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2004 DIGILAW 911 (SC)

Akkayanaicker v. A. A. A. Kotchadainaidu

2004-08-05

ASHOK BHAN, S.H.KAPADIA

body2004
ORDER : Ashok Bhan, J. The appellant decree-holder (hereinafter referred to as "the decree-holder") filed OS No. 322 of 1972 seeking a decree for a sum of Rs 18,912 along with interest @ 12% p.a. being the principal and interest due on the promissory note dated 3-6-1968 executed by the respondent judgment-debtors (hereinafter referred to as "the judgment-debtors"). The suit was decreed on 2-5-1973. 2. The decree-holder, therefore, filed Execution Petition No. 226 of 1973 but the same was closed because of the legislative intervention (Ordinance 1 of 1975). As per this Ordinance a bar was created to the filing of the suit for recovery of money against the agriculturists for a period of one year. Execution of a decree already obtained was also suspended for a period of one year. Later on the Ordinance was converted into an Act. 3. On 15-7-1978, the legislature of Tamil Nadu passed the Tamil Nadu Debt Relief Act, 1979 (Act 40 of 1979) for scaling down the debts obtained by the agriculturists including the decrees already passed. The judgment-debtors filed an application for scaling down of the decree dated 2-5-1973 in terms of Act 40 of 1979. The executing court scaled down the decree on 18-10-1979 in terms of Act 40 of 1979. 4. The decree-holder, thereafter, filed Execution Petition No. 412 of 1989. The judgment-debtors filed an application EA No. 399 of 1991 in EP No. 412 of 1989 stating therein that the execution petition filed by the decree-holder in the year 1989 was beyond the period of limitation, the same having been filed after 12 years from the date of the passing of original decree dated 2-5-1973. It was prayed that the proceeding in Execution Petition No. 412 of 1989 be terminated. The case of the decree-holder was that the execution petition was within time as the same had been filed within 12 years of the scaling down of the original decree and passing of the amended decree on 18-10-1979. The executing court did not accept the contention advanced by the judgment-debtors and dismissed EA No. 399 of 1991. The judgment-debtors being aggrieved against the order passed by the executing court filed CRP No. 3540 of 1992 in the High Court of Judicature at Tamil Nadu which was accepted. The High Court held that EP No. 412 of 1989 was beyond the period of limitation. The judgment-debtors being aggrieved against the order passed by the executing court filed CRP No. 3540 of 1992 in the High Court of Judicature at Tamil Nadu which was accepted. The High Court held that EP No. 412 of 1989 was beyond the period of limitation. That the limitation of 12 years for execution of the decree would start running from the date of passing of the original decree i.e. 2-5-1973 and not from the amended decree dated 18-10-1979. Aggrieved against the aforesaid order special leave petition was filed by the decree-holder in which the leave has been granted. 5. The appeal amount payable as per amended decree along with interest roughly comes to Rs 36,000. We have recommended to the counsel for the parties to advise their clients to settle the dispute amicably to avoid further litigation. Counsel for the parties have sought time to get instructions from their respective clients. 6. Adjourned to 1-9-2004. To be treated as part-heard.