Tharkam Kojiniyakath Moidin Kutti v. K.s. Subramanya Iyer

This appeal raises a question of limitation which, so far as I am aware, is not covered by any express authority. The appellant is the judgment-debtor. The decree was dated 7th December 1923 and on 23rd December 1924 there was an order, passed at the instance of the decree-holder, recording satisfaction. The decree-holder subsequently made an application to the Court as a result of which on 24th August 1925, the order recording satisfaction was in part cancelled and the decree as an executable decree was revived. This modifying order was itself the subject of an appeal which was dismissed on 4th January 1927. Against this dismissal, there was a Second Appeal which was dismissed on 5th August 193

2. In the interval between the dismissal of the first appeal and the dismissal of the Second Appeal, an execution petition was filed on 3rd August 1927 and it was dismissed. The present execution petition was filed on 29th March 1934; that is to say, more than six years after the previous execution petition, but within two years of the dismissal of the Second Appeal against the order setting aside the record of satisfaction of the decree. Now, the question is whether this execution petition is within time having regard to the provisions of Art. 182 of the Limitation Act.

In the lower appellate Court, the matter was put on two grounds. Firstly that the application to modify the order recording satisfaction of the decree must be regarded as a step-in-aid of execution, so that the starting point for limitation will be the final appellate order passed on that application with reference to Cl. (5) of Art. 18

2. The other ground was that the decree must be regarded as under suspension during the period of the trial of the application to set aside the satisfaction order and the appeals therefrom. The learned Judge actually decided the matter on the basis that this application was a step-in-aid of execution. I find it very difficult to accede to this proposition. Granting that there are circumstances in which an application may be regarded as a step-in-aid of execution though not filed in a pending execution petition, as when the decree-holder applies for the transfer of a decree to another Court for execution, it is, to my mind, very difficult to regard an application as a step-in-aid of execution, when at the time of making this application, there is no executable decree. It seems to me that there can be no question of the execution of a decree which is not in being at the time of the application. It would not be proper to couple an application for execution along with the application to set aside the order of satisfaction, for until the decree had been restored to being, there would be nothing to execute, nor even any determination of the amount for which execution could issue.

I have been referred to two decisions [ Raj Gir Sahaya v. Iswardhari Singh (11 Cal. L.J. 243) and Ratanchand v. Chandulal (A.I.R. 1934 Bom. 113) [LQ/BomHC/1933/68] ] wherein it has been held that an application to reconstruct a lost decree is not a step-in-aid of execution. Still less, it seems to me, can we regard an application to revive a decree, which according to the record is finally satisfied, as a step-in-aid of execution of that decree which unless and until it is revived has no judicial existence.

The argument that the decree must be treated as having been suspended during the pendency of the application to set aside the satisfaction order and the appeals therefrom does not rest on any specific provision of the Limitation Act nor on any definite authority, but is only based on analogies from observations in cases arising out of very different facts. It seems to me quite clear that this decree was not suspended during the appeals from the order on this application and the fact that it was not suspended is shown by the filing of an execution petition while the Second Appeal was pending. Had this decree been in suspense so that no execution petition could be filed, it might be argued that limitation would not run. But in fact an execution petition was filed and the existence of the Second Appeal would not have been a valid objection to the executability of the decree in pursuance of that execution petition. It seems to me therefore that it cannot be contended that this decree was in suspense while these appeals were pending.

It has been suggested, however, that if this application cannot be regarded as a step-in-aid of an existing decree, it can be regarded as an application for the decree itself so that the provisions of Cl. (2) of Art. 182 would be directly applicable. This contention seems to me to have more basis in logic than those which have succeeded in the lower appellate Court. It is arguable as a matter of pure logic that when you are seeking to get a decree, you are not obliged to execute that decree until the scope and extent of that decree have been finally determined in appeal; by analogy, therefore, when you are seeking to revive a decree which has lost its judicial existence, you should not be required to execute that decree until the precise scope of its revival has been ascertained by a final order in appeal. Unfortunately for the respondent, however, questions of limitation cannot be determined by pure logic and any exception from the general rules laid down in the Schedules to the Limitation Act must be brought within the four walls of the statute. It is, I think, definitely established that Cl. (2) of Art. 182 has no application to appeals other than appeals against the decree itself. Its scope has been extended to cover an appeal against a preliminary decree in a mortgage suit when there is an executable final decree which is liable to be modified in the light of that appeal. But I am not aware of any authority for extending the scope of Art. 182 Cl. (2) to appeals from orders in collateral proceedings which may affect the decree to be executed. It has been definitely held that this clause does not apply to appeals from orders on an application to set aside the decree[Vide Rai Brijraj v. Naurath Lal (3 Pat. L.J. 119), Fakir Chand Mandal v. Daiba Charan Parni (54 Cal. 1052 [LQ/CalHC/1927/131] )] and from the very provisions of the Code itself it may be inferred that the principle of Cl. (2) has not been extended to appeals against an order in review of a judgment or appeals against an order amending a decree. In effect, the proceedings of which the respondent seeks to take advantage were more in the nature of an appeal against an order in review than anything else and I do not think there is any statutory provision whereby the person whose decree has been modified as a result of a review application against an order recording satisfaction can have the benefit, for purposes of limitation, of the period taken up by appeals against that order.

In the result, therefore, I allow the appeal and dismiss the E.P. No. 730 of 1934 with costs throughout.

(Leave to appeal is granted.)