Mohanambal Ammal v. Ramamoorthy — 1983 DIGILAW 586 (MAD)

Judgement ORDER :- This civil revision petition at the instance of the second defendant in O . S. No. 211 of 1964, District Munsif's Court, Trivellore, is directed against the order passed by the court below in E. P. 399 of 1979 holding that the execution petition is not barred by limitation. O.S. 211 of 1964 District Munsif's Court, Trivellore, was instituted by the first respondent herein against the petitioner and the second respondent herein who were impleaded as defendants 2 and 3 and another Bagyammal, who was impleaded as the first defendant therein, for the recovery of a sum of Rs. 3216.34, being the amount due on a promissory note dated 9-5-1951 executed by one Sanjeevi Naidu, father of the petitioner and the second respondent and the husband of Bagyammal. On 31-7-1965, the Additional District Munsif, Trivellore, dismissed that suit; but on appeal in A. S. 342 of 1965 District Court, Chingleput, the learned District Judge allowed the appeal on 5-2-1966. In the course of the judgment in A. S. 342 of 1965, the learned District Judge took note of the fact that the petitioner and the second respondent in their capacity as the legal representatives of Sanjeevi Naidu had obtained a decree in O.S. 109 of 1962, Sub Court, Chingleput, against one Rajaram Naidu and stated that the first respondent herein has, in the first instance, to proceed against the decree in O. S.109 of 1962, Sub Court, Chengalpattu, and if for any reason, he is not in a position to realise it, only then it will be open to the first respondent, to proceed against the assets of the deceased Sanjeevi Naidu in the hands of the petitioner and the second respon dent herein. The decree which was granted in favour of the first respondent was in these terms: (1) That the respondent-defendant (Bagyammal, the petitioner and the second respondent in the civil revision petition) do pay to the appellant-plaintiff (first respondent in the civil revision petition), Rs. The decree which was granted in favour of the first respondent was in these terms: (1) That the respondent-defendant (Bagyammal, the petitioner and the second respondent in the civil revision petition) do pay to the appellant-plaintiff (first respondent in the civil revision petition), Rs. 3421.34 with interest thereon at 5-1/2% per annum from this date to the date of realisation; (2) That in execution, if any, the plaintiff (first respondent in the civil revision petition) do in the first instance proceed against the decree in O.S. 109 of 1962 on the file of the Sub Court, Chingleput; (3) That if for any reason the plaintiff (first respondent in the civil revision petition) is not in a position to realise it, it will then only be open to him to proceed against the assets of the deceased in the hands of defendants 2 and 3; (4) That the second respondent (petitioner herein) do pay to the appellant (first respondent herein) Rs. 998.09 p. (Rs. 521.09 in appeal and Rs. 477 in suit) as costs in this appeal and do bear her own costs Rs. 460.24 p. (Rs. 240.99 p. in. appeal and Rs. 219.25 p. in suit). Aggrieved by the decree and judgment in A. S.342 of 1965, the petitioner herein preferred S. A. 1418 of 1966 to this court and on 21-11-1966, this court, while dismissing the second appeal even at the stage of admission, upheld the decree granted by the learned District Judge directing the plaintiff (first respondent herein to proceed against the mortgage decree in O.S. 109 of 1962 in the first instance. 2. On 22-9-1979, the first respondent herein filed E. P. 399 of 1979 in O.S. 211 of 1964, against the petitioner and the second respondent herein, praying for the attachment and sale of certain properties for the realisation of a sum of Rs. 7035.87 stated to be due under the decree in O.S. 211 of 1964. In the counter filed by the petitioner, she raised an objection that the execution petition is barred by time. 7035.87 stated to be due under the decree in O.S. 211 of 1964. In the counter filed by the petitioner, she raised an objection that the execution petition is barred by time. The executing Court, considering this objection raised by the petitioner, held that since the petitioner and the second respondent herein did not take any steps for the passing of a final decree in O. S. 109 of 1962, and had allowed the rights thereunder to be barred, the first respondent was not in a position to take steps to execute the decree as per the direction in the decree of the District Court in A. S. 342 of 1965 and therefore, the contention of the petitioner that the execution petition filed by the first respondent is barred by limitation is not acceptable. In this view, the objection raised by the petitioner was overruled and the properties were directed to be attached. It is the correctness of this order that is challenged in this civil revision petition. 3. The main contention urged by Mr. Bhavanantham, learned counsel for the petitioner in support of the civil revision petition is that the execution petition filed by the first respondent herein on 22-9-1979 to execute the decree in O. S. 211 of 1964 is barred under Art.136 of the Limitation Act 1963. According to the learned counsel, even taking into account the date of the decree for purposes of execution as 21-11-1966, when second appeal No. 1418 of 1966 was dismissed by this court, the E. P. having been filed on 22-9-1979 beyond 12 years from 21-11-1966 would be barred. In addition, the learned counsel for the petitioner contended that though under Cl. (2) of the decree in A.S. 342 of 1965, the first respondent was directed to proceed against the decree in O.S. 109 of 1962, Sub Court, Chengalpatti, and that only thereafter it would be open to him to proceed against the assets of deceased Sanjeevi