Srinivasan, Minor By Guardian and Mother Krishnaveni Ammal alias Venu Ammal vs Kumarappa Chettiar and Another

Jagadisan, J.—The above Civil Miscellaneous Second Appeal arises out of proceedings in execution and involves for determination an

interesting question of limitation.

One Ramanathan Chettiar filed a suit Original Suit No. 64 of 1937, on the file of the Chief Court, Pudukkottai, impleading one Venkatrama

Rowth as the first Defendant and Ramaswami Rowth as the second Defendant, and sought to recover a sum of money. A money decree was

passed against the first Defendant alone on 28th October 1939, by the trial Court with a charge on a half share of the plaint A and B schedule

properties, but the second Defendant was exonerated. The Plaintiff preferred an appeal seeking to have a decree against the second Defendant

also but that was dismissed by the appellate Court on 19th January 1943.

The Plaintiff decree-holder filed the first execution on 6th February 1943, but that was dismissed on 9th December 1945. The next execution

petition was Execution Petition No. 568 of 1945, which was presented on 21st October 1945, in the Chief Court of Pudukkottai. During the

pendency of the said execution petition the territory of Pudukkottai became integrated with the Madras State and the execution petition pending on

the file of the Chief Court, Pudukkottai, was transferred to the District Munsif''s Court of Pudukkottai. On 9th March 1950 that execution petition

was dismissed. The next execution petition was filed on 19th June 1951, in the District Munsif''s Court of Pudukkottai but was returned for

presentation to the proper Court on 2nd July 1951. On 9th July 1951, the execution petition was presented to the Sub-Court, Pudukkottai, and

was taken on file and numbered as Execution Petition No. 488 of 1951. On 15th December 1953, the execution petition was dismissed by the

advent of Madras Ordinance V of 1953, which put an embargo on proceedings against the judgment-debtor who was an agriculturist. The next

execution petition was Execution Petition No. 6 of 1958 presented on 26th September 1955 to the Sub-Court of Pudukkottai. The persons now

executing the decree are the legal representatives of the deceased decree-holder Ramanathan Chettiar and the person resisting the execution is the

legal representative of the deceased first Defendant judgment-debtor.

The contention of the judgment-debtor raised in the Courts below and now forming the subject-matter of the Civil Miscellaneous Second Appeal

is that the execution petition Execution Petition No. 6 of 1958 is barred by limitation. The whole of the plea rest upon Section 48, Code of Civil

Procedure. The date of the decree is 19th January 1943. Execution Petition No. 6 of 1958 was presented on 26th September 1955, and being a

fresh application for execution presented after the expiration of twelve years from the date of the decree sought to be executed, so the argument

ran, was barred by the terms of Section 48, Code of Civil Procedure. The learned Sub-Judge overruled the plea on the ground that the order

passed by the Munsif''s Court on 9th March 1950, was passed without jurisdiction and that, therefore, Execution Petition No. 568 of 1945 must

be deemed to be still pending and that no final orders had been passed in that execution petition and that Execution Petition No. 6 of 1958

presented on 26th September 1955, must be deemed to be in continuation of Execution Petition No. 568 of 1945 and not a fresh application

caught by Section 48, Code of Civil Procedure. In this view he held that the present execution petition is not barred by limitation.

On appeal by the judgment-debtor to the District Court of Tiruchirappalli, the learned District Judge confirmed the decision of the executing

Court on other grounds. He held that the provisions of Section 48, Code of Civil Procedure, pleaded by the judgment-debtor may not avail, in

view of the saving provisions of Madras Ordinance V of 1953, Madras Act V of 1954 and Madras Act I of 1955 which together grant a respite

of one year, six months and twenty-six days for the purpose of computing the period of limitation for suits and execution proceedings. He also held

that u/s 4(7) of Madras Act I of 1955 the provisions of Section 4(1) of that Act will be deemed to be a subsequent order within the meaning of

Section 48(1), Code of Civil Procedure.

