Vachali Rohini vs Pathalathum Kandi Kombi Aliassan and Others

Sir John Wallis, Kt., C.J.—The period of limitation prescribed by Articles 165 and 168 may be traced back to Sections 230 and 269 of the Code of Civil Procedure, 1859, which dealt only with obstructions by and, dispossessions of, persons other than the Defendant. The provision in Section 230 was re-enacted as Article 158 (now 165) of the Limitation Act of 1871 as follows:

Under the CPC by a person dispossessed of immoveable property and disputing the right of the decree-holder to be put into possession.

This, in my opinion, must be read as meaning

disputing the right of the decree-holder to be put into possession under the decree.

That question had been decided against the Defendant in the suit itself, and it was not open to him to raise it again in execution. This shows that Article 158 was intended to apply only to a case covered by Section 230 of the Code where a person other than the Defendant had been dispossessed, and that is in accordance with ordinary presumption that no substantial alteration is intended when a particular provision is transferred from one statute to another. Article 158 of the Act of 1871 did not provide for applications by a decree-holder who had been resisted by third persons in taking possession under the decree, whereas Article 160 (now 167) dealt with complaints in the case of Court sales both by the purchaser and by persons dispossessed by him (Section 269 of the Code of 1859). In the Act of 1877 Article 158 was reproduced as Article 165 and amended by inserting after "decree-holder" the words "or purchaser at a sale in execution of a decree," and Article 167 was amended by extending it to complaints of obstruction by decree-holders as well as by purchasers (a case not dealt with by the Act of 1871), and by making it applicable to applications complaining of dispossession, not only by auction-purchasers, but also by decree-holders. Both these cases were, however, covered by Article 165 as amended, and the latter portion of this article was therefore not reproduced in Article 167 of the Act of 1908. In Vaithilinga Muppanar v. Seethalakshmi Ammal (1891) M.L.J. 42 which was followed in Ratnam Ayyar v. Krishna Doss Vital Doss I.L.R.(1898) Mad. 494 the learned Judges relied on the fact that Articles 165 and 167 do not in terms exclude the judgment-debtor, but their attention was not called to the fact that the articles were transferred from the Code of 1859 where the restriction was to be found. They further observed that

unless the articles referred severally to judgment-debtors as well as to third parties there would be tautology.

There was however tautology in the Act of 1877 in either view, and in the Act of 1908 Article 167 was amended so as to remove it. There is in my opinion nothing in these changes to show any intention of widening the scope of the article so as to make it applicable to Defendants.

The decision in Ratnam Ayyar v. Krishna Doss Vital Doss I.L.R.(1898) Mad. 494 having stood so long unquestioned in this Court and elsewhere I have felt great doubt as to whether we should not continue to follow it, having regard to the nature of the points decided on the principle of stare decisis. The legislature has, however, itself restricted the scope of Article 165 by restricting in the Code of 1908 applications by third parties under Order XXI, Rule 100, to applications which reference to property covered by the decree or sale in pursuance thereof, and the fact that this procedure is not now applicable to complaints by third parties of dispossession of property not covered by such decree or sale appears to me to afford additional reason for excluding from the scope of the article similar complaints by Defendants who, as I am satisfied, were never intended to be covered by it. I think, moreover, that the rights of Defendants are sufficiently restricted by their being required to apply u/s 47 within the period limited by Article 181. Agreeing with the decision in Abdul Karim v. Islamunnissa Bibi I.L.R.(1916) All. 339 I would overrule Ratnam Ayyar v. Krishna Doss Vital Doss I.L.R.(1898) Mad. 494 and answer the question in the negative.

Ayling, J.

I agree.

Sadasiva Ayyar, J.

In this case, I shared with my Lord (if I may respectfully say so) the hesitation he felt in overruling the odd decision in Ratnam Ayyar v. Krishna Doss Vital Doss I.L.R.(1898) Mad. 494. But I am convinced after reading his opinion that that decision is erroneous. As cases of wrong delivery of judgment-debtors'' property in excess of that decreed are rare and as it is very unlikely that many titles could have been created arising from alienations of such property by decree-holders to purchasers who believed the title to have been perfected by the default of judgment-debtors to file their applications within the shorter period of limitation till now prevailing, and as most of even those titles would have been perfected by the lapse of three years since the dates of such alienations, I agree in the answer proposed by my Lord.