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1970 DIGILAW 249 (KER)

UNNIKRISHNA MENON v. RAMAKRISHNA PILLAI

1970-11-18

P.SUBRAMONIAN POTI

body1970
Judgment :- 1. The following passage from Halsbury's Laws of England, 3rd Edition, Volume 24, Page, 198, was quoted in the decisions of this Court in Velayudhan v.Gokulan (1964 KLT. 600) and Kunhimutty v. Moideenkutty (1968 KLT. 580). "If an enactment renders a payment irrecoverable for a certain period, there may be a consequence, in default of express statutory provision, that the running of time under the appropriate limitation enactment is suspended while the payment is irrecoverable." The question arose in those cases in connection with the plea of limitation and was whether the provisions of Kerala Agriculturists' Debt Relief Act 1958 enabled the exclusion of the period during which the decree-holder, whose decree debt came within the definition of debt in the Act, could not have executed the decree for the entire decree amount, from computation of the period of limitation for execution. The Kerala Agriculturists' Debt Relief Act (hereinafter called the Act) provided, in S.20 thereof, for exclusion only of a period of six months in computing the period of limitation for execution of a decree. The Act came into force on 14th July, 1958. It was open to any decree-holder who held a decree against an agriculturist in regard to a debt coming within the scope of the Act to execute the decree in regard to such of those instalments as fell into arrears and if six consecutive defaults were made, then to execute for the whole of the decree amount. Therefore if the judgment-debtor in such a case did not make any deposits the decree became executable for the entire decree amount by 14-7-1961. In Kunhimutty v. Moideenkutty (1968 KLT. 580) a Bench of this Court said that though it was at the option of the decree-holder to exocuta for defaulted instalments he was not obliged to execute the decree piecemeal and until he was permitted to execute for the entire decree amount it has to be deemed that he was prohibited from executing the decree. This period was considered as one liable to be excluded in computing the period of limitation. The principle summarised in Halsbury's Laws of England in the passage which I have extracted above was applied to the case The same principle was applied earlier by a Bench of this Court in Velayudhan v. Gokulan (1964 KLT. 1964 KLT. 600). This period was considered as one liable to be excluded in computing the period of limitation. The principle summarised in Halsbury's Laws of England in the passage which I have extracted above was applied to the case The same principle was applied earlier by a Bench of this Court in Velayudhan v. Gokulan (1964 KLT. 1964 KLT. 600). Adopting this rule I should assume that the period available for execution under Art.182 of the Limitation Act 1908, in regard to a decree to which the Act applies is that extended by the period of three years of exclusion. In other words the principle is one of exclusion of a period of 3 years from the limitation period prescribed under Art.182 of the Limitation Act as well that provided in S.48 of the Code of Civil Procedure. 2. What is contended before me in the appeal is that the principle should really be not one of exclusion but one of computing limitation considering 14-7-1961 as starting point. The decree in the case was passed on 7-9-1953. The earlier execution application was dismissed on 8 -8-1956 and the next execution petition was filed on 19-8-1966 and it is in relation to that application the question of limitation has arisen. It is that application which is more than 12 years from the date of decree and it is more than 3 years from the final order on the previous application. Even if the period of 3 years from 14-7-1958 to 14-7-196! is excluded from computation, though for the purpose of S.48 of Code of the Civil Procedure, there will be no limitation, execution would be barred under Art.182 of the Limitation Act, 1908. To answer this, what is contended is that, if a period of 3 years from 14-7-1961 is treated as available, then execution would not have been barred on the date when the Limitation Act, 1963 came into force, on 1-1-1964. The period provided in that Act for execution is 12 years and therefore the present application would be in time. Therefore the entire question turns on whether the period from 14-7-1958 to 14-7-1961 should be excluded in the case of a debt coming within the scope of the Act or whether it should be deemed that 14-7-1961 should be treated as a fresh starting point for limitation. On this the execution court held in favour of the judgment-debtor. Therefore the entire question turns on whether the period from 14-7-1958 to 14-7-1961 should be excluded in the