The judgment-debtor has preferred the above civil miscellaneous second appeal and challenges the decision of the Courts below overruling the

plea of limitation. Mr. D. Ramaswami Ayyangar appearing for the Appellant, contended that Section 48 of the Code of Civil Procedure,

prescribing the outer limit of a period of twelve years does not constitute a period of limitation, that the saving provisions of the enactments referred

to Ordinance V of 1953, Act V of 1954 and Act I of 1955, which dealt with only exemption from the period of limitation, cannot, therefore, be

attracted and engrafted upon Section 48, Code of Civil Procedure. He contended that Section 48, CPC must be treated as fixing the statutory limit

of twelve years for execution of decrees from the terminus a quo in Clauses (a) and (b) of Sub-section 1 of the said section and cannot constitute

strictly what may be called the period of limitation, as the CPC was not concerned with fixation of the period of limitation. However attractive the

argument may be, it is not sustainable in view of the decision of the Full Bench of this Court in Kandaswami v. Kannappa ILR [1952] Mad. 421

(F.B.) which considered the applicability of Section 48 of the CPC in a context of orders of stay having prevented a decree-holder from executing

the decree, who would otherwise have availed himself of the provisions of Section 15 of the Indian Limitation Act. The question raised was

whether Section 48, Code of Civil Procedure, is controlled by Section 15(1) of the Indian Limitation Act. One of the questions considered by the

Full Bench was whether the period of twelve years mentioned in Section 48, CPC was a period of limitation within the meaning of Section 15 of

the Limitation Act. After reviewing elaborately all the prior decisions on the point their Lordships held that it was well-established that the

Limitation Act and Code were to be read together, because both were statutes relating to procedure and they were in pari materia, and, therefore,

to be taken and construed together as one system, as explanatory of each other. The following extracts from the judgment of the Full Bench at

page 442 have a bearing on the question now to be decided-

I venture to think further that even if it be understood in the strictest sense, the period fixed by Section 48 of the Code must be deemed to have

become a part of the Limitation Act by a process of incorporation in Articles 181 and 182. Column 1 of the Article 181 speaks of an application

for which no period of limitation is provided elsewhere in this schedule or in Section 48 of the Code of Civil Procedure, 1908. Whether the word

''prescribed'' in Section 15(1) would apply to periods of limitation provided by other statutes or not, it is clearly indicated by Article 181 that the

period fixed by Section 49 is in pari materia with the period of limitation provided in the schedule to the Limitation Act.

At page 444 there is another observation which may also be usefully referred to:

If by an act of Court over which the decree-holder has no control, he is prevented from recovering the fruits of his decree during the full period of

twelve years, it appears to me to be highly unreasonable that by the mere lapse of twelve years from the date of the decree, his rights should

become extinct, rights which he was prevented from enforcing for a part at lease of the period of twelve years.

The saving provisions under the special enactments referred to above are almost of a pattern resembling the provisions enacted u/s 15 of the

Indian Limitation Act. To quote Section 8 of the last enactment (Madras Act I of 1955), it prescribes that in computing the period of limitation for

a suit for recovery of a debt or an application for the execution of a decree in respect of a debt, the time during which the institution of the suit or

the making of the application was barred u/s 3 shall be excluded. It will be unreasonable to let Section 48, Code of Civil Procedure, have a free

play so as to destroy the beneficent effect of the special enactments relating to agriculturists. If Section 48, Code of Civil Procedure, is really a

fixation of the period of limitation as held by the Full Bench in Kandaswami v. Kannappa ILR [1952] Mad. 421 (F.B.) there cannot be any

difficulty in holding that Section 8 of Act I of 1955 and the other enactments which preceded it will have to be given their full effect by making them

govern Section 48, Code of Civil Procedure. The total period of one year, six months and twenty-six days has to be excluded from the period of

limitation prescribed u/s 48, Code of Civil Procedure. The period of one year, six months and twenty-six days is the total period occupied by the

ban under the three enactments, Ordinance V of 1953, Act V of 1954 and Act I of 1955.

Other High Courts have also taken the view that the twelve years in Section 48, CPC is only a period of limitation; Drigpal Singh v. Pancham

Singh ILR [1939] All 847 (F.B.), Ramgopal Bhutada v. Sidram Aunayya A.L.R. 1943 Bom. 164. In Sinnaru Thevan v. Nachiappa Chettiar

(1955) 1 M.L.J. 51, the decision of the Full Bench in Kandaswami v. Kannappa ILR [1952] Mad. 421 (F.B.) is followed.

I am of opinion that the principle laid down in Kandaswami v. Kannappa ILR [1952] Mad. 421 (F.B.) sufficiently repels the Appellant''s

contention and the Courts below were right in holding that the last execution petition, Execution Petition No. 6 of 1958, presented on 26th

September 1955, though beyond twelve years from 19th January 1943, was yet in time by the application of the saving provisions of the

enactments referred to above. In this view of the matter it is really unnecessary to consider whether the other point decided by the learned District

Judge regarding the applicability of Section 4(7) of Act I of 1955 is well founded or not. In the result this civil miscellaneous second appeal fails

and is dismissed with costs. No leave.