Muhammad Hussain and Another vs Ganga Naicken alias Gangama Naicken and Others

Ganapatia Pillai, J.—This is an application for leave to appeal to the Supreme Court against the judgment and decree of this court in L. P. A.

No. 7 of 1958. That appeal, which was disposed of by Rajamannar, C. J., and one of us, was preferred against the judgment and decree of

Ramaswami, J., in A. A. A. O. No. 102 of 1957. which, in turn, was the appeal against the order of the District Court, Tiruchirapalli, in A. S. No.

354 of 1956 confirming the order of the court of tile Subordinate Judge, Tiruchirapalli in E. P. No. 64 of 1955 in O. S. No. 128 of 1945.

The question related to limitation. The decree directed delivery of possession of certain immovable property and payment of Rs. 135 for past

mesne profits and further directed ascertainment of future mesne profits from date of plaint under Order 20 Rule 12 C. P. C. E. P. No. 64 of 1955

was filed by the decree-holder, the applicant before us, for delivery of possession of the property. This execution petition was filed admittedly

more than three years after the date of the original decree and also the date of a prior E. P. which was dismissed on 24-2-1947 for non-payment

of batta. But, the decree-holder claimed that this execution petition was in time because, according to him, the three years period should be

calculated only with reference to the decree for mesne profits passed by the District Judge, Tiruchirapalli, on 10-3-1953 in pursuance of the

directions in the preliminary decree. This contention, if accepted, would have saved the execution petition from the bar of limitation, but all the

courts have negatived this contention and held that the decree for possession was capable of execution without reference to the decree for mesne

profits and consequently no fresh starting point for limitation purposes would be furnished by the decree passed for mesne profits in 1953.

Learned counsel for the applicant contends that though the judgment is one of affirmance and though the subject-matter of the dispute, viz., the

property, does not satisfy the test of valuation, a question of great public importance is involved in this appeal since there is considerable difference

of opinion between the various High Courts on this point which involves the interpretation of Article 182 of the First Schedule to the Limitation

Act. Clause 2 in the third column of that Article provides for a period of limitation for execution of a decree in cases where there has been an

appeal, Learned counsel pointed out that the decision of the Bench against which an appeal is sought to be preferred is in conflict with the Full

Bench decision of this court in Krishtnama Chariar v. Mangammal, ILR 26 Mad 91. The provision of the Limitation Act which came up for

consideration before the Full Bench was Clause 2 of Article 179, of the Second Schedule of the Limitation Act XVI of 1877. But the language of

that clause is identical with Clause 2 of Article 182 of the First Schedule of the present Limitation Act. That in a case, of a suit including two reliefs,

one for recovery of possession of immovable property and the other for recovery of mesne profits of that property, this decision of the Full Bench

would apply was held, in Kunjammal Vs. Krishna Chettiar by agent, Velayudham Pillai, . The argument that was addressed be, fore the Bench in

Kunjammal Vs. Krishna Chettiar by agent, Velayudham Pillai, , was that the rule laid down in the Full Bench would not. apply to cases where the

decree sought to be executed is against persons who were not parties to, the appeal. It was contended that the rule laid down by the Full Bench

should be limited to cases. where the parties against whom execution was, sought were parties to the appeal. In repelling, this argument the Bench

relied upon the Privy Council decision in AIR 1932 165 (Privy Council) , where their Lordships held that in construing clause 2 of Article 182 no

distinction could be made between appeals which comprised the wholes subject-matter of the suit and appeals which were preferred only against a

part of the subject-matter of the litigation. This decision was not brought to the notice of the Bench which heard the appeals with which we are

now concerned.

The Bench which decided the appeal against which leave to appeal is now sought referred to and followed the decision of the Calcutta High

Court in Satish Chandra Chakravarti Vs. Sarat Kamini Devi, . There a decree was, passed on 23-1-1922 for possession as well as for mesne

profits. The lower appellate Court remanded the case to the trial court for ascertain-ment of mesne profits. Against that decree the defendant

appealed to the High Court. That appeal was dismissed on 17-7-1923. Subsequently, as a, result of an enquiry held under Order 20 Rule 12 C.

