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1956 DIGILAW 63 (KER)

Easwara Pillai Krishna Pillai v. Raman Pillai Velayudhan Pillai

1956-06-26

NANDANA MENON, SANKARAN

body1956
Judgment :- 1. This second appeal is preferred by the plaintiff decree-holder and is directed against the concurrent decisions of the lower courts to the effect that the decree was barred. The decree is dated 6th June 1944 corresponding to 24.10.1119. It was a registered one and hence the decree-holder has six years' time. The first execution petition was filed on 24.12.1126 corresponding to 9.8.1951. That was rejected on the same day. The next execution petition was filed on 25.9.1951 when the judgment debtor contended that the decree was barred while the decree-holder relied upon certain alleged acknowledgments in Exts. A to G to save limitation and to show that the 1st execution petition was not barred in which case the 2nd petition is in time. Both the lower courts held that the statements relied upon by the decree-holder were not sufficient acknowledgments in law to get over limitation. What is contended on behalf of the plaintiff is that the statements in Exts. E and G definitely acknowledged the existence of the liability under the decree in question and hence are sufficient to get over limitation. Ext. E is the copy of memorandum of appeal in a civil miscellaneous appeal preferred for getting the suit restored after setting aside the decree passed. Details of the decree are not referred to therein. Ext. G is the copy of a petition filed in the aforesaid C.M.A. for staying execution proceedings in another suit on the ground that it was connected with O.S. 491 of 1118. There all the circumstances leading to the passing of the decree in O.S. 491 of 1118 are referred to. While contending that the hypothecation bond which was the basis of the suit was not supported by consideration and hence the decree was wrong the statements therein are enough admissions on the part of the defendant of the existence of an enforcible decree against him. The question is whether such statements are sufficient acknowledgments to get over limitation. Chacko v. Ouseph (26 TLJ 942) deals with a case of like nature. There also the statement that was relied upon was one in an application to set aside the decree on the ground that the same was passed exparte. The question is whether such statements are sufficient acknowledgments to get over limitation. Chacko v. Ouseph (26 TLJ 942) deals with a case of like nature. There also the statement that was relied upon was one in an application to set aside the decree on the ground that the same was passed exparte. It was held that as the words used were sufficient to show that there was an existing jural relationship of creditor and debtor such references to the decree amounted to an acknowledgment in law which save limitation. Chainamlummal v. Ali Akbar (28 TLJ 1306) and Madhavan Pillai v. Kaliani Amma (29 TLJ 1396) referred to on behalf of the defendant are only to the effect that the statements relied upon must be such as to show the existence of the liability under an enforcible decree and not merely the passing of a decree. They do not over-rule 26 TLJ 942. Ittaman v. Thioyyoi (1953 KLT 77) relied on by the lower appellate court does not apply to the facts of this case. For here there is an admission of the existence of a binding decree though it was further stated that the decree was wrongly passed. Coming to the Indian decisions Jatiya Kalyan Insurance Society Ltd. v. Saroj Ranjan Chaudhuri (AIR 1939 Calcutta 489) in a way supports the defendant. But that refers only to adjournment applications relied upon by the decree-holder. Achutan v. Abdu (AIR 1925 Madras 675) only lays down that a mere statement about the passing of a decree will not amount to any acknowledgment as that will not indicate the existence of an enforcible decree. On the other hand, Sukhamoni Chowdhrani v. Ishan Chunder Roy (25 Indian Appeals 95) and Hingan Lal v. Nanse Ram (ILR 18 Allahabad 334) support the position taken up by the plaintiff. So there is no ground to depart from the principle laid down in 26 TLJ 942 which is in full support of the appellant's position. So the lower courts were wrong in holding that the decree is barred. 2. In the result, the second appeal is allowed with costs.