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1951 DIGILAW 61 (KER)

Abraham v. Varkey

1951-07-10

GANGADHARA MENON, VITHAYATHIL

body1951
Judgment :- 1. The 1st plaintiff in O.S. No. 313 of 1102 of the Meenachil Munsiff's Court pending execution in the Ettumanoor Munsiff's Court is the appellant in this case. The question that arises for consideration in this second appeal is whether the execution application filed by the plaintiffs is barred by limitation. The decree is one for redemption. The original mortgage was the 1st defendant. The mortgage right was sold in court auction in execution of a decree against the 1st defendant and it was purchased by one Padmanabha Pillai who assigned the right to one Anna the wife of the 2nd defendant and the mother of the 3rd defendant. After the death of Anna defendants 2 and 3 sub mortgaged the mortgage right to the 4th defendant. The 5th defendant is an assignee of the sub-mortgage right in respect of some of the properties. The 6th defendant took an assignment of the mortgage right from defendants 2 and 3 subject to the sub mortgage. After the decree the 4th defendant surrendered possession of the properties in his possession to the 6th defendant. 2. The first court decree was passed on 3.2.1107. It provides for redemption of the decree schedule properties from the defendants on deposit of the mortgage amount and value of improvements by the plaintiffs. The plaintiffs are also made liable for the costs of the defendants. In appeal filed by the 4th defendant the value of improvements awarded to him by the trial court was enhanced and the 4th defendant and the plaintiffs were awarded costs proportionate to their success in the appeal. 3. The appellate decree was passed on 20.1.1109. On 13.8.1111 the 4th defendant filed an execution application for realising the costs due to him from the plaintiffs after setting off the amounts due to the plaintiffs. In reply to the objection filed by the plaintiffs to the execution application the 4th defendant filed a statement on 4.10.1112. In that statement the 4th defendant admitted that the decree in the case was subsisting on that date. 4. On 17.6.1118 the decree-holders applied for the first time for delivery of possession of the properties on payment of the mortgage amount and value of improvements. Defendants 4,5 and 6 objected to the execution application and contended that the application was barred by limitation. These objections were disallowed by the trial court. 4. On 17.6.1118 the decree-holders applied for the first time for delivery of possession of the properties on payment of the mortgage amount and value of improvements. Defendants 4,5 and 6 objected to the execution application and contended that the application was barred by limitation. These objections were disallowed by the trial court. The 6th defendant alone appealed from that order as A.S. No. 187 of 1119. The District Court held that the application was barred by limitation. In second appeal filed by the decree-holders (as S.A. 484 of 1119) the High Court set aside the orders of the lower courts and remanded the case for fresh disposal. After the remand defendants 8 and 9 who are the legal representatives of the deceased 5th defendant also filed an objection to the execution of the decree. The trial court again held that the execution application dated 17.6.1118 is not barred by limitation. In appeal filed by the 6th defendant the District Court reversed this finding and held that execution is barred by limitation. The first plaintiff has filed this second appeal from that order. 5. It is argued by the learned Advocate for the appellant that the execution application dated 17.6.1118 is not barred by limitation for three reasons. One is that the period of limitation for this application should be calculated from the date of the disposal of the execution application filed by the 4th defendant on 13.8.1111 which was disposed of only on 29.10.1112 and that this execution application filed within 6 years from that date and within 12 years from the date of the appellate decree is not barred by limitation. The second is that the statement filed by the 4th defendant on 4.10.1112 amounts to an acknowledgment of the liability under the decree and that this application filed within six years from that date is saved from limitation. The third is that limitation for recovery of possession of the properties will begin to run only from the date of deposit of the mortgage amount and value of improvements by the plaintiffs. 6. With regard to the first ground, the argument is that the application filed by the 4th defendant on 13.8.1111 for the realisation of costs due to him under the decree is an application for execution of the decree and that under Art. 166 Cl. 6. With regard to the first ground, the argument is that the application filed by the 4th defendant on 13.8.1111 for the realisation of costs due to him under the decree is an application for execution of the decree and that under Art. 166 Cl. 5 of the Travancore Limitation Act an application for execution of the decree filed within six years of the disposal of a former execution application is not barred by limitation. It is true that under that clause an execution application filed within six years from the date of disposal of a prior execution application is not barred. But that clause has to be read along with Explanation I to Art. 166. According to that explanation when the decree has been passed severally