P. C. a decree for mesne profits was passed on, 30-4-1926. On 24-3-1927 the decree holder applied for execution of the decree both for

delivery of possession as also for recovery of mesne profits. The courts below held that time should run from the date of the final disposal of the

case, viz., from the date when mesne profits were assessed in April 1926. The judgment-debtor contended that, limitation for execution of the

decree for possession. ran from 17-7-1923, when the appeal to the High Court was dismissed. The learned Judges of the Calcutta High Court

accepted the contention of the judgment-debtor on the principle that the decree in question was partly preliminary and partly final and that the final

part of the decree could be executed apart from the preliminary part, and, if the final part falls within the provision of Article 182, time for

execution of the final part runs from the date of the final decree of the appellate court. This view, we may notice, is opposed to the Full Bench

decision of the Calcutta High Court in Gopalchunder Manna v. Gosain Das Kalay, ILR 25 Cal 594. The Full Bench decision in ILR 26 Mad 91

upheld the decision in Viraraghava Ayyangar v. Ponnammal, ILR 23 Mad 60 and overruled Muthu v. Chellappa, ILR 12 Mad 479. The view

taken in ILR 23 Mad 60 is in confirmity, with the decision of the Bombay High Court in Sakhalchand Rikhawdas v. Velchand Gujar, ILR 18 Bom

203 and Abdul Rahman v. Maidin Saiba, ILR 22 Bom 500 but, is not in accordance with the view of the majority of the Full Bench in the

Allahabad case of Mashiat-un-nissa v. Rani, 13 All 1, though it agrees with the minority view in that Full Bench.

The Full Bench decision in Sivaramachari Vs. Bayya Anjaneya Chetty, Kanniammal Vs. Balakrishna Tharvady and Others, followed the view of

the Privy Council in AIR 1932 165 (Privy Council) .

In Bhawanipore Banking Corporation, Ltd. Vs. Gouri Shankar Sharma, , the question for consideration was whether the expression ""an appeal

from the decree occurring in Article 182 (2) covered an appeal from an order passed in a collateral proceeding based upon Section 36 of the

Bengal Money-lenders Act. In answering the question in the negative the Supreme Court ruled that however broadly, the expression ""appeal from

the decree"" occurring in Article 182 (2) might be construed it could not be held to cover an appeal from an order which was passed in a collateral

proceeding, or which has no direct or immediate connection with the decree under execution. This ruling is not therefore a direct authority on the

question arising for consideration now.

The Privy Council in AIR 1932 165 (Privy Council) referred to all the conflicting decisions on the point and preferred the minority view of the

Full Bench of the Allahabad High Court in ILR 13 All 1.

Our only excuse for referring to all the decided cases on tne point is to examine the contention put forward by counsel that the law on this point

is not well-settled and requires an authoritative pronouncement by the Supreme Court. For a case to fall under Article 133(1)(c), as we understand

the position the following requirements are necessary. The question of law involved must be one of great public importance. By this we mean the

question must be capable of arising frequently in courts and must involve many parties in litigation. The second test would be that the question

involved affects the rights of parties: sub-stantially in the sense that apart from mere details regarding procedure in trials substantial property rights

or other personal rights of citizens are involved. In our opinion, both these tests are satisfied in this case. A question of limitation arising in

execution, in our view, should not be viewed merely as a matter of procedure in execution of decrees because it involves a decision as to extinction

of property rights of decree-holders. But, merely because the question involved is held to be a question of great public importance a litigant is not

entitled as of right to a certificate under Article 133(1)(c) of the Constitution unless he further satisfies this court that the"" case is a fit one for appeal

to the Supreme Court. Underlying that concept of fitness is the state of law on the particular subject. A litigant is entitled to a certificate if, for

example, he is able to satisfy us that the law on the subject is not well-settled or that there are differing views in the various High Courts which need

reconciliation by a pronouncement by the Supreme Court. In our opinion, neither test is satisfied in this case. So far as bur court is concerned, it

could not be said, having regard to the Full Bench decision in ILR 26 Mad 91 which was followed consistently in numerous decisions, the last of

which is Kunjammal Vs. Krishna Chettiar by agent, Velayudham Pillai, , that the law is not well settled. Except the Allahabad High Court every

other High Court has taken the same view. Even the view of the majority of the Full Bench in ILR 13 All 1 has been overruled by the Privy Council

in AIR 1932 165 (Privy Council) Indeed the Privy Council referred to all the conflicting views on this subject in their opinion and preferred the

minority view of the Allahabad Full Bench which is in accord with the Madras view and the views of the Bombay and Calcutta High Courts. There

is therefore really no room for any conflict of views after the decision of the Privy Council in AIR 1932 165 (Privy Council) In this view, we refuse

the certificate asked for. No costs.