Bava C. Gopalaswami Mudaliar v. The Abisheka Kattalai attached to Sri Thiagarajaswami Devasthanam, Tiruvarur, by its Executive Officer — 1950 DIGILAW 25 (MAD)

Judgment Panchapakesa Ayyar, J.-The main point for determination in this second appeal is whether section 48 of the Code of Civil Procedure applies to and bars a decree of the Presidency Small Causes Court when it is transferred for execution to a mofussil Civil Court. The facts are briefly these: The appellant here is the assignee-decree-holder in S.C.S. No. 10554 of 1932 on the file of the Presidency Court of Small Causes, Madras. The decree was obtained on 8th November, 1932 on the foot of a promissory note executed by the first respondent, Vaidyalinga Pandarasannadhi, as trustee of the Abisheka kattalai of Sri Thiagaraja temple, Tiruvarur, in favour of one Sabapathi Mudaliar and endorsed to one Ratnasabapathi Mudaliar. The said decree was got amended on 23rd August, 1933 by directing the said Vydialinga Pandora Sannadhi to pay the decree amount out of the assets of the Abisheka kattalai and Annadhana kattalai of Sri Thiagarajaswami temple of Tiruvarur, in his hands, instead of its being a personal decree passed against him. This appellant was brought on record in the Presidency Court of Small Causes, Madras, on 8th January, 1937, as the assignee-decree-holder. The decree was transmitted to the District Munsif’s Court, Tiruvarur for execution on 13th December, 1940. We are not now concerned with the various other intricacies and the course of the cross-suits between the parties. Suffice it to say that this appellant filed E.P. No. 298 of 1941 in S.C. No. 10554 of 1932 on the file of the Court of Small Causes, Madras, in the District Munsif’s Court, Tiruvarur, and sought to attach the decree in O.S. No. 136 of 1936 on the file of the District Munsif’s Court, Tiruturaipundi in favour of his judgment-debtor and against him and to set off his dues under decree against what he had to pay under that decree. His E. P. was dismissed owing to alleged defects in cloumn 8 of the petition (nobody could say what those defects were!) and the learned Subordinate Judge also confirmed this order of dismissal. Thereupon the appellant took the matter up to this Court, in C.M.S.A. No. 186 of 1944. Somayya, J., by his judgment in Gopalaswami Mudaliar v. Executive Officer, Tiruvarur Devasthanam1, set aside the orders of the District Munsif and Subordinate Judge dismissing the E.P., and directed the execution petition to be taken on file and proceeded with according to law. Thereupon the appellant took the matter up to this Court, in C.M.S.A. No. 186 of 1944. Somayya, J., by his judgment in Gopalaswami Mudaliar v. Executive Officer, Tiruvarur Devasthanam1, set aside the orders of the District Munsif and Subordinate Judge dismissing the E.P., and directed the execution petition to be taken on file and proceeded with according to law. That judgment was passed on 12th March, 1945. Thereafter, on 5th September, 1945, the appellant prayed for the amendment of the Execution Petition and the attachment of some other immoveable properties belonging to the judgment-debtor, by a petition, E.A. No. 416 of 1945, as the attachment of the decree in O.S. No. 136 of 1936, had turned out to be infructuous. The District Munsif ordered attachment on 5th September, 1945, that is, after more than 12 years had elapsed since the passing of the decree on 8th November, 1932. It is, of course well settled law now, and this is not disputed by either side, that the amendment of 23rd August, 1933, would not be relevant for the purpose and that only the date of the original decree, namely 8th November, 1932, counts for the purpose of section 48, Civil Procedure Code. The main question in this appeal is whether the learned District Munsif was right in allowing the attachment of the additional properties after 12 years had elapsed, or whether the learned Subordinate Judge, who set aside the order of attachment, as the 12 years period prescribed under section 48, Civil Procedure Code had elapsed and no special circumstances for exemption from section 48 existed, was right. The position in law is by no means clear. The position in law is by no means clear. On the one hand we have got a Bench decision of this Court reported in Sri Krishna Doss v. Alumbu Ammal1, wherein Sundara Ayyar and Ayling, JJ., held that section 48, Civil Procedure Code being not applicable to the Presidency Small Causes Court, only Article 182 of the