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1996 DIGILAW 1175 (MAD)

Muthuswamy Pillai v. Kootharasu

1996-11-19

S.S.SUBRAMANI

body1996
Judgment :- 1. Decree-holders in O.S. No. 64 of 1969 on the file of Subordinate Judges Court, Thanjavur, and transferred for execution before the Subordinate Judge, Pattukottai, are the revision petitioners. 2. Decree was granted in favour of plaintiffs whereby title over the property was declared, and the defendants were directed to put the plaintiffs in possession of the suit property. The decree is dated 27.4.1970. 3. Defendants, aggrieved by the judgement, filed an appeal before this Court as A.S. No. 613 of 1970. He also filed C.M.P. No. 12049 of 1970, to stay execution of the decree. As per order dated 20.12.1971, stay already granted was made absolute. It is seen that the defendant i.e. , the appellant before this Court died on 4.9.1975, which fact was not brought to the notice of this Court. The appeal was posted for payment of printing charges, and since there was default in payment, appeal itself was dismissed on 29.4.1976. 4. Execution Petition was filed before Sub Court, Thanjavur, on 15.10.1987. There were some defects in the Execution Petition, and after rectifying the defects, it was taken to file. Court wanted to know why the Execution Petition was filed before that Court when the property is situated within the jurisdiction of Sub Court. Pattukottai. A request was made by the decree-holder that the decree may be transmitted to Sub-Court, Pattukottai for further steps in execution, for adding legal representatives of plaintiff and defendant. The Court ordered Rule 22 Notice on the Execution Petition on 9.12.1987, and the notic was directed to be returned by 11-1-1988. Finally, on 9-8-1988 after hearing, Sub Court, Thanjavur, directed transfer of the Execution Petition to Sub Court, Pattukkottai, with an observation that the question of limitation will be considered at that time. 5. After the decree was transferred to Sub-Court, Pattukkottai, a reminder Execution Petition was filed making mention of the transfer and certificate of non-satisfaction as E.P. No. 51 of 1988, for recovery of the property. In the same E.P., there was another prayer for recovery of costs allowed in the decree. 6. Serious objections were taken to the Execution Petition by respondents herein. Of them, the main contention was that the Execution Petition is barred by limitation, i.e. , it is beyond 12 years from the date of decree and, therefore, the decree has become unenforceable. 6. Serious objections were taken to the Execution Petition by respondents herein. Of them, the main contention was that the Execution Petition is barred by limitation, i.e. , it is beyond 12 years from the date of decree and, therefore, the decree has become unenforceable. It is further said that the judgement in A.S. No. 613 of 1970 is void and it is a nullity since the judgement was pronounced in the appeal at the time when the appellant was died and therefore, it is not binding on the estate of the deceased or his legal representatives. It is further said that since the judgement of the High Court has to be ignored for all purposes, the executable decree is only that of the Sub Court. Admittedly, the Execution Petition filed in 1987 is long after 12 years and, therefore it cannot be executed. 7. By the impugned order, court below said that the decree holder is not entitled to recover possession of the property and by another order, it further declared that the plaintiff is also not entitled to recover costs of the decree. It is against these Orders, these Revisions are filed. 8. The reason for dismissal of the Execution Petition is that the judgment in A.S. No. 613 of 1970 is a nullity. The finding is that the decision is arrived against a dead person, which is not valid in law and the remedy of the person is only to have the decision set aside, and to file an application to implead the legal representatives and thereafter the Appeal has to be disposed of. The Executing Court was of the view that even though an Order was passed by this Court that Appeal was dismissed, it cannot be treated as disposal of the Appeal. The reasoning of the Executing Court is seriously challenged by learned Counsel for the petitioners. 9. Under the old Limitation Act, 1908, Art. 182 governed the rights of parties. That Article thus:— For the execution of the decree or order of any Civil Court not provided for by Article 183 or by Section 48 of the Code of Civil Procedure, 1908. Three years or where a certified copy of a decree or order has been registered, six years. 1. The date of the decree or order, or 2. That Article thus:— For the execution of the decree or order of any Civil Court not provided for by Article 183 or by Section 48 of the Code of Civil Procedure, 1908. Three years or where a certified copy of a decree or order has been registered, six years. 1. The date of the decree or order, or 2. (Where there has been an appeal) the date of the final decree or order of the Appellate Court or the withdrawal of the appeal or.