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Case Number

C.R.P 1344 of 1977

Attorney(S)

Mr. N.S Varadachari for Petrs.
Mr. G. S. Selvatharasu for Respt.

Judges

Ismail, C.J

Acts

Section 20 of Tamil Nadu Act V of 1938, read with Tamil Nadu Act VIII of 1973.
Section 29(2) of the present Limitation Act XXXVI of 1963, Sections 4 to 24
SECTION 5 LIMITATION ACT
Section 19 in conjunction with Section 7
Section 29(2) of the Limitation Act, 1908,
1(S.N.), Section 5 of the Limitation Act
Section 29(2) of the Limitation Act.
Limitation Act, Section 5
Section 29(2), Section 5

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This is a civil revision petition against the order of the learned District Munsif, Sholinghur, dated 21st September 1974 in I.A. No. 324 of 1974 in O.S. No. 381 of 1971. The petitioners were the judgment-debtors in O.S. No. 381 of 1971. Execution proceedings in that suit had been stayed on 26th July 1973 under Section 20 of Tamil Nadu Act V of 1938, read with Tamil Nadu Act VIII of 1973. The proviso to Section 20 provides that where, within sixty days after a stay has been granted, the judgment-debtor does not apply to the Court which passed the decree for relief under Section 19 (or where an application has been made and rejected), the decree shall be executed as it stands.

The petitioners did not file their application under Section 19 within the sixty-day period. The Section 19 petition was filed on 25th September 1973 (one day late), supported by I.A. No. 324 of 1974 which sought to invoke Section 5 of the Limitation Act to excuse the one-day delay. The petitioners attributed the delay to a bona fide mistake by their counsel, who believed the period to be two months rather than sixty days. The learned District Munsif held that Section 5 of the Limitation Act could not be invoked in this situation and dismissed the interlocutory application; this civil revision petition challenges that dismissal.

Legal Issues Presented

Whether Section 5 of the Limitation Act applies to an application under Section 19 of Tamil Nadu Act V of 1938 where the proviso to Section 20 mentions a sixty-day period following the grant of a stay.
Whether the sixty-day provision in the proviso to Section 20 is a period of limitation (so that Section 5 could operate) or a condition precedent affecting only the executing Court's ability to proceed.
How Section 29(2) of the Limitation Act (and the distinction between local/special law and the Limitation Act) affects the applicability of Section 5 to proceedings under the local Act, and whether the fact that the proceeding is before a civil Court changes the analysis.

Arguments of the Parties

Petitioners' Arguments

The petitioners relied on a decision of N.S. Ramaswami, J. in Masilamani Chettiar v. Ramaswami Madaliar, in which it was held that Section 5 of the Limitation Act applies to similar cases; accordingly, the petitioners argued Section 5 should relieve them of the one-day delay.
The petitioners asserted a bona fide mistake by their counsel — that counsel believed the permitted period was two months rather than sixty days — as sufficient cause for the short delay, and therefore sought the court's relief under Section 5 of the Limitation Act.

Decree-Holder's Arguments (as presented in the opinion)

The decree-holder contended that the sixty-day period in the proviso to Section 20 is not a period of limitation but a condition precedent: if the judgment-debtor does not file within sixty days, the executing Court has no option but to execute the decree as it stands.
On that basis, the decree-holder argued that after expiry of the sixty days the Court which passed the decree cannot entertain an application under Section 19 and Section 5 of the Limitation Act therefore cannot be invoked to extend time.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Masilamani Chettiar v. Ramaswami Madaliar (N.S. Ramaswami, J.) (1975) 1 M.L.J. 1 (S.N.)	Held that Section 5 of the Limitation Act applies to such a case; reasoning invoked Section 29(2) (i.e., where local law prescribes a different period, certain sections of the Limitation Act apply unless expressly excluded).	The Court recorded that N.S. Ramaswami, J. held Section 5 would apply; the petitioners relied on this decision. The present Court noted this view but addressed subsequent Full Bench authority which took a different position on the operative effect of the proviso to Section 20.
Kumarasami Pillai v. Thiruvenkadatha Iyengar (Division Bench) (1939) 2 M.L.J. 308; 49 L.W. 762; A.I.R. 1939 Mad. 613	Interpreted Section 19 (in conjunction with Section 7) to indicate that ordinarily no period of limitation was fixed, but where Section 20's proviso applies there is a sixty-day period from the date the stay is granted.	The Court extracted and cited this Division Bench view. The learned Judge in the opinion observed he was bound by that Division Bench decision, but later considered a subsequent Full Bench decision that took a different view.
Bangaru Chettiar v. San Basha Sahib (Full Bench) (1976) 2 M.L.J. 171 : 89 L.W. 510 : A.I.R. 1977 Mad. 1	Held that the proviso to Section 20 should not be construed as prescribing a period of limitation for filing an application under Section 19; the proviso enables the executing Court to proceed after 60 days but does not take away the right of the judgment-debtor to apply under Section 19 thereafter.	The Court relied on this Full Bench decision as authoritative on the point. Applying its reasoning, the Court concluded that there is no prescribed period of limitation for an application under Section 19 and therefore Section 5 of the Limitation Act does not apply.
Sethurayar v. Karuppayammal (1945) 2 M.L.J. 533 : 58 L.W. 632 : A.I.R. 1948 Mad. 158	Was referred to as a decision that appeared to support the view that the proviso to Section 20 created a limitation-like effect (i.e., aligned with the older line of authority).	The Full Bench (Bangaru Chettiar) expressly considered this decision (and others) and declined to follow the view that the proviso eliminated the right to apply under Section 19 after sixty days; the present Court relied on the Full Bench's treatment of these earlier decisions.

