Citation Codes

Equivalent Citations

citation codes

Case Number

Letters Patent Appeal No. 106 of 1924

Judges

Devadoss
Waller, JJ.

Acts

Article 178 of the old Limitation Act corresponding to Article 181 of the present Act.
Article 179 of Schedule II to the Limitation Act.
Article 182 of the Limitation Act
Order XXI, Rule 57

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Smart Summary

Structured Summary of the Opinion (M.D. Devadoss, J.)

Factual and Procedural Background

The respondents obtained a decree in O.S. No. 77 of 1903 on 28 September 1903. An execution application (R.E.P. No. 323 of 1915) was filed on 11 March 1915; it was admitted that this 1915 application was within time. The executing Court ordered delivery of the properties to the decree-holders on 21 July 1915. Third parties objected; the objection was removed, and item No. 3 was delivered to the petitioners on 27 March 1916, with an order recording that the third item was delivered and the petition was recorded.

Obstructors filed a suit and obtained a temporary injunction against delivery of item No. 2; that suit was ultimately dismissed on 10 December 1916, after which the temporary injunction ceased to operate. A subsequent execution application was filed on 3 September 1921 praying for delivery of item No. 2 from the 10th defendant. Both lower courts dismissed the 1921 application as barred by limitation. A decision in Puttayya v. Puttanayya (A.I.R. 1925 Mad. 152) was held to support that the application was within time, giving rise to the present appeal by the 10th defendant.

Legal Issues Presented

Whether the decree-holder's execution application (the 1921 application) is barred by limitation, given the pendency/status of the earlier 1915 execution application.
Whether the order of the executing Court in 1916 (recording delivery of item No. 3 and "recording" the petition) amounted to a dismissal of the 1915 application, thereby triggering limitation consequences.
Whether the decree is a joint or several decree for purposes of limitation, and consequently whether earlier execution applications (1918 and 1920) against the 9th defendant preserve the right to execute against the 10th defendant.

Arguments of the Parties

Appellant's Arguments (as presented in the opinion)

The 1921 application, filed nearly six years after the 1915 application, is barred by limitation.
If the 1921 application is to be treated as an application to record or revive the 1915 execution application, it should have been filed within three years of 18 December 1910 (the date asserted in argument as the removal of the obstruction to execution), and therefore is out of time.
The decree is not a joint decree: because the decree directs the 9th and 10th defendants to pay mesne profits severally, the decree is several (not joint), and prior execution applications against the 9th defendant (in 1918 and 1920) do not preserve the limitation period as regards the 10th defendant.

Respondent's Position (as recorded in the opinion)

