Mathai Ouseph vs Mathen Thomas

Varadaraja Iyengar, J.—In this second appeal by (he 3rd. Defendant the only question raised is as to whether the decree is barred by limitation u/s 48. of the Code of Civil Procedure. The decree in the case was passed on 30-6-1106 corresponding to 13-6-1931. The last execution petition with which we arc concerned was filed on 28-1-1128 corresponding to 8-9-1932 obviously more than 12 years from the date of the decree. Both the courts below held that the period of pendency viz., between 7-7-1116 to 25-2-1950, of a Debt Relief Petition filed by the judgment-debtors could be executed, in favour of the decree-holder. The Munsiff was of the view that the execution petition being filed within 3 years of the order of 25-2-1950 passed in connection with the Debt Relief matter must be deemed to be in time.

This was obviously wrong. So the learned District Judge, took into consideration certain further periods which could be excluded in favour of the decree-holder i.e., firstly a period of two months provided under the decree for its execution and secondly a six months'' period granted under the Judgment-debtors Temporary Relief Proclamation dated 1st Meenom 1110 and 30th Moenom 1110. The learned Judge found that taking into consideration all the three periods which aggregated to 9 years 8 months and 7 days the execution petition was well within time.

Learned Counsel for the Appellant urged that the period of pendency of the Debt Relief Petition should on no account be excluded because according to him the computation of the period fixed u/s 48 Code of Civil Procedure, could not be governed by the general provisions of the Limitation Act. Now whatever might be the conflict of views in other jurisdictions in this matter see Chitaley, Limitation, 3rd edition, volume I, pages 947-949 -'' a Division Bench of this Court (Subramonia Iyer and Vithyathil JJ.), has held in Velayudhaperumal v. Palvasamuthu AIR 1952 Ker 500 (A), that the provisions contained in Section 41, Code of Civil Procedure, (Travancore) corresponding to Section 48 Indian Code of Civil Procedure, may be regarded as a period of limitation prescribed by a special law for the purpose of Section 29, Sub-Section 2(a) of the Limitation Act. In that case the learned Judges, were dealing with the exclusion of the period of pendency of an application by a judgment-debtor under the Travancore Agriculturists Relief Act III of 1112 for a certificate from the Debt Conciliation Board.

The proviso to Section 10 of the Debt Relief Act implies an automatic stay of execution (within the meaning of Section 15 of the Limitation Act,) when the provisions of Sections 8 and 9 of tire Act for payment-in instalments are invoked by a judgment-debtor. There is no reason why the principle of the decision in AIR 1952 Ker 500 (A) should not be held applicable to cases governed by Section 10 of tire Debt Relief Act as well.

Mr. Sivasankara Panicker, learned Counsel for the Appellant referred to Sankaran - Raghavan v. Kesavan 1951 Ker LT 624 : AIR 1953 Ker 539) (13), but that was a case where an application under Sections 8, 9 and 15 of the Debt Relief Act filed by the judgment-debtor was relied on as an acknowledgment of the decree so as to extend the time limit u/s 41 Code of Civil Procedure, (Travancore) and it was held that such acknowledgment will not have the effect of extending the 12 years'' limit under that section. It is not argued that if the period of pendency of the Debt Relief Petition would be excluded then all the period between 7-7-1116 and 25-2-1950 stood to be deducted. It follows therefore that the courts below were right in holding that the decree-holder could have the benefit of the exclusion of the aforesaid reread.

Learned Counsel for the Appellant then said'' that the judgment-debtors Temporary Proclamations of 1110 did not apply to tire instant decree and he depended upon the proviso in Section 2 which said that,

nothing in the Proclamation shall apply to any, decree which was passed not less than six years before the date of the proclamation

but this argument is based upon an obvious misunderstanding and has no substance.

No other point arises. The second appeal therefore fails and is dismissed with costs.