Court's Reasoning and Analysis

The Court undertook a step-by-step analysis of (a) the interplay between the Limitation Act and the special/local Act (Tamil Nadu Act V of 1938), and (b) the content and effect of Section 19 and the proviso to Section 20 of the local Act.

First, the Court considered the approach in the Limitation Act (citing Section 29(2) of the Limitation Act XXXVI of 1963 and earlier formulations). Under that provision, where a special or local law prescribes a different period of limitation than the schedule to the Limitation Act, certain sections of the Limitation Act apply unless expressly excluded by the special or local law. The earlier reasoning (in the N.S. Ramaswami judgment) was that Section 5 would apply unless the local Act expressly excluded it; and because the present proceedings were before a civil Court, the difficulty of Section 5 being confined to Courts did not arise.

Second, the Court analysed whether the local Act in fact prescribes a different period of limitation for an application under Section 19. It observed that Section 19 itself contains no period of limitation and that Section 20 gives the judgment-debtor a right to apply to the executing Court for a stay. The sixty-day reference appears in the proviso to Section 20. The decree-holder argued that the sixty-day provision is a period of limitation (i.e., once sixty days pass the right to apply under Section 19 is extinguished); the petitioners (and an earlier judgment) took the opposite view.

The Court considered the precedent line, including a Division Bench decision (Kumarasami Pillai) that supported the view that there is a sixty-day period in the circumstances contemplated by Section 20, and the Full Bench decision in Bangaru Chettiar that expressly disagreed with construing the proviso as creating a period of limitation for filing under Section 19. The Full Bench explained the proviso as enabling the executing Court to proceed after sixty days but not as taking away the judgment-debtor's right to apply under Section 19; accordingly, the Full Bench concluded that no limitation is prescribed for an application under Section 19.

Applying the Full Bench ruling, the Court concluded that because Section 19 contains no prescribed period, Section 5 of the Limitation Act cannot apply. Section 5 presupposes the existence of a prescribed period that was not complied with; it permits courts to admit appeals or applications after the prescribed period if sufficient cause is shown. When no prescribed period exists at all, the conceptual predicate for Section 5 is absent and it is inapplicable.

On that basis the Court held that the learned District Munsif's dismissal of the petitioners' interlocutory application was correct, albeit on grounds different from those relied on by the District Munsif. The Court therefore dismissed the civil revision petition.

Holding and Implications

Holding: The civil revision petition is DISMISSED. The Court held that Section 5 of the Limitation Act has no application to an application under Section 19 of the special Act in the circumstances of this case because Section 19 prescribes no period of limitation; consequently the District Munsif's dismissal of the petitioners' interlocutory application was correct (though for different reasons than those stated by the District Munsif). There will be no order as to costs.

Implications:

Direct effect: The petitioners' challenge to the District Munsif's dismissal fails and the civil revision petition is dismissed; the interlocutory application remains dismissed and there is no order as to costs.
On broader implications: The Court applied and followed the Full Bench decision (Bangaru Chettiar v. San Basha Sahib) that the proviso to Section 20 does not operate as a statutory period of limitation for filing an application under Section 19. The opinion did not purport to create a new precedent beyond applying the Full Bench ruling; it concluded Section 5 could not be invoked where no prescribed period existed under the statute.

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Madurambal Ammal And Others v. T. Narasinga Rajan.

