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1949 DIGILAW 22 (KER)

Mani Mathu v. Augusthy Paili

1949-10-04

K.S.GOVINDA PILLAI, MATHEW MURICKEN

body1949
JUDGMENT : MATHEW MURICKEN, J. 1. Appellant is 4th defendant in O.S. 794 of 1103 of Moovattupuzha Munsiff’s Court. The appeal is against the order dated 28.6.1123 on C.M.P. 825 of 21.1.1123 holding that the decree is not barred by limitation. The decree is for redemption of property on payment of mortgage money, value of improvements and costs. The appellate decree is dated 20.11.1111. The present execution application by plaintiff is dated 31.11.1121. The 4th defendant objected to the execution on the ground of limitation. The plaintiffs contended that the admissions contained in the execution application dated 20.11.1117 by the 4th defendant for the realisation of the money due to him under the decree amounts to an acknowledgment of money due to him under the decree and that the decree is not therefore barred. The lower court repelled the defence plea and held that the decree is not barred by limitation. Hence this appeal by the 4th defendant. 2. The learned counsel for the appellant contends on the authority of the decision in Joseph Muthaliaru Kaki Muthaliyaru v. Narayana Pillay Sanda Pillay, reported in 1943 T.L.R. at 257 that the finding of the lower court is not correct. In that case a part of the decree was in favour of the plaintiff and a part in favour of the defendant. The defendant took out execution of his part against the plaintiff. When the plaintiff took out execution against the defendant, the defendant contended that the decree was barred. The plaintiff contended that the statement in the defendant’s execution application that a decree had been passed amounts to an acknowledgment. As there was no reference in the execution application of the defendant to part of the decree which was in favour of the plaintiff the majority of the Full Bench held that there was nothing in the defendant’s application either by express words or by implication suggesting that he was liable to the plaintiff and that it cannot be relied on as an acknowledgment. The facts of the case before us are different. In the execution application dated 20.11.1117 the 4th defendant had set out all the terms of the decree and thereby admitted his liability under the decree to the plaintiff. In Narayanan Vasudevan v. Narayanan Velayudhan, reported on 22 T.L.J. at 297 this court held that such admission amounts to a valid acknowledgment. 3. In the execution application dated 20.11.1117 the 4th defendant had set out all the terms of the decree and thereby admitted his liability under the decree to the plaintiff. In Narayanan Vasudevan v. Narayanan Velayudhan, reported on 22 T.L.J. at 297 this court held that such admission amounts to a valid acknowledgment. 3. The learned counsel for the appellant also contended that under O. 21 R. 9 of C.P.C. the defendant is compelled to enter in the execution application all the terms of the decree, that such setting out of the terms of the decree in the execution application cannot be deemed to be a conscious and voluntary admission and that such admissions cannot amount to a valid acknowledgment. We do not find any force in this contention. O. 21 R. 9 Cl. (2) of C.P.C. contains the particulars to be given in the execution application. We do not find any direction in the rule compelling the defendant to enter the particulars of the decree in favour of the plaintiff and against the applicant for execution. It cannot therefore be said that defendant’s statement of the terms of the decree in execution application was not voluntary. No authority has been cited in support of the position taken up by the counsel. It cannot at all be said that the admission of his liability under the decree to the plaintiff was not conscious admission of liability. For the reasons stated above this appeal fails and is dismissed with costs. Appeal dismissed.