Limitation Act would be applicable to the execution of a decree of the Presidency Small Causes Court, even though the decree may be transferred by the Court which passed it to another Court which is subject to section 48, Civil Procedure Code regarding its own decrees for execution, as the law of limitation applicable for its execution is that of the Court which passed the decree and not of the Court which merely executes it as its agent. This ruling has been followed by a Bench of the Patna High Court in Ranganathan v. Ponnacharamma2. The rationale of the above two decisions is that section 48, Civil Procedure Code, had not been extended to decrees of the Presidency Small Causes Court under section 8, Civil Procedure Code, by the High Court, and so only Article 182 of the Limitation Act would apply, and the decrees of the Presidency Small Causes Courts would be executable without any time limit subject only to Article 182 of the Limitation Act, like the decrees of Chartered High Courts. If the position had rested there, there would have been no difficulty in law though there might have been anomaly in fact (to be remedied by the High Courts extending section 48, Civil Procedure Code, to the Presidency Small Causes Courts under section 8). But a later Bench of this Court has in Nagalinga Chetty v. Srinkasa Aiyangar3, held that section 48, Civil Procedure Code would apply to such a case also. Though Burn and Mockett, JJ., who decided that case, considered and rejected the contention that a decree of the Presidency Small Causes Court, transferred to a Civil Court subject to section 48, Civil Procedure Code for execution would not be subject to section 48, Civil Procedure Code but only to Article 182 of the Limitation Act, they did not consider the Bench ruling of this Court in Sri Krishna Doss v. Alumbu Ammal1, probably because it was not cited before them. The Patna Bench in the decision Ranganathan v. Ponnacharamma2, did not also consider the ruling in Nagalinga Chetty v. Srinivasa Aiyangar3, probably because it was not cited before them. It considered only the ruling in Sri Krishna Doss v. Alumbu Ammal1, and followed it. So, an important point of law is covered by conflicting rulings by two Benches of this Court and has to be resolved by being referred to a Full Bench, as represented by the counsel on both sides. I need not now consider the anomaly in fact, namely, that a decree of the Presidency Small Causes Court will not be subject to section 48, Civil Procedure Code while a decree of a District Court or City Civil Court will be subject to it. Nor need I consider the question of fraud or special cirumstances, as they do not arise in this case, where the whole case stands or falls according as section 48, Civil Procedure Code applies or does not apply to a transferred decree. I find it, therefore, necessary to refer the question to a Full Bench. The papers will be placed before the Hon’ble the Chief Justice for that purpose. The question will be, “Is a decree passed by the Presidency Court of Small Causes and transferred to a Court subject to the provisions of section 48, Civil Procedure Code, barred by limitation under section 48, Civil Procedure Code after the lapse of 12 years, or is it not affected at all by section 48 and only subject to Article 182 of the Limitation Act?” This appeal coming on for hearing on Monday the 12th day of December, 1949, in pursuance of the Order of Reference, the Full Bench (Mr. P.V. Rajamannar, Chief Justice Satyanarayana Rao and Krishnaswami Nayudu, JJ.) expressed the following Opinion: The Chief Justice.-The question referred by. Panchapakesa Ayyar, J., for decision by a Full Bench is as follows: “Is a decree passed by the Presidency Court of Small Causes and transferred to a Court subject to the provisions of section 48 of the Civil Procedure Code barred by limitation under section 48 of the Civil Procedure Code after the lapse of 12 years or is it not affected at all by section 48 and only subject to Article 182 of the Limitation Act?” This question was directly answered by a Division Bench in Sri Krishna Doss v. Alumbu Ammal1. The learned Judges, Sundara Ayyar and Ayling, JJ., held that the article of the Indian Limitation Act applicable to a decree of the Presidency Small Causes Court transferred for execution to the City Civil Court was Article 182, and section 48 of the Code of Civil Procedure was not applicable to a decree passed by the Court of Small Causes, and the fact that