Nacharammal and Others vs Veerappa Chettiar

Kuppuswami Ayyar, J.—This appeal arises out of proceedings in execution and the question for consideration is as to whether the execution

petition out of which the appeal arises is barred by limitation. The decree in the suit was passed on the 1st December, 1922. It directed delivery of

certain properties on payment of a certain amount. The original decree directed that Rs. 17,644-12-0 should be deposited. There was an appeal

and the appellate Court on 28th September, 1926, modified the decree of the first Court and reduced the amount to be deposited to Rs. 6,113-8-

It was taken to this Court in second appeal which was dismissed on the 21st November, 1930. The first execution petition, E.P. No. 169 of

1933, was filed on the 21st November, 1933. After enquiry as regards the amount that had to be deposited an order was passed on the 23rd

March, 1934, directing the decree-holder to deposit into Court Rs. 6,960-0-2 by a particular date fixed by the Court. As the amount was not

deposited, the petition was dismissed on the 9th April, 1934. The matter was taken to the Madura District Court in appeal which appeal was

dismissed on the 7th March, 1936. A civil miscellaneous second appeal was filed in this Court, No. 127 of 1936, which was dismissed on the 17th

August, 1939. This petition, E.P. No. 105 of 1942, out of which this appeal arises, was filed on the 13th August, 1942.

Three objections on the ground of limitation were raised, one of which was that the application E.P. No. 169 of 1933, filed on the 21st

November, 1933, was not a proper application in accordance with law, as the amount directed to be paid before the decree-holder could obtain

delivery of possession was not deposited with the application. The second objection raised was that the present application, E.P. No. 105 of

1942, was filed more than three years after the date of the final order on E.P. No. 169 of 1933. It was contended, however, that the final order

would be the order in C.M. S.A. No. 127 of 1936 which was passed by this Court on the 17th August, 1939. The third objection raised was that

as this application was filed on the 13th August, 1942, more than twelve years after the date of the lower appellate decree it was barred by

limitation u/s 48 of the Code of Civil Procedure. With regard to the first objection it has been held by a Bench of this Court that even though the

amount which has to be deposited before delivery could be given was not deposited with the application, it would still be a proper application if it

otherwise fulfils the requirements of the Code of Civil Procedure--Vide Alagiriswami Naidu v. Venkatachalapathi Iyer (1907) 17 M.L.J. 566 : ILR

31 Mad. 77.

With regard to the second point, there is a decision of a Bench of this Court in Abdul Razak v. Abubakkar Ambalam L.P.A. No. 67 of 1939

which has held that the starting point of limitation is the date of the final order of the "" final Court of Appeal.

The appeal was argued mainly on the objection based u/s 48 of the Code of Civil Procedure. That section runs thus:

Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree

shall be made upon any fresh application presented after the expiration of twelve years from (a) the date of the decree sought to be executed * * *

* *

In the corresponding section in the old Code of 1882 there were the words ""or of the decree in appeal if any affirming the same "" indicating thereby

that if there is anyappeal against any decree and the appeal was dismissed by affirming the decree appealed against, the twelve years started from

the date of the appellate decree. Because there was this specific provision in the Code of 1882 about the starting point of limitation in cases where

a decree has been affirmed on appeal and that provision is not found in the Code of 1908, it is urged that in such cases the starting point is not the

date of the order in the appeal affirming the original decree but the date of the original decree itself. The question came up for decision before this

Court on two occasions. In Narasaya Hegade Vs. Vitlaprabhu and Others, , Phillips, J., held that the starting point was the date of the order in

appeal. I had occasion to consider it in Pathumkara Ammad v. Veliya Palara Kunhamed Kuti C.M.S.A. No. 159 of 1943. Following the

observations of a Bench of this Court in K. Nagalinga Chetty Vs. O.K. Srinivasa Aiyangar and Another, , I held that the starting point of limitation

would be the date of the decree of the first Court. My attention was not then drawn to the observations of the Privy Council and of other benches

of this Court as regards what was '' the decree sought to be executed '' in such cases. u/s 48 of the CPC the period of twelve years commences

from "" the date of the decree sought to be executed."" It does not state whether the decree sought to be executed in such cases is the original

decree or the appellate decree. It is urged for the respondent that the decree sought to be executed in such cases is the decree of the appellate

