M.P.P.S.T. Palaniappa Chettiar and Others vs Valliammai Achi

Murray Coutts Trotter, Kt., C.J.—Before dealing with the questions of law raised in this appeal it is necessary to set out briefly the facts

which raise them. They are all matter of record and are not disputed. One Jayanna Rao Daga brought a suit, C.S. No. 98 of 1911 on the Original

Side of this Court against a family of Nattukottai Chetties who may be described for the present purposes as M.P.P.S.T. which is their vilasam.

On the 7th of January, 1912, he obtained a decree for Rs. 8,957; he took no steps to execute it, but on the 8th of May, 1913, he assigned his

decree to one R.M.M. Subramaniam Chetti for a sum of Rs. 3,800. R.M.M. discovered that neither the judgment-debtors nor any of their

property was to be found in Madras. So on the 17th of October, 1916, he applied to have the execution proceedings under the decree transferred

to the District Court of Ramnad on the ground that the judgment-debtors resided within the jurisdiction of that Court and had Immovable

properties situate there, and on the 8th of March, 1917, an order was made recognising him as transferee decree-holder and transmitting the

decree for execution to the Ramnad Court. No execution was effected in the Ramnad District and the papers were returned to the Original Side of

the Madras High Court. Meanwhile a side issue arose. One S. N. Subramaniam Chetti came forward and alleged that he was the principal behind

R. M. M. Subramaniam Chetti, the decree-holder who was only his benamidar, and he issued an execution petition which was filed on the 17th of

January, 1924, and on the very same day R. M. M. himself filed an execution petition as decree-holder. Kumaraswami Sastriar, J., passed an

order on the 2nd of April, 1924, accepting S. N. Subramaniam Chetti as the true owner of the decree and allowed him to proceed in execution.

That decision was brought up in appeal and was reversed by myself and Srinivasa Aiyangar, J., who held that where a transfer is evidenced by an

instrument in writing in favour of a named person no one can come forward and allege that that person is a benamidar for himself [Palaniappa

Chettiar v. Subramania Chettiar ILR (1924) M. 553 : 48 M.L.J. 419.] There therefore remained pending the rival application of R. M. M. for

execution; but before anything was done R. M. M. died, and his widow Valliammal applied to be brought on the record as his legal representative

and to be allowed to continue the execution. The Judge of first instance, Srinivasa Aiyangar, J., allowed that to be done but on appeal that decision

was reversed by myself and Curgenven, J., a decision reported in Palaniappa Chettiar v. Valliammai Achi ILR (1926) M. 1 Shortly afterwards

Valliammal on the 3rd of December, 1926, made a fresh application for Execution of the old decree in her own right. On the face of it, it was

clearly barred by limitation, but Waller, J., held that the order of the Deputy Registrar, dated 8th of March, 1917, for transmission for execution of

the decree to Madura operated as a revivor within the meaning of Article 183 of the Limitation Act. It is from that order of Waller, J., that this

appeal is brought.

The elaborate and learned argument before us has really centred on two points. The first is that the order of the Deputy Registrar transferring the

decree for execution to another Court in March, 1917, gave a new starting point of limitation qua order of transmission. That contention is

unsustainable after the decision of the Privy Council in (1927) L.R. 54 I.A. 129 (Privy Council) The second is that the order transmitting the

decree for execution to Ramnad also substituted R. M. M. as the person entitled to execute the decree; that this was a judicial, act and gave a new

starting point for limitation.

I will deal first with certain rules of Order 21, which deals with matters arising in execution. The governing rule is Order 21, Rule 16 in which the

material words are as follows:

Where a decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court

which passed it and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such

decree-holder.

There is added the following proviso:

Provided that, where the decree has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-

debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution.

On the one hand it is contended that the order of the Deputy Registrar is a mere order of transmission, a ministerial act and involved no

determination of a judicial character as to the validity of the alleged transferee to stand in the shoes of the original judgment-creditor, which is said

to be a matter outside his jurisdiction even if he had purported to exercise it in that direction. All he had to do, it was argued, was to satisfy himself

that the person who represented himself to be a transferee was able to produce documents which purported to disclose that character but that it

was left at large in the transmitted execution proceedings for the judgment-debtors to contend that the alleged transferee in fact fulfilled no such

character. In that view the order would be a ministerial and not a judicial act and would not give rise to a fresh period of limitation. It is certainly a

startling result if a Deputy Registrar by this order can alter the whole law of limitation applicable in these matters. He was at liberty to refer the

matter to a Judge which he would doubtless have done had he thought himself clothed with the power to pass a judicial as distinct from a

ministerial order allowing the alleged transferee decree-holder to go on with the execution in the Ramnad Court. It is argued that his order amounts

to no more than this:

You allege yourself to be the transferee decree-holder and ask for an order of transmission to the Ramnad Court. That I do as a ministerial act and

that is the effect of my order. The question as to whether you are in truth and in fact the transferee of the decree is one which must be decided by

the Court in which execution must be sought and to which I have transferred the decree. You take the order at your own risk, the risk, namely of it

being proved in the Ramnad Court that you cannot establish your claim there to be considered the true transferee decree-holder.

Much wider ground has been covered in the argument, and the industry of counsel has put before us all the learning of the English reports as to

bills of revivor and writs of scire. facias. I enter on such an enquiry with reluctance, but I do not see how I can escape it. The respondent''s case is

put thus : that wherever there is a change of parties under an order of Court there is a revivor, and consequently a new starting point of limitation.

That is said to be the necessary result of the use of the word ''revived'' in Article 183 of the Limitation Act, because it throws us back on the

English and Irish cases relating to bills of revivor and writs of scire facias. I have always regarded the Indian Limitation Act as the worst drafted

piece of legislation which it has been from time to time my misfortune to be compelled to construe. But I think that the climax is reached in Article

183 with its use of the word ""revived,"" which could easily have been defined but was not. Of two things one : either the draftsman had acquainted

himself with the English case-law on the subject or he had not. If he had not, he neglected a plain duty cast upon him by his own action in using a

term of art like ""revived"" without attempting either to enquire into its history or to formulate his own definition of it; if he had, he must have known

that the use of the term was a throwing of an apple of discord into the arena, which would set Indian counsels and Indian Judge''s to grope among

the English authorities in the quest of a guiding principle. The pursuit has undoubted intellectual attractions akin to those which sustain a classical

scholar in the task of collating manuscripts in the endeavour to produce an authoritative text of the ancient writer he has elected to edit. I see

indications in the reported Indian cases that such an enquiry has presented those attractions to various Judges. For myself, I confess it has none. I

have neither the knowledge nor the leisure in an already overworked Court to hope to master the subject sufficiently to throw any new light upon it.

The Bar has given us the greatest assistance, delved into the English cases with diligence and put them all before us. I therefore feel it incumbent

upon me to follow the example of other Indian Courts and briefly review the English case-law on the subject. I shall he brief for two reasons. If this

case stops here--which I do not suppose it will--I do not wish to embarrass my successors by an extended discussion which would almost

inevitably contain obiter dicta which it would probably be their duty in later cases to reject or explain away. If the case goes to the Privy Council, I

am not foolish enough to suppose that an elaborate disquisition from me would give the Board any real assistance in a subject-matter which must

be far more familiar to its members than to any Indian Court.

The first book cited to us was Tidd''s Practice of which the 7th Edition is dated 1821 in which the following passage occurs:

The scire facias upon a change of parties is governed by the rule laid down in the case of Penoyer v. Brace (1697) 1 Ld. Raym. 244, but where a

new person is to be benefited or charged by the execution of the judgment there ought to be a scire facias to make him a party to the judgment.

In Wbarton''s Law Lexicon, 12th Edition (1916) an elaborate account is given of the writ of scire facias with a significant note that ""the writ

though not abolished is now almost out of use."" The equitable remedy of filing a bill of reviver is fully dealt with in Vol. XIII of the Encyclopaedia of

the Laws of England, 2nd Edition, page 1. There arose a series of cases in the Irish and English Courts which discussed the effect of the taking out

of a writ of scire facias in which the point argued was whether a writ of scire facias merely continued an old cause of action as it stood at the time

of the writ or whether it created a new right. The cases I refer to are Farrell v. Gleeson (1844) 11 Clause and Fin. 702, Farran v. Beresford

(1843) 10 Clause and Fin. 319 Ottiwell v. Farran (1839) 2 Ir. L. Rep. 110 and finally before an imposing bench of the Privy Council in In re

Blake (1853) 2 Ir. Ch. Rep. 643.