in favour of more persons than one, distinguishing portions of the subject matter as payable or deliverable to each, the application mentioned in Cl. 5 of the Article shall take effect in favour of only such of the said persons or their representatives as it may be made by; and when the decree has been passed severally against more persons than one, distinguishing portions of the subject matter as payable or deliverable by each, the application shall take effect against only such of the said persons or their representatives as it may be made against. In the present case the decree allowing the plaintiffs to redeem the properties on payment of the mortgage amount and value of improvements and awarding costs to the 4th defendant is clearly a decree passed severally in favour of the plaintiffs and the 4th defendant, distinguishing portions of the subject matter as payable or deliverable to each. The liability of the 4th defendant under the decree to surrender possession of the properties on receipt of the mortgage amount and value of improvements and that of the plaintiffs to pay the costs of the 4th defendant cannot be said to be a joint liability. It is a case of distinguishing portions of the subject matter of a decree being made payable or deliverable by the plaintiff and the 4th defendant. In the circumstances we do not think that the execution application filed by the 4th defendant for costs enures to the benefit of the plaintiffs. In Jeddi Subbaraya v. Ramdas (ILR 22 Bom. It is a case of distinguishing portions of the subject matter of a decree being made payable or deliverable by the plaintiff and the 4th defendant. In the circumstances we do not think that the execution application filed by the 4th defendant for costs enures to the benefit of the plaintiffs. In Jeddi Subbaraya v. Ramdas (ILR 22 Bom. 998) it was held that in the case of a decree passed partly in favour of the plaintiff and partly in favour of the defendant application for execution by one party would not prevent limitation running against the other. This decision was followed by the Travancore High Court in Kaki Muthaliaru v. Sankara Pillai (1943 TLR 257) although the actual question decided in that case was whether in the case of a decree passed partly in favour of the plaintiff and partly in favour of the defendant an execution application filed by the defendant would amount to an acknowledgment of that part of the decree which was in favour of the plaintiff. Dhirundra Nath Sarkar v. Nischintapore Company (22 CWN 192) is another case in which the same view was held by the Calcutta High Court; and this decision was followed by the Travancore High Court in Parameswaran Pillai v. Joseph (1943 TLR. 1004). Reference may also be made to the decisions in Chulam Mohhiddin v. Dambar (ILR 40 All. 206); Birendra Ghandra v. Thulsi Charan (85 IC 657); Troylokya v. Jyotti (ILR 30 Cal. 761); Hafiz Mud. Abdulla v. Amrao Singh (AIR 1934 Lah. 637). In all these cases it was held that when the rights and liabilities under a decree are separate and several an application by one party will not enure to the benefit of the other. 7. The learned Advocate for the appellant relied on a decision of the Bombay High Court, i.e., Bacharaj Nyahalchand v. Babaji Thukaram (ILR 37 Bom. 48) in support of his position. That was a case in which separate reliefs were granted under the decree to the plaintiff and to the defendant. The plaintiff was allowed to redeem the mortgage property on payment of a particular sum of money by annual instalments. The decree also provided that on failure to pay any two instalments the plaintiff's right to redeem would be foreclosed and the defendant would be entitled to be placed in possession of the property. The plaintiff was allowed to redeem the mortgage property on payment of a particular sum of money by annual instalments. The decree also provided that on failure to pay any two instalments the plaintiff's right to redeem would be foreclosed and the defendant would be entitled to be placed in possession of the property. The decree was passed on the 3rd July 1900. On the 20th July 1905 the plaintiff made an application to the court which was consented to by the defendant for certifying the payments of two instalments. No other payments were made by the plaintiff. On the 14th December 1907 the defendant applied to foreclose the decree. The question that arose for consideration was whether the application made by the plaintiff on the 20th July 1905 would save limitation for the application made by the defendant. It was held that both as an acknowledgement of the decree and also as a step in aid of execution it would save limitation. The reason given by Their Lordships for holding that the application of the plaintiff was a step in aid of execution of the decree that would enure to the benefit of the defendant is that it should be treated as a joint application by the plaintiff and the defendant. This decision therefore does not support the position taken by the appellant in this case. We have no doubt that the application made by the 4th defendant on 13.8.1111 will not enure to the benefit of the plaintiffs so as to save limitation for their execution application. 