Court confirming the original decree and not the decree of the lower Court, and as this petition has been filed within twelve years from the date of

the former decree it is in time. In K. Nagalinga Chetty Vs. O.K. Srinivasa Aiyangar and Another, , the decree sought to be executed was one

passed in a small cause suit. There was a new trial application and when it failed, a revision petition was filed in this Court, and it was contended

that the starting point of limitation u/s 48 was the date of the dismissal of the civil revision petition. On the observations of the Privy Council in

Nagendranath De v. Sureschandra De (1932) 63 M.L.J. 329 : L.R. 59 IndAp 283 : ILR 60 Cal 1 , that as there was no definition of appeal in the

CPC any application by a party to an appellate Court asking it to set aside or revise a decision of a subordinate Court would be an appeal within

the meaning of that word, it was contended that the starting point of limitation u/s 48 of the CPC would be the date of the disposal of the revision

petition. But that was not accepted, Burn, J., observing,

There is no analogy between Article 182 of the Limitation Act and sectoin 48 of the Code of Civil Procedure, because Article 182 expressly states

that all applications that fall u/s 48 of the CPC are excluded from its operation.

when reliance was sought to be placed on the analogy of Article 182 under which the starting point of limitation is the date of the appellate order. It

does not appear from the judgment of the Bench in that case that there was any argument advanced as to what was meant by the words ""the

decree sought to be executed,"" found in Section 48 of the Code of Civil Procedure. In a later case, P.V.R.R.V.R. Veerappa Chettiar and Another

Vs. V. AR. V. VR. Sivagami Achi, , another Bench of this Court had to consider the question as to whether an application u/s 19 of the Madras

Agriculturists'' Relief Act should be made to the first Court or to the appellate Court when there was a decree by the first Court which was

affirmed on appeal by the appellate Court. It was argued that though such a petition would have to be filed in the appellate Court where the decree

passed in the first instance was modified or reversed by the appellate Court, in cases where the appellate decree merely confirmed the original

decree, the decree of the original Court was the only decree to be executed and it was the decree of the original Court that would be left standing

and the only decree to be executed. Venkataramana Rao, J., in his judgment pointed out that this Court has throughout followed the view taken by

Sir John Edge in Mohamed Sulairnan Khan v. Mohamed Tarkhan I.L.R.(1888)All. 267 that the effect of Section 579 of the Code of 1882

(corresponding to Order 41, Rule 35 of the Civil Procedure Code, 1908) was to cause the decree of the appellate Court to supersede the decree

of the Court below even when the decree of the appellate Court was one which merely affirmed that decree below and did not even reverse or

modify it and that the only decree that could be amended was the decree to be executed and the decree to be executed was the decree of the

appellate Court and not the decree of the Court below. He referred to two Bench decisions of this Court in Manavikraman v. Unniappan (1891) 2

M.L.J. 23 : ILR 15 Mad. 170 and Pichuvqyyangar v. Seshayyangar (1894) 5 M..L.J. 39 : ILR 18 Mad. 314 . It was also pointed out by him that

that view was later approved by the Privy Council in Brij Narain v. Tejbal Bikaram Bahadur (1910) 20 M.L.J. 587 : L.R. 37 IndAp 70 : ILR 32

All. 295 and that Bhashyam Ayyangar, J., in Krishnamachariar v. Mangammal I.L.R.(1902)Mad. 91 had observed that when an appeal is

preferred from a decree of a Court of first instance, the suit is continued in the Court of appeal and reheard either in whole or in part, according as

the whole suit is litigated again in the Court of appeal or only a part of it and that the final decree in the appeal will thus be the final decree in the

suit, whether that be one confirming, varying or reversing the decree of the Court of first instance. And finally Venkataramana Rao, J., observes:

The contention that the decree of the original Court when it is confirmed in appeal is still the decree to be executed is thus opposed to principle.

Since both the Privy Council as well as the several Benches of this Court have understood the words "" the decree that is sought to be executed

in cases where there is an appeal which confirmed the original decree as referring to the decree of the appellate Court, I have to revise my opinion

and hold that the decree sought to be executed in this case is the decree of the appellate Court even though it confirmed the original decree of the

first Court, and as this petition is within twelve years from the date of the appellate decree, it is not barred by limitation.

In the result the appeal fails and is dismissed with costs.

Leave granted.