Masilamani Mudaliar vs Sethuswami Aiyar and Another

Ayling, J.—1st respondent in this caseis the assignee decree-holder in Original Suit No. 379 of 1906 on the file of the Court of the District

Munsif of Kumbakonam, and the sole question for disposal is whether his Execution Application (E.P. 526 of 1914) presented on 12th August

1914 was barred by Article 182 of the Indian Limitation Act, 1908 (Schedule I). The next previous application of which there is record was

Execution Petition No. 385 of 1911, presented on 13th July 1911; but the decree-holder relies on the following circumstances to save limitation:

(1) An oral application in aid of execution presumed to have been made on the 12th August 1911, in the course of the hearing of Execution

Petition No. 385 of 1911.

(2) An alleged payment towards the decree on 17th August 1911.

As regards the first, the facts are simple. In Execution Petition No. 385 of 1911, the decree-holder applied for attachment and sale of the

judgment-debtor''s moveables after issue of the preliminary notice required by Order XXI, Rule 22 of the Code of Civil Procedure. Notice was

accordingly issued to the judgment-debtor for 12th August 1911. On that date as the judgment-debtor did not appear, attachment order was

issued; but, as the decree-holders failed to pay batta within the time allowed, the petition was dismissed on the 26th August 1911. The

Subordinate Judge says:

It seems to me, looking to the liberal spirit in which acts done by a decree-holder are viewed by the Madras High Court to operate as steps in aid

of execution (vide 1914, Madras Weekly Notes, page 563) it will not be wrong to hold that the decree-holder should be presumed to have made

an oral application for issue of a warrant of attachment on 12th August 1911 and this was a step-in-aid of execution.

Now in my opinion the utmost that can be presumed is that the decree-holder was present in court on 12th August 1911, either in person or by

pleader, and intimated his desire to proceed with execution. He had already asked for attachment in his written application; and assuming that he

repeated his request by word of mouth in court, I am unable to see any ground for viewing this as a fresh step-in-aid of execution. The point is, not

that the application was oral, but that it was the merest repetition, and an entirely superfluous repetition, of an application, which he had already

made in writing, and which was pending orders of the court. None of the cases relied on by the 1st respondent''s vakil seem to me to be of use to

him. In the Calcutta Full Bench Case, Ambica Pershad Singh v. Sardari Lal ILR (1884) 10 C. 851 there was an application to issue proclamation

nearly a year after the attachment, which indeed the Judgment-debtor claimed to be no longer subsisting ; and Judgment of Garth, C.J., makes it

quite clear that he held that, without such a fresh application, no further action should have been taken by the court. In Vijiaraghavalu Naidu v.

Srinivasalu Naidu ILR (1905) M. 399 the batta Memorandum was accompanied by a written application; and the court lays stress on the fact that

the proclamation would not have issued if the batta Memorandum had not been put in. Abdul Kader Rowther v. Krishnan Malaval Nair I.L.R

(1914) M. 695 is a case in which Sadasiva Aiyar and Spencer, JJ., held that an oral application by a decree-holder for an adjournment to enable

him to adduce evidence was a step-in-aid of execution. This is a view, in which speaking with all deference, I find it impossible to concur; and, if

the facts of that case were similar to those of the present case, I should be inclined to make reference to a Full Bench. Fortunately they are not;

and with the general principle enunciated I have no quarrel, i. e., if even an oral application is for an order which is really a step-in-aid, it may be

treated as within the scope of Article 182 of the Indian Limitation Act. I am inclined to think however that such applications will be rare.