8. The next question is whether the statement filed by the 4th defendant on 4.10.1112 amounts to an acknowledgment of the decree in favour of the plaintiffs under S.19 of the Travancore Limitation Act. We agree with the lower courts in their view that this statement amounts to an admission of liability under the decree. The words ""vMiMpjOygMyV vLhMWY V WMS•°fLp keU" (The amount the plaintiffs are entitled to get under the decree) in paragraph 4 of the statement leave no room for doubt that the 4th defendant acknowledged liability under the decree. But the question for consideration is whether that acknowledgement will bind the 6th defendant and keep the decree alive to far as he is concerned. As stated above, the 4th defendant was only a sub mortgagee of the mortgage right. But the question for consideration is whether that acknowledgement will bind the 6th defendant and keep the decree alive to far as he is concerned. As stated above, the 4th defendant was only a sub mortgagee of the mortgage right. Under S.19 of the Travancore Limitation Act the acknowledgment of liability in respect of a property or right had to be made by the party against whom such property or right is claimed or by some person through whom he derives title or liability. The 6th defendant has not derived title to the mortgage right through the 4th defendant. It was argued by the learned Advocate for the appellant that since the 6th defendant got possession of some of the mortgage properties from the 4th defendant after the date of the decree the former must be deemed to have derived liability to surrender those properties to the plaintiffs through the 4th defendant. We do not think that there is any force in this contention. The 6th defendant derived his right to the mortgage properties and the liability to surrender the same through defendants 2 and 3. Under the decree he was liable to surrender possession of the properties to the plaintiffs. His subsequent recovery of possession of some of the properties from the sub mortgage did not create any fresh liability on him to surrender possession of those properties to the plaintiffs. So in no sense can it be said that the 6th defendant derived title or liability in respect of the mortgage right through the 4th defendant. Therefore the acknowledgement made by the 4th defendant in his statement dated 4.10.1112 cannot bind the 6th defendant and will not save limitation as against the latter. As held by the Allahabad High Court in Ahsan Ul-lah v. Dakkinise Din (ILR 27 All. 575) an acknowledgment made by one of several persons jointly liable under a decree otherwise than as agent of his co-judgment-debtors, cannot operate to save limitation as against any of the judgment debtors other than the person making the acknowledgment. We are therefore of opinion that neither the execution application filed by the 4th defendant on 13.8.1111 nor the statement filed by him on 4.10.1112 will give the plaintiffs a fresh starting period of limitation for executing the decree against the 6th defendant. 9. We are therefore of opinion that neither the execution application filed by the 4th defendant on 13.8.1111 nor the statement filed by him on 4.10.1112 will give the plaintiffs a fresh starting period of limitation for executing the decree against the 6th defendant. 9. The third argument advanced by the learned Advocate for the appellant is that under the decree the plaintiffs get the right to redeem the properties only on payment of the mortgage amount and value of improvements and that therefore the period of limitation for recovery of possession of the properties can run only from the date of deposit of those amounts. Reliance was placed for this position on a ruling of the Allahabad High Court i.e., Jugal Singh v. Lochan Singh (AIR 1945 All. 10). That was case in which on the death of a Hindu widow the nearest reversioner brought a suit for possession of the property alienated by the widow. The suit was decreed but the court ordered that the reversioner would get possession of the property only on payment of a particular sum. No time was fixed for payment of the amount. One of the points raised in appeal was that the plaintiff was bound to deposit the amount within three years from the date of the decree. Malik, J. observed that in such cases neither Art. 181 (Art.165 of the Travancore Act) nor Art.182 (Art.166 of the Travancore Act) would apply and that the decree holder could make the deposit and apply for delivery of possession of the property within 12 years from the date of the decree or within such period which falls short of the period necessary for the judgment-debtor to acquire an independent title to the property. Mathur, J. the other judge who took part in the decision was of opinion that the question did not arise for consideration in the appeal. We do not think that it is necessary for the purpose of this case to canvass the correctness of the opinion of Malik, J. on the point. The present case is one of redemption of a mortgage and we have no doubt that Art.166 of the Travancore Limitation Act (Art.182 of the Indian Act) applies to execution of decrees for redemption. The present case is one of redemption of a mortgage and we have no doubt that Art.166 of the Travancore Limitation Act (Art.182 of the Indian Act) applies to execution of decrees for redemption. Reference may be made to the rulings reported in Kochumman v. Karthiyayani Pillai (32 T.L.J. 304); Krishnan v. Narayanan (17 TLJ 767) and Narayanan Krishnan v. Kumaran Krishnan (6 TLJ 141). 10. For the above reasons we hold that the execution application filed by the decree-holders on 17.6.1118 is barred by limitation as against the 6th defendant. We therefore dismiss the Second Appeal with costs. Dismissed.