Naidu in the hands of the petitioner and the second respondent, yet, that would not make any difference in so far as the executability of the decree as and from 21-11-1966 is concerned and that in spite of such a direction, the time for filing an E. P. would commence to run from the date of the decree, viz., 21-11-1966, and therefore, the application filed on 22-9-1979 would be barred. In support of this contention, the learned counsel for the petitioner relied upon the decisions in Swaminatha Odayar v. Thiagarajaswami Odayar, (1927) 52 Mad LJ 256 : (AIR 1926 Mad 954). Shuja-ul-mulk Bahadur v. Umir-Ul-Umra Bahadur, (1925) 49 Mad LJ 498 : (AIR 1926 Mad 20), Rajah Naidu v. Meenakshi Ammal, AIR 1949 Mad 285, Ram Gobind Rai v. Shahabad District Board, AIR 1976 Pat 118 , and Dakshinamurthy Pillai v. Vedamurthi Mudaliar, (1927) 53 Mad LJ 440 : (AIR 1927 Mad 842). On the other hand, the learned counsel for the first respondent submitted that at the time when the decree was passed in A. S. 342 of 1965, the decree was not executable against the petitioner and the second respondent and only after the first respondent realised that the rights of the petitioner and the second respondent with reference to the mortgage decree in O. S. 109 of 1962 Sub Court, Chengalpattu, became extinguished, the right to execute the decree against them arose, and, therefore, the application for execution flied on 22-9-1979 was well within time. Strong reliance was placed in this connection upon the decisions in H. Vydianatha Aiyar v. K. Subramanian Pattar, (1913) ILR 36 Mad 104 and Rameshwar Singh, Homeshwar Singh AIR 1921 PC 31. A faind attempt was also made by the learned counsel for the first respondent to contend that the petitioner and the second respondent are persons entitled to the benefits of the several enactments relating to Agriculturists Debt Relief and therefore, the first respondent was entitled to take advantage of the extend period owing to the embargo laid on obtaining of decrees and execution thereof against agriculturists entitled to the benefits of the enactments. 4. Whatever might have been the position with reference to the time limit within which applications for execution should be filed under the provisions of the Limitation Act 1908, it is not now in dispute that the present proceedings are governed by Art. 136 of the Limitation Act 1963. That Article runs as under: present proceedings are governed by Art. 136 of the Limitation Act 1963. That Article runs as under: "136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court. That Article runs as under: present proceedings are governed by Art. 136 of the Limitation Act 1963. That Article runs as under: "136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court. When the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place. Provided that an application for the enforcement of execution of a decree granting a perpetual injunction shall not be subject to any period of limitation." at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place. An execution, however, is made in the case of the enforcement or execution of a decree granting a perpetual period of limitation. The question is whether having regard to the terms of the decree passed in this case and set out earlier, the execution petition filed by the first respondent would be in time as per Art.136. In order to determine this question, it would be necessary to very briefly notice the circumstances which led to the institution of O.S.109 of 1962 Sub Court, Chengalpattu and the further proceedings therein. That suit was instituted by the father of the petitioner and the second respondent, Sanjeevi Naidu against one Rajaram Naidu for the recovery of a sum of Rs. 8,133.65 due on a deed of mortgage dated 17-11-1959 executed by Rajaram Naidu in favour of Sanjeevi Naidu. During the pendency of the suit, the petitioner and the second respondent herein were brought on record as his legal representatives and as plaintiffs 2 and 3 in that suit. On 14-8-1963, by means of a joint endorsement, a preliminary decree was passed by which the defendant in that suit was directed to pay a sum of Rs. 8,549.75 towards the principal, interest and costs and he was granted six months time for paying that amount. A further clause provided that in default of such payment, the defendant in O.S. 109 of 1962, Sub Court, Chengalpattu, did not make any payment within six months. 8,549.75 towards the principal, interest and costs and he was granted six months time for paying that amount. A further clause provided that in default of such payment, the defendant in O.S. 109 of 1962, Sub Court, Chengalpattu, did not make any payment within six months. On such non-payment, the petitioner and the second respondent should have, in the normal course, taken steps to secure a final decree and should also have brought to sale the mortgaged properties to realise the amounts due to them under the decree in O.S. 109 of 1962. That was also not done by the petitioner and the second respondent. It is this that is sought to be taken advantage of by the first respondent to claim that his execution petition, though filed on 22-9-1979 would nevertheless be in time. It is seen from clause (1) of the decree in A. S. 342 of 1965, which was affirmed by this court on 21-11-1966 in S. A. 1418 of 1966 that the petitioner, the second respondent and their mother Bagyammal have all been made liable to the first respondent for the payment of the amount of Rupees 3,421.34 with interest at 5-1/2% per annum from 5-2-1966 till the date of realisation. Considering the scope and effect of clause (1) of the decree, it is at once obvious that the liability of the petitioner, the second respondent and their mother Bagyammal is immediate and also enforceable with