1. This is a petition to revise the order of the learned District Munsif, Sholinghur, dated 21st September, 1974 in I. A No. 324 of 1974 in O.S. No. 381 of 1971. The petitioners herein were the judgment-debtors in O.S. No. 381 of 1971. The execution proceedings were stayed on 26th July, 1973 under Section 20 of Tamil Nadu Act V of 1938, read with Tamil Nadu Act VIII of 1973. The proviso to Section 20 states:

Provided that where within sixty days after the application for stay has been granted the judgment-debtor does not apply to the Court which passed the decree for relief under Section 19 or where an application has been so made and is rejected, the decree shall be executed as it stands, not withstanding anything contained in this Act to the contrary.

On the basis of this proviso, the petition to amend the decree under Section 19 of the said Act should have been filed on or before 24th September, 1973. However, the petitioners filed the petition under Section 19 of the said Act only on 25th September, 1973 with I.A. No. 324 of 1974 purporting to have been filed under Section 5 of the Limitation Act, for excusing the delay of one day in filing the petition under Section 19. The case of the petitioners was that the counsel made a bona fide mistake in thinking that the period was not 60 days but two months and that was the reason why the petition was not filed on or before 24th September, 1973. It is in view of this only the petitioners filed the petition under Section 5 of the Limitation Act. The learned District Munsif held that Section 5 of the Limitation Act. could not be invoked by the petitioners herein and he, therefore, dismissed the interlocutory application. Hence, the present civil revision petition.

2. The learned Counsel for the petitioners contends that on the basis of the decision of N.S. Ramaswami, J., dated 10th October, 1974 made in Masilamani Chettiar v. Ramaswami Madaliar (1975) 1 M.L.J. 1(S.N.), Section 5 of the Limitation Act clearly applies and, therefore, the learned District Munsif was wrong in dismissing the application holding that Section 5 did not apply. It is true that N. S. Ramaswami, J., has held that Section 5 of the Limitation Act will apply to such a case. N.S. Ramaswami, J., in the said judgment has stated as follows:

Under Section 29(2) of the Limitation Act, 1908, where any special or local law prescribes a different period of limitation than what is prescribed in the First Schedule to the limitation act. section 5 and several other sections of the limitation act would have no application; but the provisions contained in Section 4, Sections 9 to 18 and Section 22 of the said Act, would apply unless the special or local law expressly excluded the operation of those sections. Now, under Section 29(2) of the present Limitation Act XXXVI of 1963, Sections 4 to 24 are made applicable (unless they are expressly excluded by the special or local law), in cases where the actual or local law prescribes a different period of limitation than what is prescribed in the schedule to the Limitation Act.

The question therefore, is whether in the present case, the special or local law (Act IV of 1938) has prescribed a different period of limitation as contemplated under Section 29(2) of the Limitation Act. Even if the Act (IV of 1938) prescribes a different period of limitation, there would be no scope for applying the provisions of Section 5 under the Limitation Act, 1908; but, under the present Limitation Act, Section 5 would be attracted unless the special or local law (Act IV of 1938) expressly excluded the operation of the said section in the limitation act. It is obvious that the Act does not expressly exclude the operation of Section 5 or any other section of the limitation act. Therefore the question would be whether for an application under Section 19 of the Act, a different period of limitation is prescribed by the Act. If it does Section 5 is attracted.

Of course, there is another aspect regarding the question whether Section 5 is applicable or not and that is, whether the proceedings are before a Court or are only before a statutory body, Section 5 specifically says that only a Court, if satisfied that the applicant had sufficient! cause for not preferring the appeal or making the application, as the case may be, within the period limited, can admit such appeal or application beyond the prescribed period. Therefore, even though under Section 29(2), Section 5 is attracted to a particular proceeding, unless the proceeding is before a Court, Section 5 cannot be invoked. But that difficulty does not arise in the present case because admittedly the proceeding is before a civil Court. Therefore, the question is whether under the Act a different period of limitation is prescribed for an application under Section 19.

Under Section 19 of the Act itself, no period of limitation is prescribed. An application for scaling down the debt under the said section can be filed by the judgment debtor at any time. Section 20 gives a right to the judgment-debtor to apply to the executing Court for stay of execution. It is the proviso to Section 20 that speaks of the 60 days period within which an application under Section 19 has to be made. The contention on behalf of the decree-holder is that the period of 60 days mentioned in the proviso to Section 20 of the Act is not a period of limitation but what is stated in the said proviso is a condition precedent. It is pointed out that under the said proviso, it is not stated that once stay has been obtained, the judgment debtor will have a period of 60 days for fling an application under Section 19 for scaling down but it is stated that if after obtaining the stay, the judgment-debtor does not file an application under Section 19 within sixty days or where an application has been made and the same is rejected, the decree shall be executed as it stands. It is contended that once the judgment-debtor fails to file the application under Section 19 within sixty days of the grant of stay, the executing Court has no option than to execute the decree as it stands and that there would be no scope for the Court which passed the decree to entertain an application under Section 19 after the expiry of the above-said period of sixty days. This contention is not correct.