The opinion records that it was admitted the 1915 execution application was within time. The 1921 application sought to secure delivery of item No. 2 to the decree-holder and, as the court reasons, the 1921 application was intended to call the executing Court's attention to the pending execution application of 1915 rather than to constitute a new or revived application that would be time-barred.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Puttayya v. Puttanayya, A.I.R. 1925 Mad. 152	Held that the execution application in that case was within time.	Referred to as background authority relevant to the time question; earlier decision (Jackson) found the application within time and this grounded part of the controversy that led to the present appeal.
Order XXI, Rule 57 (Code of Civil Procedure)	Defines duty on decree-holder to assist in execution; if decree-holder's default prevents proceeding, Court shall either dismiss application or for sufficient reasons adjourn proceedings; upon dismissal attachment shall cease.	Employed to explain statutory procedure for execution applications and to criticise the practice of "lodging" or "recording" petitions for statistical purposes (which the Court held is not sanctioned by the Code).
Suppa Reddiar v. Avudai Ammal, 28 M. 50 (Full Bench)	If an execution application is improperly dismissed, a subsequent application to revive/continue is governed by Article 178 of the old Limitation Act (corresponding to Article 181 of present Act).	Noted by counsel; the Court distinguished this case because the 1915 application in the present matter was held NOT to have been dismissed.
Chalvadi Kotiah v. Poloori Alimelammah, 3 M.L.T. 329 (31 M.L.J. 71)	When an executing Court dismisses an application merely to remove it from the pending list (statistical purposes), that does not amount to a substantive dismissal; the right to continue accrues day-to-day until proceedings cease to be pending.	Applied to hold that the 1915 petition was still pending notwithstanding the "recording" or "lodging" notation; supported the view that the 1921 filing was not time-barred.
Subba Chariar v. Muthuveeram Pillai, 14 Ind. Cas. 264	Follows the principle in Chalvadi Kotiah that a pending execution application preserves the right to apply for continuance; a subsequent application seeks continuation rather than being a fresh application under limitation provisions.	Cited in support of the conclusion that the 1915 application remained pending and thus the 1921 step was not a fresh, time-barred application.
Ayisa Umma v. Puttiyapurayil Kunnachunkandi Abdulla, A.I.R. 1924 Mad. 178 (19 L.W. 613)	Held that an order of dismissal of an execution petition for "statistical purposes" did not amount to dismissal; petition should be considered pending.	Relied upon to reinforce the proposition that a notation removing a petition from active lists does not terminate its pendency; used to support the conclusion that the 1915 application was pending.
Article 182, Limitation Act — Explanation I	Where a decree is passed jointly against more than one person, an application made against any one or more of them shall take effect against them all.	Interpreted liberally by the Court to conclude the present decree is a joint decree for the purposes of limitation, so that execution against one defendant can keep alive the right against others.
Subramania Chettiar v. Alagappa Chettiar, 30 M. 268	Where some reliefs in a decree are joint, an application to execute one such joint relief preserves the right to execute other related reliefs (reference made to Explanation 1 to Article 179 of Schedule II).	Applied to find the present decree to be joint in part and to hold that earlier execution applications against the 9th defendant preserve the right to execute against the 10th defendant.
Barada Kinkar Chowdhury v. Nabin Chandra Datta, 14 C.W.N. 465	Followed Subramania Chettiar on similar facts concerning joint decree consequences for execution rights.	Cited as an analogous authority supporting the Court's conclusion that the decree in the present case is joint and that execution against one defendant keeps alive rights against others.

Court's Reasoning and Analysis

The Court conducted a two-fold analysis: (1) whether the 1915 execution application had in fact been dismissed (and thus whether the 1921 application was a fresh application subject to limitation), and (2) whether the decree is joint so that execution steps taken as to one defendant affect others.

On the first question, the Court examined the nature of the order made on 27 March 1916 ("the 3rd item was delivered to the petitioners and the petition was recorded") and concluded that the present Code of Civil Procedure does not contemplate orders that merely "lodge" or "record" execution petitions for statistical purposes. The Court explained the correct statutory procedure under the Code: an execution application should be disposed of on the merits if in order, or dismissed if barred by limitation or otherwise incurable by the decree-holder's default; alternatively, the Court may adjourn for sufficient reasons. The Court relied upon Order XXI, Rule 57 to show the duty of the decree-holder and the power of the Court to dismiss or adjourn.

The Court held that striking off or lodging a petition is not a procedure sanctioned by the Code and effectively amounts to adjourning the petition sine die. Relying on precedents (Chalvadi Kotiah; Subba Chariar; Ayisa Umma), the Court concluded that such an order does not constitute a substantive dismissal and that the rights of the decree-holder continue to accrue while the petition remains pending. Therefore, the 1915 petition remained on the record and pending; the 1921 application was not a new execution application nor an application to revive a dismissed petition, but rather a step to call the Court's attention to the need to proceed with the pending 1915 application. Consequently, the 1921 filing was not barred by limitation.

On the second question (joint vs several decree), the Court examined the decree language: it ordered recovery of possession from defendants Nos. 9 and 10 and recovery of future rental from each of the 9th and 10th defendants. The Court reiterated the legal principle that where any relief in a decree is against defendants jointly, the decree is joint as to that relief; Explanation I to Article 182 was cited. The Court interpreted Explanation I liberally and, relying on Subramania Chettiar and Barada Kinkar Chowdhury, held that the decree was a joint decree. Accordingly, execution applications against the 9th defendant kept alive the right to execute the decree against the 10th defendant.