(rest omitted). Under the new Limitation Act, Article 136 provides for execution of the decree. The same reads thus:— For the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court Twelve years 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 of delivery in respect of which execution is sought takes place: (Proviso omitted) Why I am incorporating both old and New Article is, no decided cases under the new Act were brought to my notice. But, we have to take note of the reasoning of the various judgments under the old Act to consider how far the same applies to cases under the new Limitation Act. 10. I will first consider the Case-Law under the old Act. 11. In AIR 1933 Privy Council 68 =37 L.W. 296(Abdulla Asghar Ali and others v. Ganesh Das Vig ), their Lordships said thus:— “When an order is judicially made by an Appellate Court which has the effect of finally disposing of an appeal, such an order gives a new starting point for the period of limitation prescribed by Art. 182 (2)” In that case, their Lordships considered the effect of an Appeal which was subsequently dismissed either for default or for non-prosecution. In the case, the party had died and in fact the matter was abated. The abatement was not taken note of by Court, nor was it brought to the notice of Court. Without taking note of the death, the Court disposed of the Appeal. It was under those circumstances, their Lordships held as extracted earlier. 12. In the case, the party had died and in fact the matter was abated. The abatement was not taken note of by Court, nor was it brought to the notice of Court. Without taking note of the death, the Court disposed of the Appeal. It was under those circumstances, their Lordships held as extracted earlier. 12. In A.I.R. 1927 Calcutta 760 (Gohur Bepari v. Ram Krishna Saba and others ) also, the case was regarding death pending appeal and there was no substitution in his place. But subsequently the Appeal was declared as abated, though the death was long before that. The question was, whether the limitation runs from the date of death or from the date of the final order when the Appeal was declared as abated. A Bench of the Calcutta High Court held thus:— “Plaintiff R instituted a suit and obtained a decree against G on 29th March 1922. G preferred an appeal. During the pendency of the appeal R, the plaintiff died. No substitution was made in his place and on 21st May 1925, order declaring the abatement of the appeal was passed: Held: That time began to run for executing from 21st May, 1925, and not from 29th March 1922”, 13. In A.I.R. 1941 Madras 671 (N. Kunjithapatham Pillai v. Saraswathi Ammal and others), a Division Bench of this Court held thus:— “An order stating that an appeal has abated comes within the purview of Art. 182(2) and time runs from the date of such order for the execution of the decree.” 14. In A.I.R. 1941 Allahabad 371 ( L. Murli Dhar and others v. Mahabir Singh ), also, a similar view was taken and it was held thus:— “An order declaring an appeal to have abated on the ground that the heirs of the deceased party were not brought on record is a final order within the meaning of Art. 182 and limitation runs from the date of that order and not from the date of the decree under appeal”. 15. 15. In A.I.R. 1947 Allahabad 390 ( Ajudhia Prasad v. The U.P. Government ) also, a Division Bench held thus:— “An order declaring an appeal to have abated is in effect an affirmation of the decree of the Court below and amounts to a final order within the meaning of Art. 182 and therefore limitation begins to run against the decree-holder from the date of such order and not from the date of the decree under appeal”. 16. Our High Court had occasion to consider a similar question, and the decision is reported in 1965-II-M.L.J. 265=78 L.W. 489 ( Ramachandra Chetty v. C. Mothaliyandan Chettiar ). That was in execution of a decree under the Rent Control Act. Against the Order of eviction, tenant filed a Revision. Pending Revision, he died. Even at the time of filing the Revision, the tenant had obtained an order of stay. Without knowledge of his death, the Revision Petition was allowed to be dismissed for nonprosecution, and, long after his death, the Civil Revision Petition was dismissed. Execution was taken and a contention was raised that the order in C.R.P. is not valid, and the same is al so barred by limitation. The contention was that there cannot be any merger when the C.R.P. gets abated. It was further held that the Order in the Revision Petition cannot be taken into consideration for the purpose of computing limitation. While considering the same, a learned Judge of this Court held thus:— “Learned counsel for the petitioner first contended that the application for execution was barred by limitation on the ground that the three years time to execute the decree would commence to run even from November, 1960 after the expiry of one month from the date of death of the tenant in October, 1960. He urges that as soon as the one month period had expired after the death of the tenant without his legal representatives having been brought on record, the revision proceedings must be deemed to have terminated and limitation would commence from that date. I see no force in this contention. He urges that as soon as the one month period had expired after the death of the tenant without his legal representatives having been brought on record, the revision proceedings must be deemed to have terminated and