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1974 DIGILAW 92 (KER)

VARGHESE v. OUSEPH

1974-06-05

CHANDRASEKHARA MENON, V.P.GOPALAN NAMBIYAR

body1974
Judgment :- 1. This Second Appeal has been referred to a Bench by Namboodiripad J. The question raised is one of limitation in regard to the execution of a decree in O. S. No. 125 of 1952, Munsiff's Court, Kanjirappally. The decree was dated 18154; and the first execution petition was filed on 1811957 and dismissed on 311 1957. The present execution, petition, in regard to which the question of limitation arises, was filed on 12 8 1969. The Kerala Act 31 of 1958 came into force on 14-7-1958. It did affect execution of decrees against agriculturists like the judgment-debtor in this case. The decree could be executed in terms of its apparent tenor only on 15 -71961, after the 6th consecutive default was made by the judgment-debtor in paying up the decree in instalments a benefit conferred on an agriculturist under the provisions of the Act. It has been found by both the courts below that this period of limitation is liable to be excluded in computing limitation for the E. P. There can be no quarrel with this proposition. But even after excluding the said period, it is difficult for us to sustain the conclusion that the present execution petition filed beyond three years of the dismissal of the previous one and beyond twelve years of the decree, is still within time. Counsel for the decree-holder respondent sought to sustain this conclusion by contending that after the coming into force of Act 31 of 1958 on 14 71958, there was an automatic transmutation of the character of the decree into an instalment-decree, the judgment-debtor being entitled to pay up the decree in seventeen equal instalments, and the decree-holder being entitled to execute the decree only on the sixth consecutive default, (unless he executed for the defaulted instalment), under the provisions of the Act. The result, it was said, was. that limitation will start running at all only from 15 71961. From that date, the decree-holder would have three years' time to file the execution petition. But before that period, the Limitation Act of 1963, came into force, under which, the time-limit was enlarged to twelve years under Art.136. In this view, it was said, that the execution petition was not barred by limitation. We may examine the provisions of the Act to consider the tenability of this argument. 2. But before that period, the Limitation Act of 1963, came into force, under which, the time-limit was enlarged to twelve years under Art.136. In this view, it was said, that the execution petition was not barred by limitation. We may examine the provisions of the Act to consider the tenability of this argument. 2. S.3(1) of the Act prohibits applications for execution of a decree in any court before expiry of six months from the commencement of this Act. S.3(2) provides that if a creditor files a suit for recovery of a debt before expiry of six months from the commencement of this Act, or after the agriculturist has paid or deposited the sums in the instalments specified in S.4, the Court shall deny costs to the plaintiff and direct him to pay the costs of the defendant. S.4(1) provides that notwithstanding any law or contract or decree of court, any debt may be discharged in the manner provided in sub-sections (2) and (3). Sub-s. (2) ordains the discharge of the debt together with interest in seventeen equal half-yearly instalments. Sub-s. (3) provides for the dates on which each of the instalments has to be paid. Sub-s. (5) enacts that where the instalment is not paid on the due date, the creditor shall be entitled to recover the same as provided in S.10; and that if default is made of six consecutive instalments, the debtor shall not be entitled to the benefits of sub-sections (2) and (3) and the whole debt less what has been paid shall be forthwith payable. S.10, to which reference is made in S.4(5) of the Act, provides in sub-s. (1) that where any instalment is defaulted, the decree-holder shall be entitled to execute in respect of the defaulted instalments. 3. We may then refer to the provisions of S.7 and 20. S.7 provides for the amendment of a pre-Act decree on the application of any agriculturist judgment-debtor or of the decree-holder, so as to apply the provisions of the Act. Sub-s. (2) makes the provisions of sub-s. (1) applicable also to cases of post-Act decrees. S.20 enacts that in computing the period of limitation for application for execution of a decree in respect of a debt, the time during which the making of the application was barred under S.3 shall be excluded. 4. Sub-s. (2) makes the provisions of sub-s. (1) applicable also to cases of post-Act decrees. S.20 enacts that in computing the period of limitation for application for execution of a decree in respect of a debt, the time during which the making of the application was barred under S.3 shall be excluded. 4. The above provisions in our opinion, are inadequate to sustain the argument that a decree passed prior to the commencement of the Act, gets automatically transmuted to an instalment-decree. S.4 (1) provides only for a mode of discharge of the decree and no more. The proviso to S.4 (5) of the Act provides that on the sixth consecutive default, the decree debt shall be payable. True, that although under the provisions of the Act the decree-holder can execute for the defaulted instalments, it has been ruled that he is not bound to execute the decree in driblets, and can well wait till the sixth consecutive default, and proceed to execute only for the entire decree which has become payable forthwith thereafter. Counsel for the respondent would read an implied prohibition against execution of the entire decree from the provisions of S.20 and S.4; and on the basis of such implied prohibition would spell out an automatic transformation of the character of the decree. We cannot agree. The provisions of S.7, which provides for an amendment of the decree seems to us to be against such automatic transformation. 