The Court also expressed strong disapproval of the administrative practice of "striking off" or "lodging" execution petitions for statistical purposes and stressed that the proper remedy for long pending execution matters is adjournment for definite periods and active case management by the executing Court.

Holding and Implications

Core Holding: The Letters Patent appeal is DISMISSED with costs.

Direct consequences for the parties:

The Court held that the execution application filed in 1915 remained pending (not dismissed) and that the subsequent 1921 step was not barred by limitation; thus the dismissal by the lower courts on limitation grounds was not upheld.
The Court held that the decree is a joint decree for purposes of limitation; execution proceedings taken as to the 9th defendant preserve the right to execute as to the 10th defendant.
The appeal by the 10th defendant failed; the decree-holders' execution rights were not defeated by the passage of time as argued by the appellant.

Broader implications and court's observations:

The opinion criticises the practice of administratively striking off or recording execution petitions for statistical reasons and calls for it to cease; the Court emphasised adherence to the procedure set out in the Code (Order XXI, Rule 57).
One concurring judge (David Grierson Waller, J.) agreed with the legal conclusions but remarked that the outcome can be unsatisfactory when a decree-holder fails to prosecute an application for many years; he suggested more structured adjournments (e.g., six-month periods) when execution is held up by other proceedings.
The decision is rooted in application of existing authorities and statutory provisions; the opinion interprets and applies precedent and the Limitation Act explanations rather than purporting to lay down a novel rule of law. The direct effect is limited to the parties and the case at hand.

Result: Letters Patent appeal dismissed with costs. Both judges recorded agreement on the principal points considered.

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Pattannayya v. Pattayya Alias Krishnayya Shanbhaga And Others

M.D. Devadoss, J.

1. The only question id this appeal is whether the decree-holer's application for execution is barred by limitation. The facts are briefly these: The respondents herein obtained a decree in O.S. No. 77 of 1903 on 28th September 1903. It is admitted that the application for execution in R.E.P. No. 323 of 191-5 on 11th March 1915 was within time. The Court ordered delivery of the properties to the decree-holders on 21st July 1915 Third persons objected to the delivery. The abjection was removed and item No. 3 was delivered to them on 27th March 1916 and the Court passed an order on that day the 3rd item was delivered to the petitioners and the petition was recorded." A suit was filed by the obstructors and a temporary injunction was granted against the delivery of item No. 2. The suit was ultimately dismissed on 10th December 1916 and consequently the temporary injunction ceased to be in force from that date. The respondent filed an execution application on 3rd September 1921 and prayed for delivers of item No. 2 from the 10th defendant. Both the lower Courts dismissed the applicator as being barred by time and Jackson, held in Puttayya v. Puttanayya A.I.R. 1925 Mad. 152 that the application was within time. Hence this appeal by the 10th defendant.

2. The first contention is that the present application filed nearly six years after the application of 1915 is barred by limitation and it is urged that if this application is to be treated as an application to record the execution application of 1915 it should have been filed within three years of 18th December 1910 when the obstruction to execution was removed. The order of the District Munsif on the application of 1915 is "the third item was delivered to the petitioners and the petition was recorded." The question is whether the order amounts to a dismissal of the application. The present C.P.C. does not contemplate the passing of such an order. When an execution application is filed, if it is in order, it has to be disposed of on the merits; if it is barred by limitation or if the decree has been satisfied or if the applicant is not the decree-holder's assignee or his legal representative or if the decree-holder does not help the Court in executing the decree, or omits to do anything which the Court directs him to do, the application will have to be dismissed unless for proper reasons the Court adjourns the application. If the decree-holder is not able to do a thing allowed by the Court, the Court has to give him further time.