limitation would commence from that date. I see no force in this contention. It is enough to refer to the statement of the law in Rustomji on Limitation, Sixth Edition at page 1046, where the learned author deals with the scope of Article 168(2) which provides a fresh starting point of limitation for the execution of the decree calculated from the date of the final decree or order of the Appellate Court passed on the appeal. Learned author has referred to the decision of the Privy Council in Hussain Asgher v. Ramditta, from which it is clear that even though an appeal has abated limitation would commence to run not from the time when the appeal abates by mere lapse of time for failure to bring on record the legal representatives, but only from the date when the Court passed the formal order dismissing the appeal after declaring the appeal as having abated. In this case the order which has been passed is one on the merits a dismissal of the Revision Petition. It may be that this order may not be binding on the legal representatives provided they take necessary proceedings to set aside that order on the ground that at that time the tenant was dead. But so long as that has not been done, the order has got to be regarded as a decision on the merits and limitation would commence to run only from 31st August 1962”. The above are some of the case-laws under the old Limitation Act. 17. Learned counsel on both sides were not in a position to cite any case-law decided under the new Limitation Act. 18. In U.N. Mitras ‘Law of Limitation and Prescription’ 10th Edition (1992) Volume 2, at page 1949 learned Author says thus:— “Despite the difference in the language of the third column of the present Article 136 from that of the former Article 182 the decisions rendered under the latter provision may still be helpful in elucidating the scope of the words ‘when the decree or order becomes enforceable”. The learned Author further says at page 1950 thus:— “It is but reasonable that where the law allows an appeal from the decree or order which is sought to be executed and an appeal has been actually preferred against such decree or order, the date of the final decree or order of the Appellate Court should be the point from which limitation runs. Every order of the Appellate Court dismissing an appeal which has been properly presented to the proper Court or putting an end to the appeal in any way has been held to come within this principle although it may be that in many cases such an order is not an order of which execution could be sought. It is not necessary that the appeal should be ‘admitted’. If an appeal has been presented limitation begins to run from the date of the final decree or order of the Appellate Court even if such appeal is rejected on the ground that it is barred by limitation. It is well-settled that where there has been an appeal from the original decree time for the execution of such decree has to be computed from the date of the appellate decree. The fact that such decree is one of affirmance of the original decree does not affect the principle.. .. ..” 19. While stating the facts, I have already stated that the defendant, after filing an appeal, also Obtained stay of execution. The execution was stayed after hearing both parties. With noting his death, the appeal was dismissed on 29.4.1976. on which date the stay also got vacated. If the period of 12 years is calculated from that date, the Execution Petition is within time. If we take into account the principles enunciated under the old Limitation Act, it is not the date of the death of the defendant, but it is the date of the order dismissing the appeal, which has to be taken into consideration. 20. Learned counsel for the respondents submitted that the wording under the new Statute is different. Under the new Limitation Act, limitation starts when the decree or the order becomes enforceable. The submission is that when a judgment is passed against a dead person, the same is a nullity and it has no legal existance. If so, limitation will have to start from the date of trial court decree. Such argument cannot hold good. Under the new Limitation Act, limitation starts when the decree or the order becomes enforceable. The submission is that when a judgment is passed against a dead person, the same is a nullity and it has no legal existance. If so, limitation will have to start from the date of trial court decree. Such argument cannot hold good. As I have said, the defendant himself obtained stay of execution of the decree and the same was in force till the appeal was dismissed. 