The most recent case, Varadaraja Mudali Vs. Murugesam Pillai and Others, is cited chiefly for the proposition that Article 182 of the Indian

Limitation Aet, 1908, should receive a fair, liberal, and not too technical construction so as to enable the decree-holder to obtain the fruits of his

decree. I quite agree but it seems to me that the danger is, not of too technical construction of the article, but that the courts in their anxiety to

prevent justice being defeated by technicalities, may introduce so much uncertainty, that it will be most difficult for any party to know whether

execution of a decree is barred or not. Where the starting point is the recorded date of presentation of a formal application, we are on sure ground;

but if any unrecorded 6ral intimation of the decree-holder''s desire to proceed may be treated as such, the ascertainment of the period will be beset

by extraordinary difficulties. I feel confident that nothing of the kind was contemplated by the Legislature and that there is nothing in the Act to

support such a construction.

I would therefore hold that the presumed oral application of 12th August 1911 does not save limitation.

It then becomes necessary to consider the second point regarding which the Subordinate Judge decided against the decree-holder on the

ground that the payment was not certified to the court, and, therefore, under Order XXI, Rule 2 of the Code of Civil Procedure, could not be

taken into account.

The payment is set forth in column 5 of Execution Petition No. 526 of 1914, which was presented within 3 years of the date of the alleged

payment. I see no reason why this should not be accepted as a certificate of payment under Clause (1) of the rule ; for nothing is prescribed in the

rule as to time within which or the manner in which the decree-holder must certify payment, (Vide Rajam Aiyar v. Anantharatnam Aiyar (1915) 29

M.L.J. 669 and Lakhi Narain v. Felamani Dasi (1913) 20 C.L.J. 131. No doubt a court will do well to carefully scrutinize evidence of a payment

reported in such circumstances, where the fact of payment is denied; but there is no reason why, if proved, such a payment should not be

considered in the light of Section 20 of the Indian Limitation Act.

I would therefore call for a finding on the following issue from the Court of the Subordinate Judge after taking evidence:

Is the alleged payment of Rs. 25 by the judgment-debtor on 17th August 1911 true?: and does it operate to save limitation u/s 20 of the Indian

Limitation Act?

Two months will be allowed for submitting the finding and seven days for filing objections.

Kumaraswami Sastri, J.

I agree and have little to add. I do not think that the mere oral repetition of a request contained in the execution application is a step in aid of

execution. Where however, several reliefs are prayed for in the execution application, which the court is not bound to grant concurrently, or, where

an application to the court is made, asking it to exercise its discretion in matters, where it is not bound to grant the prayer asked for in the execution

application as a matter of course, the fact that the relief asked for orally is already contained in the execution application, would not prevent the

oral application from being effective as a step-in-aid of execution. Order XXI, Rule XI of the Civil Procedure Code, 1908, after providing for an

oral application for execution at the time of the passing of the decree requires a written application containing the particulars specified in the order

and specifying the mode in which execution is sought. Rule 176 of the Civil Rules of Practice, 1905, only enables a party to apply orally for orders

which are necessary to give effect to or work out the prayers contained in the execution, application without the necessity for putting in an

application in writing for every small step necessary for realizing the fruits of a decree. When the Code requires a written application for execution,

it cannot be contended that a mere oral application would be a step-in-aid of execution, and where a written application is filed as required by the

Code, an oral application to the same effect is a mere superfluity.

In order that an oral application may be effective as a step-in-aid of execution the application must be one which it is necessary to make in

order to get the main reliefs prayed for in the execution petition. It must be of such a nature that, if the application were not made, further

proceedings in execution could not be taken either by reason of the specific prayer not being contained in the execution application, or by reason

of the Code or the rules of practice requiring some further acts to be done before the main reliefs prayed for in the execution application can be

granted or enforced.

As regards the payments acknowledged in the execution application the decision of this Court in Rajam Aiyar v. Anantharatnam Aiyar (1915)

29 M.L.J. 669 is clear, and I do not think that the payments can be ignored as not certified if they were as a matter of fact made. I agree with the

order proposed by my learned brother.

[In compliance with the above order, the Temporary Subordinate Judge of Tanjore submitted a finding in the negative, on the issue remitted.]

We accept the findings and as a result, set aside the order of the Subordinate Judge and direct that the petition be dismissed with costs

throughout.