5. On the language of S.20 of the Act too, the decree-holder is entitled only to an exclusion of the period during which the making of an application was barred under S.3. On principle, it appears to us, he will be entitled to that and no more, in regard to the period of time, for which the agriculturist judgment-debtor could enjoy the benefit of making instalment payments, during which time, execution could not be taken out for the entire decree. We are unable to hold that limitation would start for the first time only on 15 7 1961 when the sixth consecutive default occurred. Especially do we find it difficult to so hold, as the decree in question was passed prior to the Act, and limitation started running from the date on which it was so passed. We are unable to hold that limitation would start for the first time only on 15 7 1961 when the sixth consecutive default occurred. Especially do we find it difficult to so hold, as the decree in question was passed prior to the Act, and limitation started running from the date on which it was so passed. We find no provision to obliterate the time which started running from the date of the decree, and write on a clean slate from 14 71961. 6. Counsel for the respondent placed reliance on the decision of a learned judge of this Court in Mammad v. Abdul Salam (1963 KLT. 283). There is no doubt that the observations made in that decision support the decree-holder. But it appears to us that these observations are rather wide, and cannot be sustained in view of the subsequent decisions to which we shall refer. The decision in 1963 KLT. 283 referred to Sankaralinga Konark case (1960 II M.L.J. 67) rendered with respect to the provisions of the Madras Indebted Agriculturists (Repayment of Debts) Act, I of 1955, where it was observed that by reason of the operation of the statute, the decree amount was payable only in instalments and the decree became an instalment decree by force of the statute. It was further held that if the decree-holder can recover the money only in instalments as provided by the statute, and has to wait for the instalments to be due, it would be unreasonable to hold that during the period of waiting, the statute of limitation was running against him. The principle of the decision was applied by a Division Bench of the Madras High Court to suits in Bichal Naidu's case (1962-II-M.L.J. 352). But a later Division Bench of this Court in Velayudhan & Others v. Gokulan & Others (1964 KLT. 600) explained that the decree-holder was entitled only to exclude the period during which limitation was suspended under the provisions of the Kerala Act 31 of 1958. The same Division Bench in Ahammad Alias Kunhu v. Achutha Menon (1964 KLT. 592) referred to the decision of the Madras High Court in 1962(11) MLJ. 600) explained that the decree-holder was entitled only to exclude the period during which limitation was suspended under the provisions of the Kerala Act 31 of 1958. The same Division Bench in Ahammad Alias Kunhu v. Achutha Menon (1964 KLT. 592) referred to the decision of the Madras High Court in 1962(11) MLJ. 352 noticed by the learned judge in 1963 KLT, 283, and pointed out that the Madras Act was different from the Kerala Act, as there is no provision in the Madras Act, like S.3 (2) of the Kerala Act, which allowed the institution of a suit, for recovery of the entire debt, even after the commencement of the Act. It was pointed out by the Division Bench that S.20 of the Act extends the period of limitation only for applications for execution of the decree, and the absence of any similar provision extending the period of limitation of a suit, was conspicuous. In Kunhimutty v. Moideenkutty (1968 KLT. 580) a Division Bench of this Court referred to the well-known principle that if any enactment rendered a payment irrecoverable within a certain period, the running of time under the appropriate limitation enactment is suspended while the payment is irrecoverable. On that basis, after considering the provisions of the Act, the Division Bench ruled that the decree-holder was entitled only to the benefit of exclusion of the period for which execution of the decree stood suspended. The question that we have to consider in the instant case, came for consideration more specifically before our learned brother Poti J. in Unnikrishna Menon v. Ramakrishna Pillai (1971 KLT. 171). After an examination of the relevant decisions, the learned judge if we may say so, with respect, correctly pointed out that the principle was only one of exclusion of the period during which the decree could not have been executed in its entirety. That appears to us to be the correct principle, on the provisions of the statute and the state of the authorities that we have referred to earlier. 7. If the decree-holder is entitled only to an exclusion of period of time and not to a re-start of the period of limitation, from 14 71961, it was rightly conceded that the application would be barred by limitation. 7. If the decree-holder is entitled only to an exclusion of period of time and not to a re-start of the period of limitation, from 14 71961, it was rightly conceded that the application would be barred by limitation. We therefore allow this appeal, set aside the judgment and decree of the courts below and hold that the execution application is barred by limitation. The same would accordingly stand dismissed with costs throughout. Dismissed.