Padmanabhan Mathevan vs Ramaswami Pillai Mathevan Pillai

Varadaraja Iyengar, J.—The matter arises in execution of the decree, on objection raised by the respondent -- 5th defendant, that the

execution of the decree is barred by limitation, as regards personal execution for realisation of the mesne profits, granted under the decree. The

court below upheld the objection and hence this appeal by the assignee-decree-holder.

The decree set aside a mortgage which stood in favour of the 5th defendant in respect of plaint Item No. 3 and allowed recovery of the same,

with past and future mesne profits. The decree was passed on 4-3-1121. On 18-10-1123, the first execution application was filed, praying inter

alia for recovery of the mesne profits but only ''as a charge against the properties''. The prayer for personal execution against the 5th defendant was

for the first time made in the second execution petition dated 22-6-1953, but as by then, more than three years had elapsed from the date of the

decree the court below held such prayer was barred by limitation under Article 182. The assumption, apparently, was that the portion of the

decree which granted mesne profits amounted to a separate decree by itself and limitation therefore in execution must be computed on its own

basis apart from the rest. This was precisely the argument which was sought to be advanced in Maduri Lakshminarasimham Vs. Maduri

Suryanarayana and Others, and Govindarajachari, J. with whom Gentle C. J. agreed, held rejecting the contention:

There was only one decree within the meaning of Article 182 notwithstanding that it included several reliefs based upon distinct causes of action

and that it was open to the decree-holder to rely on Clause (5) and ask for limitation to be calculated from the dates of the final orders in the

previous execution petitions notwithstanding that those petitions sought execution of reliefs other than that sought in the subsequent one.

Learned Judges referred to and relied upon the earlier decision in Kanniammal Vs. Balakrishna Tharvady and Others, where the discussion

principally turned on Article 182 (2) of the Limitation Act, and the following observations were made:

all cases, what Article 182(2) of the Limitation Act refers to is a decree, viz., one decree, and it is not permissible for Courts in execution to look

into the matter and say that, as there are several reliefs'' which are severable, the decree, although normally one decree consists of several

decrees"".

Our attention has been drawn to Krishna Kammathy v. Kunjan AIR 1951 Trav-Co 184 where aft execution application for attachment and sale or

certain properties and filed after four years of a previous application directed against another set of properties, was held to be a fresh application

and this was held to be barred. The facts of that case are not clear from the report and there is also no discussion and it is probable that the court

was then faced with the 12 years'' rule also u/s 41 of the Travan-core CPC corresponding to Section 48 of the Indian Civil Procedure Code. For,

there could be no question of a fresh application if the previous one was still pending ana 12 years had not elapsed from date of the decree.

Anyhow that aspect does not arise here. It would follow therefore that the conclusion of the court below that execution was barred is on the basis

it adopted, unsustainable.

Learned counsel for the respondent then said that execution must be held to be still barred in this case, because the second execution application

was filed more than three years after, though within six years of the disposal of the first. The argument is that even though the decree related to

immovable property and a memorandum thereof was entered or filed as required by Section 15 of the Travan-core Registration Act II of 1087 so

as to attract the larger period of limitation of six years under Article 166 of the Travancore Limitation Act (VI of 1100) the smaller period of three

years alone is now available under the different wording of Article 182 of the repealing Indian Limitation Act. The relevant portions of the two

Articles are as follows :

Art. 166. Description of Period of limitation.

application

For the execution of a decree or Three years; or, where a certified

order of any Civil Court not copy of the decree or order has

provided for by Section 41 of the been registered, or a

Code of Civil Procedure. memorandum of the decree or

order relating to Immovable

property is entered or filed as

required by S. 15 of Regulation II

of 1087, six years.

Art. 182 For the execution of a Three years; or, where a certified

decree or order of any Civil copy of the decree or order has

Court not provided for by Article been registered, six years.

183 or by S. 48 of the Code of

Civil Procedure, 1908.

The Limitation Act of Travancore thus allowed the larger period in the two cases (i) of registration of a certified copy of the decree and (ii) the

entering or filing of a memorandum thereof, while the Indian Act limited that concession to the first case alone.

Now the Part B States Laws Act III of 1951, which made the Indian Limitation Act and the Indian Registration Act applicable to the State, said

: Section 6.

If immediately before the appointed day, there is in force in any Part B State any law corresponding to any of the Acts or Ordinances now

extended to that State that law shall, save as otherwise expressly provided in the Act, stand repealed;

Provided that the repeal shall not affect:-- (a) The previous operation of any law so repealed or anything duly done or suffered thereunder, or

(b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or

(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed, or

(d) any investigation, legal proceeding or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture or, punishment

may be imposed as if this Act had not been passed :

Provided further that, subject to the preceding proviso, anything done or any action taken (including any appointment or delegation made,

notification, order, instruction or direction issued, rule, regulation, form, bye-law or scheme framed, certificate obtained, patent, permit or license

granted or registration effected under any such law shall be deemed to have been done or taken under the corresponding provision of the Act or

Ordinance as now extended to that State, and shall continue to be in force accordingly unless and until superseded by anything done or any action

taken under the said Act or Ordinance.

The first proviso is in negative terms and appears to have been taken from Section 6 of the General Clauses Act X of 1897 while the second

Proviso adopts a ""deeming"" provision quite contrary to what is contemplated under that section. Under the General Clauses Act the position in

respect of matters covered by it would have to be determined as if the repealing Act had not been passed while u/s B of the Part B States Laws

Act, the position-so far as the positive portion is concerned-- has to be judged as if the repealing Act were in force at the earlier relevant date. The

provision here will therefore have to be taken lo be self-contained and indicative of the intention to exclude the application of Section 6 of the

General Clauses Act. See Indira Sohanlal Vs. Custodian of Evacuee Property, Delhi and Others,

But this rule of construction does not materially affect the case of the appellant herein. For, under the second Proviso of Section 6 of the Central

Act III of 1951, registration of the decree effected by the entering or filing of the memorandum of the decree under the repealed Travancore Law

shall be deemed to be done under the corresponding Indian Registration Act, that is, by the only process available under it, viz., that of registration

of the certified copy of the decree. If so, the decree will answer the requirement of Article 182 of the Indian Limitation Act for purpose of the

larger period of six years.

Where the contention of the learned counsel errs, is in assuming that the ''deeming'' provision must apply only to the particular process which had

been adopted for the registration of the decree under the repealed law. And so, the argument proceeded, in the absence of such process under the

Indian Registration Act, there was no registered certified copy within the scope of Article 182. Indeed the conclusion we have arrived at as above

has been already reached in the Bench ruling in -Joseph v. Jesayya 1955 Ker LT 602: AIR 1955 SC 186 (E), though with the aid of Section 6 of

the General Clauses Act as well. But as we said that distinction was immaterial. The further aspect stressed by learned counsel, thus also fails.

In the result the appeal succeeds and the application for execution filed by the appellant is held to be in time. The court below will take it back

on the file, and dispose of it in the light of the vest of the objections raised by the judgment-debtor. The appellant will get his costs of this court

from the respondent.