3. There is no provision of law by which the Executing Court could lodge the petition or record it, or strike it off for what is commonly called the statistical purposes. The Executing Court is bound to follow the procedure laid down in the Code and. it cannot dismiss the application for the reason that it is long pending. If there is obstruction to the execution of the decree, the Court ought to adjourn the petition till the removal of the obstruction. It does not matter how long the obstruction continues. If a temporary injunction is issued against a Court executing a decree, the Court should stay its hands till the injunction is dihsolved or till the suit in which it is granted is disposed of. If a permanent injunction is granted, against the execution of the decree, then the application for execution will have to be dismissed. If the Executing Court adjourns the petition from time to time, it will enable the decree holder to inform the Court as to the progress of the suit or proceeding in which the temporary injunction is granted and as soon as it is informed that the obstruction has been removed the Courts should proceed to dispose of the application according to law. It is to prevent dilatory proceedings and the long pending of execution applications that Order XXI, Rule 57 has been enacted. It lays upon the decree-holder the duty of helping the Court to execute the decree in his favour and if by reason of the decree holder's default the Court is unable to proceed further with the execution application, it shall either dismiss the application or for sufficient reasons adjourn the proceedings to a future date. Upon the dismissal of such an application the attachment shall cease. Under the old Code if the properties were once attached and the application for execution was subsequently dismissed, the attachment did not necessarily cease to have effect. If, instead of following the procedure laid down by the Code, the Executing Court orders that the petition be loged or recorded, or struck off, such an order is not one sanctioned by the Code and it only amounts, to this: petition is adjourned sine die. In this view the petition of 1915 is still on the record of the executing Court and the petition of 1921 is not a further application for execution, nor is it an application to revive that of 1915, for that is still on the file and no application is required to revive an application which is pending. It is an incorrect use of language to speak of reviving a petition which has not been dismissed. If the application has been improperly dismissed, an application would be necessary to revive it, viz., where the dismissal is not on the merits or for the default of the decree-holder but for the statistical purposes or on account of obstruction which would take time to remove. As the application of 1915 is still pending, the application of 1921 was only intended to call the attention of the executing Court to the fact that the execution application had to be proceeded with. The argument that if a Court lodges or records an execution application it should be regarded as pending and that there will be no time limit for asking the Court to proceed with it, obviously overlooks the fact that it was not the decree-holder that stood in the way of the execution being proceeded with but that the Court kept the matter pending without taking the necessary steps. When a Court keeps a matter pending, a party should not suffer by reason of the dilatoriness of the Court or by an action of the Court; not sanctioned by the law. The remedy to prevent long pendency of applications for execution is to adjourn the applications from time to time and to have them brought up for orders. If that is done, the Court would be in a position to know whether the execution could be proceeded with or not, and as soon as the obstruction is removed the Court would be able to proceed with the execution according to law.

4. Great reliance is placed by Mr. T.M. Krishnaswami Iyer on Suppa Reddiar v. Avudai Ammal 28 M. 50 (F.B.) where a Full Bench of this Court held that if an execution application is improperly dismissed, a subsequent application to revive or continue the application is governed by Article 178 of the old Limitation Act corresponding to Article 181 of the present Act. This case is distinguishable from the present, for here the application of 1915 was not dismissed. In Chalvadi Kotiah v. Poloori Alimelammah 3 M.L.T. 329 the Executing Court dismissed an execution application without notice to the parties on the ground that the execution had been stayed by the order of the District Court. Miller and Munro, JJ., held that the order of dismissal amounted to no more than a direction to the officers of the Court to remove the proceedings from the pending list, and observed at page 76 Page of 31 M.--[Ed.]:

that so long as proceedings initiated by the decree-holder are pending, his right to apply for their continuance accrues from day to day, i.e., on every day on which the Court does not suo moto continue them The right to apply will then not be barred till three years have elapsed after the proceedings have ceased to be pending.