case of a debt coming within the scope of the Act or whether it should be deemed that 14-7-1961 should be treated as a fresh starting point for limitation. On this the execution court held in favour of the judgment-debtor. But this was reversed by the appellate court. The court below, in coming to the conclusion that 14-7-1961 should be treated as starting point for reckoning limitation, was influenced by the decision of this Court in Mammad v. Abdul Salam (1963 KLT. 288), Though that question did not as such arise in that case, the decision of the learned Judg3 lends some force to the argument of learned counsel for the respondent who sought to support the order of the court below. In that case, in execution of the decree passed on 22-9-1952 successive applications for execution were being made. The 2nd application was dismissed on 2-12-1957. The execution petition in relation to which question of limitation arose for decision was one filed on 17-8-1961. It was contended that it was barred as it was beyond the period of 3 years provided under Art.182 of the Limitation Act and it would be so even if the period under S.20 of Act 31 of 1958, was excluded. But if, as held later by two Division Benches of this Court the period between 14-7-1958 and 14-7-1961 were to be excluded the application would have been in time. But the learned judge held that the application in that case was in time on the basis that the decree passed in the case must be considered as an instalment decree which gave a cause of action for recovery of successive instalments on the respective dates of default and recovery in a lump on failure to deposit six consecutive instalments. It would, no doubt, appear from the judgment of the learned judge that it was considered that a new starting point for limitation would arise on these dates of defaults. 3. Whatever might have been the view expressed by my learned brother Velu Pillai, J., I think that in view of the later decisions of this Court considering the principle applicable as one of exclusion of the period during which decree could not have been executed in its entirety, the question must be considered as settled now. 3. Whatever might have been the view expressed by my learned brother Velu Pillai, J., I think that in view of the later decisions of this Court considering the principle applicable as one of exclusion of the period during which decree could not have been executed in its entirety, the question must be considered as settled now. I do not think that in view of the later Division Bench decisions reference to another Bench is called for in this matter. The principle of exclusion of period in such cases is based really upon the bar to the execution of the decree, the decree as it stands, namely the decree for the whole, of the decree amount, during the period of six consecutive defaults. 4. I may, in this connection, also refer to a decision of this court in Ahammad v. Achutha Menon (1964 KLT. 592). Relying upon a decision of the Madras High Court in Blchal Naidu v. S. K. Muthuramalingam (75 L.W. 477) it was contended in that case that by the effect of the provision in S.4 of Act 31 of 1958 a debt which is payable under the Act becomes payable in instalments within the meaning of Art.74 or 75 of the Limitation Act, 1908, and therefore the starting point of limitation with respect to each instalment is the date on which it fell due under the section or with respect to the whole debt when default has been made of six consecutive instalments. This court noticed the difference between the provisions of the Madras Act and the provisions of Kerala Agriculturists' Debt Relief Act of 1958 and refused to accept the construction put upon S.4 of the Act by learned counsel for petitioner in that case. The debt was not automatically converted into a debt payable in instalments within the meaning of Art. 74 or 75 of the 'Limitation Act resulting in the date for payment of such instalments operating as starting points of limitation. I think, what has been said in that case would apply with considerable force here and would go to support what I have said about limitation. I think, what has been said in that case would apply with considerable force here and would go to support what I have said about limitation. I think, in the case before me it is only exclusion from 14-7-1958 to 14-7-1961 that could be claimed for reckoning limitation and if so excluded the execution would have become barred under Art.182 of the Limitation Act, 1908 prior to 1-1-1964, when Act 36 of 1963 came into force. Hence there would be no scope for the decree being kept alive by reason of the new Act. In the result, I allow this Second Appeal with costs in reversal of the judgment of the court below. The execution application will stand dismissed as barred.