or 14, a fresh period of limitation shall be computed from the time when the payment or deposit was made both against the agriculturist and non- agriculturist.

There is a similar provision in Section 9 of the Madras Act above referred to, which was not adverted to in the Madras cases cited. Prima facie Section 21 is applicable also to a decree passed against an agriculturist alone, as distinguished from a decree passed against an agriculturist and a non-agriculturist, and the language suggests that a fresh period of limitation shall be computed only upon the payment or deposit by the agriculturist u/s 4 and not otherwise. But so to construe the Section would involve the consequence already pointed out, that though the decree-holder has a right to execute the decree in case of non-payment only for the amounts of the several installments, that right might have become lost by the running of time against him during the very period when he could not have exercised it. The better view seems to be to hold, notwithstanding the inaccurate language employed, that Section 21 is intended to provide for a fresh period of limitation against the non-agriculturist, upon payment of the debt in terms of the Act by the agriculturist debtor.

I therefore hold, that if the decree was not barred on the date of the commencement of Act XXXI of 1958, the decree-holder would have a right to realize the amounts of the various installments, and in the event of six consecutive defaults the entire amount due, limitation being computed from the dates of the installments. The date of the 6th installment was the 14th July, 1961, and the present execution petition filed roughly one month afterwards cannot be dismissed as barred on the ground held by the lower court, The case has to go back for deciding afresh the question of limitation on other grounds which may be raised by the judgment-debtors. The order is accordingly set aside; no costs in this revision petition.