the Court to which the decree had been transferred was a Court the decrees of which would be governed by section 48 of the Code of Civil Procedure would not make any difference. So far as we are aware no subsequent decision has differed from the view taken in Sri Krishna Doss v. Alumbu Ammal1. In Nagalinga Chetty v. Srinivasa Aiyangar2, a Division Bench had to deal with a case in which a decree passed by the Presidency Small Causes Court was transferred to the City Civil Court for execution. Without any discussion and it appears to us that there was no contention raised before them on the point-the learned Judges assumed that section 48 applied to the case and the execution petition which was filed more than 12 years after the date of the decree was held to be barred by time. Burn, J., in the course of his judgment said: “The decree in the small cause suit was passed on 2nd February, 1926. The execution petition was filed on 27th October, 1938. It was a fresh application for execution. Prima facie section 48 prevents the Court from passing any orders for execution on such application”. Obviously the decision in Sri Krishna Doss v. Alumbu Ammal1, was not cited before the learned Judges conceivably because learned counsel appearing for the decree-holder did not raise the contention that section 48 did not apply to the case. We are in entire agreement with the reasoning of and the conclusion arrived at by the learned Judges in Sri Krishna Doss v. Alumbu Ammal1. Section 8 of the Code of Civil Procedure expressly excludes the application of section 48 to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay. It follows that section 48 does not apply to a decree passed by any of these Courts. Section 8 of the Code of Civil Procedure expressly excludes the application of section 48 to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay. It follows that section 48 does not apply to a decree passed by any of these Courts. Now, Article 182 of Schedule I of the Indian Limitation Act, column 1, runs as follows: “For the execution of a decree or order of any Civil Court not provided for by Article 183 or by section 48 of the Code of Civil Procedure, 1908”. Clearly the decree of the Presidency Small Causes Court is not provided for by section 48 of the Code of Civil Procedure. Therefore it follows inevitably that the only provision which prescribes a time limit for the execution of a decree of the Presidency Small Cause Court is Article 182. It was contended on behalf of the respondent-judgment-debtor that section 31 of the Presidency Small Cause Courts Act was not noticed by the learned Judges who decided Sri Krishna Doss v. Alumbu Ammal1. Section 31 of that Act provides for the transmission of the decree for execution to other Civil Courts. It then says: “The procedure prescribed by the Code of Civil Procedure for the execution of decrees by Courts other than those which made them shall be the procedure followed in such cases”. It is argued that this latter part of section 31 attracts the application of section 48 of the Code of Civil Procedure as well. We do not agree. Section 48 provides for a limit of time for execution and does not deal with the procedure for execution. In our opinion Sri Krishna Doss v. Alumbu Ammal1, was correctly decided and the decision in Nagalinga Chetty v. Srinivasa Aiyangar2, was wrong in so far as it assumed that section 48 would be applicable to the execution of decrees of the Presidency Small Causes Court when transferred to other Civil Courts governed by the Code of Civil Procedure. In our opinion Sri Krishna Doss v. Alumbu Ammal1, was correctly decided and the decision in Nagalinga Chetty v. Srinivasa Aiyangar2, was wrong in so far as it assumed that section 48 would be applicable to the execution of decrees of the Presidency Small Causes Court when transferred to other Civil Courts governed by the Code of Civil Procedure. This appeal coming on for final hearing this day after the expression of the opinion by the Full Bench, the Court delivered the following Judgment.-In view of the judgment of the Full Bench, it follows that the lower Appellate Court’s Judgment and decree in A.S. No. 77 of 1946, is set aside and the trial Court’s order attaching the immoveable properties of the judgment-debtor and directing the execution petition to proceed is restored. The second appeal is allowed with costs throughout including the costs of reference to the Full Bench. (Leave refused). V.S. -------- Appeal allowed.