effect from the date of the decree viz. 5-2-1966 or at least from 21-11-1966 when the decree was affirmed in S. A. 1418 of 1966. Cl. (2) of the decree, no doubt, directed that the first respondent should in execution proceed in the first instance against the decree in O.S. 109 of 1962, Sub Court, Chengalpattu, and that if for some reason, he was not in a position to realise anything, only then, it will be open to him to proceed against the assets of deceased Sanjeevi Naidu in the hands of the petitioner and the second respondent. But this direction is not a direction with reference to the payment of money or delivery of any property to be made at a certain date or at recurring periods, as envisaged in column (3) of Art. 136 of the Limitation Act, 1963 so that the limitation for executing such a decree can be reckoned from the time when the default in making the payment or delivery in respect of which execution sought, takes place. The direction given in clauses (2) and (3) of the decree is only in the nature of an equitable one, but it does not have the effect of directing the enforcement or the execution of the decree as such from a future date on which payment or delivery of property should have been done, but not done., Clauses (1) to (3) of the decree, examined in the light of the language employed in column (3) of Art.136 of the Limitation Act, 1963 clearly show that in this case, the decree was executable on and from 21-11-1966 and not from some other or future date, when the first respondent was unable to realise anything from out of the decree obtained by the petitioner and the second respondent in O. S. 102 of 1962 Sub Court, Chengalpattu. 5. The inability of the first respondent to secure the fruits of the decree in O.S. 109 of 1962 Sub Court, Chengalpattu obtained by the petitioner and the second respondent against Rajaram Naidu cannot therefore be reckoned as the starting point for purposes of computing the limitation in filing the execution petition. Considering the scope and effect of the clauses in the decree sought to be executed in this case, it is manifest that time would start running as per column (3) of Art. 136 of the Limitation Act 1963, with effect from 21-11-1966 with the result that the execution petition filed on 22-9-1979 would be clearly barred, not having been filed within 12 years from 22-11-1966. 6. Even assuming that the first respondent was entitled to wait till he realised that he could not secure any benefit out of the decree obtained by the petitioner and the second respondent in O.S. 109 of 1962, Sub Court, Chengalpattu, it does not in any manner alter the position. 6. Even assuming that the first respondent was entitled to wait till he realised that he could not secure any benefit out of the decree obtained by the petitioner and the second respondent in O.S. 109 of 1962, Sub Court, Chengalpattu, it does not in any manner alter the position. Earlier, it has been seen that in O.S. 109 of 1962, a preliminary decree was passed on 14-8-1963, granting six months time to Rajaram Naidu to pay the amount. Admittedly, Rajaram Naidu , who ought to have paid certain amounts in accordance with the preliminary decree in O.S. 109 of 1962, Sub Court, Chengalpattu, on or before 14-2-1964 (within six months after 14-8-1963) did not make any payment and upon such default committed by him, the petitioner and the second respondent therein should have immediately taken steps for the filing of an application for obtaining a final decree in order that the hypotheca may be brought to sale for the realisation of the amounts due under O.S. 109 of 1962. Under Art.137 of the Limitation Act 1963, a period of three years would be available to the petitioner and the second respondent to make such an application and the petitioner and the second respondent lost their right to obtain a final decree on the expiry of 3 years from 14-2-1964 i.e. 14-3-1967. Even on the footing that 12 years period for the execution of the decree by the first respondent should be computed from the date on which the petitioner and the second respondent could not obtain any relief in O.S. 109 of 1962 Sub Court, Chengalpattu, the first respondent ought to have filed the execution petition on or before 14-2-1979. As seen already, the execution petition in this case was filed only on 22-9-1979 and was therefore obviously out of time. Therefore, looked at from any point of view, in the light of the third column of Art. 136 of the Limitation Act 1963, the execution petition filed by the first respondent herein was hopelessly out of time. In this view, it is unnecessary to consider the decisions relied on by either side. The Court below was, therefore, in error in having concluded that the application would be in time. 7. In this view, it is unnecessary to consider the decisions relied on by either side. The Court below was, therefore, in error in having concluded that the application would be in time. 7. Though the learned counsel for the first respondent attempted to state that the petitioner and the second respondent were persons entitled to the benefits of the Agriculturists Debt Relief Acts and therefore, the first respondent was entitled to avail himself of the extended period of limitation, yet, he was unable to place before court any material to that effect. In the absence of any materials in support of such a claim made by the first respondent, he cannot be permitted to contend that the petitioner and the second respondent are persons who are agriculturists entitled to the benefits of the Agriculturists Debt Relief legislations and therefore, the execution petition would be in time. The result is the order of the court below is set aside and the civil revision petition is allowed. There will be, however, no order as to costs.