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Andhra High Court · body

2001 DIGILAW 947 (AP)

Munaswami v. K. Mallikarjuna

2001-08-29

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) THIS civil revision petition is filed by the revision petitioner-judgment- debtor in OEP No. 62/98 in OS No. 204/81 on the file of Junior Civil Judge, Palamner. ( 2 ) THE respondent herein, the decree- holder in the said E. P. tiled seeking arrest of the judgment-debtor and to commit him to civil prison in case of non-payment of decretal amount. For the purpose of convenience the parties will be referred to as decree-holder and judgment-debtor. ( 3 ) THE facts in nutshell are that the decree-holder filed OEP No. 62/98 in OS no. 204/81 on the file of Junior Civil Judge, palamner seeking the arrest and detention of the judgment-debtor for non-payment of decretal amount and in the affidavit filed in support of the EP the facts relating to the means of the Judgment-debtor had been furnished and the judgment-debtor filed a counter contending that he is a very old man and he has no means to pay the decretal debt and also had taken a stand that the decree in question is dated 6-4-1982 and the ep is filed on 15-6-1998 which is clearly beyond the period of limitation. PWs. 1 and 2 were examined on behalf of the Decree- holder and judgment-debtor had examined himself as RW1 and Ex. Pl certified copy of the decree in AS No. 180/86 against IP No. 1/82 on the file of Additional Subordinate judge, Chittoor, was marked. On appreciation of the oral and documentary evidence, the court below had arrived at a conclusion that the judgment-debtor is having means to pay the decretal amount and in view of Section 78 (2) of the Provincial Insolvency Act, the ep filed by the decree-holder is within the period of limitation and had directed the issuance of arrest warrant. The judgment-debtor, aggrieved by the same, had filed the present civil revision petition raising several grounds, the most important being the question of limitation. The judgment-debtor, aggrieved by the same, had filed the present civil revision petition raising several grounds, the most important being the question of limitation. ( 4 ) SRI P. V. Vidyasagar, the learned counsel representing the revision petitioner-judgment-debtor had drawn my attention to the relevant portions of the order of the court below i. e. , paragraphs 8, 9 and 10 and had contended that the Court below had totally erred in holding that the E. P. is within the period of limitation since Section 78 (2) of the Provincial Insolvency Act is not applicable at all to the present case. The learned Counsel also had placed reliance on kalyanasundaram Pillai v. Vaithilinga vanniar, AIR 1939 Mad. 270 and chaturvedula Venkata Lakshminarasimham and another v. Sha Ven Venktaji and Co. , air 1949 Mad. 363. The learned Counsel also had drawn my attention to Sections 10, 25, 27, 29 and also Section 78 (2) of the provincial Insolvency Act and had made elaborate submissions relating to the scope and ambit of these provisions and how in the present matter the limitation cannot be saved even by virtue of Ex. P1. The learned counsel also had commented about the evidence of PWs. 1 and 2 and the evidence relating to the means of the judgment-debtor, recorded by the Court below. ( 5 ) SRI T. C. Krishnan the learned counsel representing the respondent-decree-holder had seriously contended that the judgment-debtor himself had invoked the insolvency jurisdiction and the matter was pending in Appeal AS No. 180/86 on the file of Additional Subordinate Judge. Chittoor which was disposed of on 22-4-1993 and hence the E. P. is within the period of limitation and the learned Counsel also further contended that on the ground of equity, the judgment-debtor cannot take advantage of his own act by virtue of which the Decree-holder cannot proceed with the execution and contend that the E. P. is barred by limitation. ( 6 ) HEARD both the Counsel. The important question that falls for consideration in the present revision is the question of limitation. The other aspects of the matter, of appreciation of evidence and the finding relating to the means of the judgment-debtor etc. , will depend upon the decision on this first question of limitation. Column No. 4 in EP No. 62/98 simply specifies "i. P. filed by the J. Dr. The other aspects of the matter, of appreciation of evidence and the finding relating to the means of the judgment-debtor etc. , will depend upon the decision on this first question of limitation. Column No. 4 in EP No. 62/98 simply specifies "i. P. filed by the J. Dr. under l. P. 1/82, Additional Sub-Judge, Chittoor, disposed on 23-10-1984. Appeal filed a. S. No. 180/86 D. J. Chittoor Disposed on 22-4-1993. Hence the E. P. is with in time". This is the ground on which the Decree- holder contends that the E. P. is within time. Otherwise, it is not in dispute that the decree is dated 6-4-1982 and the E. P. is