21. Even if we do not take the date of the judgment in the first appeal, atleast when the Appeal got abated, the stay order was in force. The defendant died on 4.9.1975. Under Article 120 of the Limitation Act, three months period is provided to have the legal representatives impleaded, On expiry of the 90th day, the appeal gets abated. So, for all practical purposes, till 4.12.1975, the appeal was deemed pending. If the petitioner takes no steps on or before 4-12-1975, stay petition also automatically becomes infructuous on that day in view of abatement. So, till 4.12.1975, the decree-holder himself was prevented from executing the decree. It becomes enforceable only thereafter, The Execution Petition was filed on 15.10 1987 before the Subordinate Judges Court, Thanjavur, and later it was transferred to Sub Court. Pattukottai, If the period of 12 years is calculated from the date of abatement, even then it cannot be said that the Execution Petition is barred by time. According to me, on the principle enunciated by the learned Author, at page 1949, till a final order is passed in the Appeal the decree-holder is entitled to wait and the limitation can be computed only from the date of dismissal of the appeal. By declaring the Appeal as abated, it amounts to affirmation of the trial Court decree. As held in AIR 1947 Allahabad 390(supra) an order declaring an appeal to have abated is in effect an affirmation of decree of the trial court. If it is to be construed as an affirmation of the trial court decre e, even under the present law, limitation is to start only from the date of such affirmation. Learned Author, in the ‘Law of Limitation and Prescription’ referred to supra, has relied on various decisions and the passage which I have extracted earlier is based on those decisions. 22. Learned Author, in the ‘Law of Limitation and Prescription’ referred to supra, has relied on various decisions and the passage which I have extracted earlier is based on those decisions. 22. Even though it is not a question of execution, the Supreme Court had occasion to consider a similar question in the said decision reported in AIR 1990 SC 10 ( S.S. Rathore v. State of Madhya Pradesh ). In that case, disciplinary proceedings were initiated against a Government servant and he was dismissed from service. He took the matter in Appeal, and the Appeal was also dismissed. The question was to challenge that order by filing a suit, whether the period of limitation has to be calculated from the date of Appellate Order which only affirmed the earlier decision or whether limitation started from the date of first order itself. In that decision, their Lordships overruled an earlier decision of that Court reported in AIR 1958 SC 868 (C.I.T. v. Amritlal Bhagilal & Co. ), and approved the decision reported in AIR 1963 SC 1124 ( Collector of Customs, Calcutta v. East India Commercial Co. Ltd.) and also extracted the relevant passage from AIR 1963 SC 1124 , which reads thus:— “The question therefore turns on whether the order of the original authority becomes merged in the order of the Appellate Authority even where the Appellate Authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious that when an appeal is made the Appellate Authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the Appellate Authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. The question therefore is whether there is any difference between these two cases and the third case where the Appellate Authority dismisses the appeal and thus confirms the order of the original authority. The question therefore is whether there is any difference between these two cases and the third case where the Appellate Authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the Appellate Authority and the third kind of order passed by it. In all these three cases after the Appellate Authority has disposed of the appeal, the operative order is the order of the Appellate Authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification”. (Emphasis Supplied) Though it was a matter where their Lordships were interpreting ‘what is cause of action’ and ‘when does it arise’, I feel that the same could be applied in executing a decree as to when it became enforceable. 23. By dismissing the appeal, the Appellate Court only affirms the trial Court decree, and the decree becomes enforceable from that date. 24. Even if the appeal abates earlier on 4.12.1975 or if the limitation is computed from the date of judgment of the appeal, the Execution Petition is filed within 12 years. 25. The Executing Court has not considered any of these aspects. It only says that the judgement in the appeal is a nullity. Whether the decree-holder was entitled to execute the decree even when there was stay, was never considered by the Executing Court. 26. The reasons stated by the Executing Court cannot be accepted. The relevant law has not been applied. The relevant law has not been applied. The order of the Executing Court is therefore liable to be set aside. 27. In the result, both the Revisions are allowed. The Executing Court is directed to restore the Execution Petition to its file and proceed with the same in accordance with law. The relevant law has not been applied. The relevant law has not been applied. The order of the Executing Court is therefore liable to be set aside. 27. In the result, both the Revisions are allowed. The Executing Court is directed to restore the Execution Petition to its file and proceed with the same in accordance with law. Being an old Execution Petition of the year 1987, in a suit filed in the year 1970, I am sure, the Executing Court will expedite the proceedings, and the decree-holders will be given the opportunity of enjoying the fruits of the decree, i.e. , by putting them in possession and also allowing them to recover the costs for which the Execution Petition was filed, without any further delay. In both the Civil Revision Petitions, the decree-holders are allowed their costs.