I will take it that those decisions establish that a judicial determination following on the taking out of a writ of scire facias which gave the right to

the new person on the record to continue execution under the old decree gave a new starting point of limitation. I fail to see the justice of holding

that a statute-barred decree can be given a new life by the operation of an antiquated writ; but it is not for me to question the decisions of the

House of Lords and the Privy Council. No later English or Irish case has been referred to in the argument before us and the matter stood thus

when Article 183 of the Limitation Act compelled the Indian Courts to come to some conclusion on the matter. All these cases have been cited

before us. There are three decisions of the Calcutta High Court and several of the Madras High Court with which 1 will deal shortly. The decision

in Ashootosh Dutt v. Doorya Churn Chatterjee ILR (1880) C. 504 expressly bases itself on the English Common Law rule relating to the scire

facias, namely, that a judgment on a writ of scire facias does not merely extend the original remedies but creates new ones; and that decision was

followed in Futteh Narain Chowdhury v. Chandrabati Chowdhrain ILR (1892) C 551 and in effect in Jogendra Chandra Roy v. Shyam Das ILR

(1909) C. 543,a very learned judgment in which the English case-law is exhaustively reviewed. The Madras Court proceeded on the same lines,

Ganapathi v. Balasundara (1884) ILR 7 M. 540. The trend of the later Madras cases is in the same direction, vis., to hold that to bring a transferee

decree-holder on to the record is not merely a recognition of his character as transferee decree-holder but is a step in execution which will save

limitation. I will enumerate the cases without discussing them in detail. They are Ramachandra Aiyar v. Subramania Chettiar (1903) 14 M.L.J. 393

and Bolla Brahmadu v. Ruddaraju Venkataraju 33 Ind.Cas. 71. In Chutterput Singh v. Sait Sumari Mull ILR (1916) C. 903 the decision was

obviously adverse to the present respondent''s first contention.

The point therefore seems to narrow itself to this : Was the order of the Deputy Registrar of the 8th of March, 1917, a ministerial order or was

it a judicial determination in so far as it not merely transmitted the case for execution to Ramnad but purported to recognize the position of the

alleged transferee decree-holder? In the CPC by Order 21, Rule 16, proviso, it is enacted that notice of an application for execution by a

transferee decree-holder shall be given to the transferor and the judgment-debtor and the decree shall not be executed until the Court has heard

their objections, if any, to its execution. It appears on the face of the order of the Deputy '' Registrar that such notices had been given. The actual

words are these:

The defendants herein not appearing in person or by pleader though served with the said revival notices as appears by the affidavit of Doraikannu

Mudaliar.

and the Deputy Registrar purported to affix to his order the statement that it was ""by the Court"" speaking through him. In view of that I should find

it very difficult to hold, even if I had no further guidance on the matter, that that was other than a judicial act. Those affected had the right and the

opportunity to be heard and they did not choose to avail themselves of it. But I think that the matter is concluded for me not merely by the words

of Order 21, Rule 16 but by the pronouncement of the Privy Council in AIR 1921 23 (Privy Council) which appears to me to be a direct authority

for the proposition that when a Court has recognised the assignment of a decree and passed an order allowing the assignee to execute it, that gives

a fresh starting point of limitation and that it is not open to the judgment-debtor to contend that it did not act as a revivor. The Allahabad Court had

consistently taken the same view : see Dwarka Das v. Muhammad Ashfaqullah ILR (1924) A. 86. I may point out that the decision of the Privy

Council in Banku Behari Chatterji v. Naraindas Dutt (1923) L.R. 54 IndAp 129 : ILR 54 C. 500 : 1923 52 M.L.J. 565 proceeded on the express

ground that an order of transmission was not a judicial act, because it could be passed ex parte and that the matter was not affected by the fact

that actually notices to the parties concerned had been given, because their Lordships held that they need not have been given and should not have

been given; and that therefore the order of transmission remained what it was always meant to be under the Code a ministerial order. Under Order

21, Rule 16 notices not only may but must be given.

In the result, I feel myself compelled to hold that the Deputy Registrar''s order of the 8th March, 1917, did give a fresh starting point of

limitation. The result is one which I confess I greatly regret. These orders are passed without any realization of the far-reaching effects and

implications they may have. In this case an original decree debt of Rs. 8,957 has been converted in the intervening years by accumulation of

interest to a sum of Rs. 17,626 up to November, 1926, and at this date is nearly Rs. 20,000 and those who are to be the recipients of this large

sum of money have obviously slept on their remedies for many years. I feel myself unable to find a way out. If this case goes to a higher tribunal I

trust it will be able to discover that which escaped me. The appeal is dismissed with costs.

Pakenham Walsh, J.

I concur with the conclusions of my Lord the Chief Justice with whom I have discussed the matter fully and have nothing to add.