After refering to a Division Bench decision of this Court in Kumarasami Pillai v Thiruvenkadatha Iyengar (1939) 2 M.L.J. 308 : 49 L.W. 762 ; 1939) Mad. 886; A.I.R. 1939 Mad. 613, after extracting a passage therefrom which stated:

Reading Section 19 in conjunction with Section 7 it would appear that the intention of the Legislature was to fix no period of limitation in ordinary circumstances. So long as a debt is enforceable, a debtor has a right to apply at any time for the scaling down of the debt, except in the circumstances contemplated by Section 20. In such circumstances there is a period of limitation and it is sixty days from the date on which the application for a stay is granted.

The learned Judge stated that he was bound to follow the Division Bench decision referred to above and, therefore, Section 5 of the Limitation Act applied to the case.

3. However, it has been brought to my notice that a subsequent Full Bench decision of this Court has taken a different view. That decision is Bangaru Chettiar v San Basha Sahib (1976)2 M.L.J. 171 : 89 L.W. 510 : A.I. R. 1977 Mad. 1. The said Full Bench Judgment expressly referred to the Division Bench decision in Kumarasami Pillai v. Thiruvengadatha Iyengar (1939) 2 M.L.J. 308, and another decision in Sethurayar v. Karuppayammal (1945) 2 M.L.J. 533 : 58 L.W. 632 : A.I.R. 1948 Mad. 158, and stated:

It is true the decisions referred to by the learned Counsel for appellant in Kumaraswami Pillai v. Thirwengadatha Iyengar (1939) 2 M.L.J. 308, and Sethurayar v. Karuppayammal (1945) 2 M.L.J. 533 : 58 L.W. 632 : A.I.R. 1948 Mad. 158 seem to support the respondent's stand. However, we are not inclined to agree with the view expressed in these cases that the proviso to Section 20 should be construed as providing a period of limitation for filing an application under Section 19...However, if these decisions are taken as laying down that the judgment-debtor has no right to file an application under Section 19 after the period of sixty days we are of the view that it is not the correct legal position. The proviso merely says that if the judgement-debtor does not apply to the Court which passed the decree under Section 20 for relief under Section 19 or where the application has been so made and rejected, the decree can be executed as it stands notwithstanding anything contained in the Act to the contrary. The proviso enables the executing Court to proceed with the execution of the decree as it stands if the judgment-debtor does not file an application under Section 20 within 60 days from the date he obtains an order under Section 19. The proviso does not say that the right of the judgment-debtor to file an application for relief under Section 19 is taken away or comes to an end. The proviso which dealt with the powers of the executing Court to execute the decree as it stands cannot be construed as curtailing the power of the Court which passed the decree to entertain and deal with an application under Section 19 by the judgment-debtor.

Thus according to the Full Bench judgment, there is no limitation prescribed for filing an application under Section 19 of the Act. If so, I am clearly of the view that Section 5 of the Limitation Act, has no application. Section 5 of (he Limitation Act, can apply only where a period has been prescribed for instituting the proceedings and the proceedings have not been actually instituted within the prescribed period and there was sufficient cause on the part of the party concerned for not instituting the proceedings within the prescribed period, however; when there is no specific period at all, the question of Section 5 applying to a case does not arise. Section 5 of the Limitation Act says-

Any appeal or any application, other than an application under any of the provision", of Order 21, Civil Procedure Code, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

4. It is the very basic postulate of Section 5 that there is a prescribed period for filing an appeal or an application and the party concerned did not file such an appeal or application within the prescribed period, but had sufficient cause for not doing so when there is no prescribed period at all. In terms, Section 3 will have no application whatever. On this short ground, I hold that the dismissal of the application filed by the petitioners herein by the learned District Munsif is correct, though for different reasons. Hence, the civil revision petition fails and is dismissed. There will be no order as to costs.

Madurambal Ammal And Others v. T. Narasinga Rajan.

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Decree-Holder's Arguments (as presented in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Madurambal Ammal And Others v. T. Narasinga Rajan.

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