5. In Subba Chariar v. Muthuveeram Pillai 14 Ind. Cas. 264 Benson and Abdur Rahim, JJ., follow the decision of Miller and Munro, JJ., in Chalvadi Kotiah v. Poloori Alimelammah 31 M.L.J. 71 : 3 M.L.T. 329. The principle of these cases is that if an execution application is pending, a subsequent application is not an application under Article 181 but an application asking the Court to continue the proceedings in a pending application. The decision in Ayisa Umma v. Puttiyapurayil Kunnachunkandi Abdulla A.I.R. 1924 Mad. 178 : 19 L.W. 613 to which one of us was a party is in point. It was held in that case that an order of dismissal of an execution petition for statistical purposes did not amount to a dismissal of the petition but that the petition should be considered as pending, I hold that the application of 1915 is still pending and, therefore, there is no bar to its being proceeded with.

6. In this connection I must express my strong disapproval of the practice of striking off or lodging an execution application for statistical purposes. The sooner it is stopped the better it would be for the parties as well as for the Courts executing decrees.

7. The next point urged is that the decree is not a joint decree and, therefore, the application of 1918 and of 1920 for execution against the 9th defendant do not save the bar of limitation, so far as the 10th defendant is concerned. In view of my decision on the first point it is unnecessary to deal with this point at length. The relevant portion of the decree is as follows:

"Plaintiffs do recover from defendants Nos. 9 and 10 possession of the plaint property with buildings thereon described below; plaintiffs do recover from the 9th defendant future rental, etc., and plaintiffs do recover from the 10th defendant future rental, etc." The argument is that inasmuch as the decree directs the 9th and 10th defendants to pay mesne profits severally, it is not a joint decree but a several decree, and the application for execution against the 9th defendant cannot be treated as an application in a joint decree. Where a defendant is directed to pay a certain sum to plaintiff and another defendant is directed to pay a similar sum or a different sum to the plaintiff, the decree is not joint decree; but where a decree directs that A and B shall pay a certain sum to the plaintiff and further directs that A should pay another sum and that B should pay another sum and that A and B should bear their own costs, the decree is a joint decree against A and B. The decree is a joint decree if any one of the reliefs given in the decree is against the defendants jointly even though some other reliefs may be given against each defendant separately Explanation I to Article 182 of the Limitation Act is in these terms:

But where the decree or order has been passed...jointly against more persons than one, the application, if made against any one or more of them, or against his or their Representatives, shall take effect against them all.

8. This explanation should be liberally interpreted, and according to its terms the present decree is a joint decree. In Subramania Chettiar v. Alagappa Chettiar 30 M. 268 it was held that where a decree awards mesne profits against A and B jointly and costs jointly against A, B and C, an application to execute the decree, for mesne profits against A and B keeps alive the right to execute the decree for costs against C under part 2 of para. 2, Explanation 1 to Article 179 of Schedule II to the Limitation Act. This case was followed, by a Bench of the, Calcutta High. Court in Barada Kinkar Chowdhury v. Nabin Chandra Datta 14 C.W.N. 465. The facts of that case are very similar to those of the present. The decree in this case is a joint decree and the present application against the 10th defendant is not barred by limitation by reason of the application of 1918 and 1920. I find this point against the appellant.

9. In the result the Letters Patent appeal is dismissed with costs.

David Grierson Waller, J.

10. On the first point I agree that, on the authorities no other conclusion is possible, though the position does seem to me to be highly unsatisfactory if the decree-holder had presented an application directly after the close of the intervening litigation (as he should have been forced to do) and that application had been dismissed early in 1917, his present application would have been long out of time. Having done nothing to prosecute his first application for six years, he is, on the authorities, still in time.

11. Something should, of course, be done to put an end to this method of adjourning execution applications sine die. If they are held up by some other proceedings, they should be adjourned either for definite period of six months each, or till the date of the closing of the other proceedings.

12. On the 2nd point also I agree.

Pattannayya v. Pattayya Alias Krishnayya Shanbhaga And Others

Structured Summary of the Opinion (M.D. Devadoss, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (as presented in the opinion)

Respondent's Position (as recorded in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Pattannayya v. Pattayya Alias Krishnayya Shanbhaga And Others

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