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1977 DIGILAW 24 (KER)

JANAMMA BHAGAVATHY v. RAMAN NADAR

1977-01-25

GOPALAN NAMBIYAR, P.JANAKI AMMA

body1977
Judgment :- This appeal arises from proceedings in execution of the decree in O. S. No. 160 of 1109 of the Munsiff's Court, Nedu-mangad, dated 20-4-1110 (5-12-'34). Nearly forty-two years since the date of the decree still leaves the fruits of the decree unrealised. The 10th defendant (one of the judgment-debtors) is the appellant in this appeal; and the only question agitated is whether E. P. No. 162 of 1968 filed against him on 211968 is barred by limitation. The plea was upheld by the execution court But its judgment was reversed on appeal by the lower appellate court which held the execution petition to be within time. A learned judge of this Court dismissed the Second Appeal against that judgment. In granting leave to appeal, the learned judge noted the plea of Counsel for the Respondents that the dismissal of the previous execution petition was not by judicial order, and left open the plea. 2. E. P. No. 405 of 1961 was dismissed on 17 31964, E. P. No. 162 of 1968 out of which this appeal arises, was filed on 2 81968 which is beyond 12 years from the date of the decree and beyond 3 years from the dismissal of E. P. No. 405 of 1961. The reasoning adopted for saving limitation was that by reason of the intervention of the Kerala Agriculturists Debt Relief Act (Act 31 of 1958) which permitted the payment of debt by agriculturists in seventeen equal instalments, the decree had become transmuted into an instalment decree and that limitation would start from the date of default of the last of the six consecutive instalments viz. on 14 7 '61 and therefore that the execution petition No. 162 of 1968 would not be barred, having regard to Art.136 of the Limitation Act, which had been passed into law, before the said E P. was filed. We may observe, the view of the learned judge in Second Appeal was expressed thus: "The reasonable construction would be that the provision enables the decree-holder to execute the decree in lump on failure on the part of the debtor to pay six instalments consequently. without imposing a penalty of losing his right to execute the decree for future instilments, if he chooses to do so, as and when they fall due, which course is advantageous to the debtor himself. without imposing a penalty of losing his right to execute the decree for future instilments, if he chooses to do so, as and when they fall due, which course is advantageous to the debtor himself. To my mind it is therefore clear that the decree is within time, if Act 31 of 1958 was found to be applicable to the decree on the date on which the Act came into force, as found by the first appellate court." 3. Counsel for the appellant invited our attention to the ruling of the Division Bench of this Court in Varghese v. Ouseph (1974 KLT. 553), and to the Full Bench decision in Appicha Asari Unni Asari v. Vairavan Asari Sasthavasari 1975 KLT 23). These are sufficient authorities for the position that there is no transmutation of the decree into an instalment decree as a result of the intervention of the Kerala Act 31 of 1958, and that limitation has got to be reckoned not from the occurrence of the default in respect of each instalment, nor from the date of default of the sixth consecutive instalment, but only from the date of the original decree. Being so, the execution petition is barred by limitation and is not saved by Act 31 of 1958. 4. But counsel for the respondent sought to avoid the position in two ways. First he argued that E P. No. 162 of 1968 was only a continuance of E. P. No. 405 of 1961. On the terms of the order on the prior E. P. we cannot countenance such an argument and we have no hesitation in rejecting the same. 5. The second point raised by the Counsel, requires very serious examination. He invited our attention to S.6, clause (2) of Act 31 of 1958, as amended by Act 2 of 1961, which reads: "An order passed under the provisions of S.4 shall be deemed 10 be a subsequent order of court within the meaning of clause (b) of sub-section (I) of S.48 of the CPC." According to this, an order passed under the provisions of S.4 shall be deemed to be a "subsequent order" of court within the meaning of clause (b) of subsection (1) of S.48 of the CPC. He invited us to the language of Art.136 of the Limitation Act 1963 in the light of which the question of limitation had to be decided (there was no controversy on this point) which is as follows: While there can be little doubt that the Article gives a fresh start of limitation from the date of a subsequent order, the difficulty in the way of Counsel for the respondent is that S.6(2) of Act 31 of 1958 makes a fresh start available only for the limited purposes of S.48(1)(b) of the CPC. and not of Art.136 of the Limitation Act. Although this is so on the express language of S.6, we think, the reference to S.48(1)(b) of the CPC. must stand substituted by Art.135 of the Limitation Act. S.48(1)(b) of the CPC. was repealed by S.28 of the Limitation Act of 1963. It would be meaningless to read S.6(2) of Act 31 of 1958 which remained in force till its repeal by the Agriculturists Debt Relief Act of 1970, as referring to a provision of the CPC. which had been repealed in 1963. The principles or interpretation and the provisions of the General Clauses Act require that after the date of the 'repeal, the reference to S 48(1)(b) of the CPC. should be understood as reference to Art.136 of the Limitation Act. In that view, we would hold that a "subsequent order" under S.4 of Act 31 of 1958 would be a subsequent order within the meaning of Art.136 of the Limitation Act. 6. But is there such an order in this casee on this, the parties sum to be in controversy, and the matter has not been investigated. Counsel for the Respondent maintained that there was such an order in CMP. No. 626 of 1959 filed by the 10th defendant on 13-1-1959 in E. P. No. 560 of 1123 filed on 10-2-1958. Whether there was such an order in these or any other proceedings has to be investigated and found; and for that purpose a remand back to the execution court is unavoidable, despite the further prolongation of proceedings which have dragged their weary course long enough. 7. Whether there was such an order in these or any other proceedings has to be investigated and found; and for that purpose a remand back to the execution court is unavoidable, despite the further prolongation of proceedings which have dragged their weary course long enough. 7. Counsel for the appellant had invited our attention to the decision in Veeramony alias Veeraraghava Iyer v. Suppan Chettiar & Another (1963 (1) KLR 275) regarding the scope and content of the term "subsequent order" occurring in S.6 (2) of Act 31 of 1958. Counsel for the Respondent cited Edappilli Valla Raja v. Chacko (1958 KLT.1036). These may be borne in mind by the execution court to which we are remitting the matter. 8. We allow the appeal, set aside the judgment of the learned Single Judge and of the lower appellate court and remand the matter back to the execution court for fresh disposal after considering whether limitation would be saved by reason of any "subsequent order" as mentioned in S.6 (2) of Act 31 of 1958 as amended by Act 2 of 1961. There will be no order as to costs.