filed on 15-6-1998 which is beyond the period of limitation. Article 136 of the Limitation act, 1963 reads as follows: description of Application period of limitation time from which period begins to run for the execution of any decree (other than decree granting a mandatory injunction) or order of any civil Court twelve years where 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; provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation. The Court below had arrived at the conclusion that the E. P. is within the period of limitation placing reliance of Section 78 (2) of the Provincial Insolvency Act, 1920. The said provision reads as follows:- "where an order of adjudication has been annulled under this Act, in computing the period of limitation prescribed for any suit or application for the execution of a decree or (other than a suit or application in respect of which the leave of the Court was obtained under sub-section (2) of Section 28) which might have been brought or made but for the making of an order of adjudication under this Act, the period from the date of the order of adjudication to the date of order of annulment shall be excluded: provided that nothing in this section shall apply to a suit or application in respect of a debt provable but not proved under this act. In the said provision, the words "where an order of adjudication has been annulled under this Act. . . . . . . " are very relevant for the present purpose. For invoking Section 78 (2), the ingredients specified therein are to be satisfied and unless those conditions are satisfied it cannot be said that the running of period of limitation is stopped in any way. Even a prima-facie reading of the provision clearly shows that it is not applicable to the facts of the present case and hence I have no hesitation to hold that the period of limitation in the present case is not saved by virtue of Section 78 (2) of the Provincial insolvency Act, 1920. However, this is not the end of the matter. Both from Ex. P-1 and also the E. P. filed by the Decree-holder it is not clear whether there was any interim order either in the nature of injunction or stay by virtue of which the Decree-holder was prevented from proceeding with the execution during the pendency of the insolvency proceedings in the original Court and also the appellate Court. Unless this aspect of the matter is also adverted to, it may not be possible to decide the question of limitation. It may be relevant to look into Section 15 of the Limitation Act 1963 in this regard. Exclusion of time in certain other cases.- (1) In computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or Order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. (2) In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or as the case may be, the time required for obtaining such consent or sanction shall be excluded. Explanation :in excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be counted. (3) In computing the period of limitation for any suit or application for execution of decree by any receiver or interim receiver appointed in proceedings for the adjudication of a person as an insolvent or by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company, the period beginning with the date of institution of such proceeding and ending with the expiry of three months from the date of appointment of such receiver or liquidator, as the case may be, shall be excluded. (4) In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded. (5) In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the authorities outside India under the administration of the Central Government, shall be excluded. In the light of the foregoing provisions, it is for the Decree-holder now to explain how he is entitled to invoke the benefit of exclusion of time under Section 15 of the limitation Act, 1963. Unless the Decree- holder is able to satisfy the Court on the question of limitation it may not be necessary to go into the other questions involved. Hence, I deem it fit in the facts and circumstances of the case to direct the Court below to decide the question of limitation in the light of Section 15 of the Limitation act, 1963 first and in the event of the Court satisfying itself on the question of limitation and if the Court below feels that the E. P. is within the period of limitation, then the court below is at liberty to decide further the other aspects involved in the E. P. even by giving further opportunity to both the parties to let in any further evidence, if any, for the purpose of substantiating their respective contentions. ( 7 ) FOR the reasons stated supra, the civil revision petition is allowed to the extent indicated above and the matter is remitted back with a direction to the Court below to dispose of the matter in the light of the directions specified supra, as expeditiously as possible and at any rate within a period of four months from the date of receipt of a copy of this order.