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Muthukrishna Raja And Another v. Viswalinga Kadavarayar And Others

Madras High Court

Apr 28, 1939

Judgment

Subsequent
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Structured Summary of the Provided Opinion

Factual and Procedural Background

Three plaintiffs (all minors at the time) filed O.S. No. 113 of 1921, represented by their mother as next friend, to recover Rs. 2,468-14-9 alleged to be the balance of purchase money charged on plaint properties. The parties compromised and a consent decree embodying that compromise was passed on 31 March 1922. The decree required payment of Rs. 1,700 with interest at 6% per annum from the date of the plaint to the date of the decree within six months, provided for execution against property and person in default, and provided that money paid into Court for the minors should be drawn only on furnishing security; a similar security requirement was made when execution was taken out and money realized.

Multiple execution petitions followed:

An initial execution petition in 1925 (filed by the mother) is described as irregular and is not considered further in the opinion.
An application filed on 10 March 1928 by plaintiff 1 (for himself and as next friend for plaintiffs 2 and 3) was dismissed on 9 July 1928 and is said to have sought relief not claimable under the compromise decree.
An application filed on 16 August 1929 (by plaintiff 1 for himself and on behalf of plaintiffs 2 and 3) was originally defective (no schedule of properties) and was returned for amendment; after amendment it was dismissed on 16 January 1930 because plaintiff 1 did not furnish security for amounts already drawn by him or his mother.
A further application filed on 1 March 1930 was dismissed on 30 June 1930 because plaintiff 1 did not deposit the amount or give security as directed by the Court.
The present execution application was filed on 10 April 1933 and was rejected by both lower courts as barred by limitation; the appeal under A.S. No. 18 of 1935 to the Subordinate Judge of Kumbakonam resulted in confirmation of the lower order, prompting the present appeal considered in the opinion.

Legal Issues Presented

Whether the execution application filed on 10 April 1933 was barred by limitation, having regard to the prior execution applications and Article 182, Clause 5 of the Limitation Act.
Whether the execution applications filed on 16 August 1929 and 1 March 1930 were "in accordance with law" such that they could save limitation under Article 182(5), particularly in view of defects alleged (absence of property schedule, claim for post-diem interest, failure to give credit for amounts previously received, and plaintiff 1's failure to be formally appointed next friend).
Whether Order 21, Rule 17(2) Civil P.C. operates to date the representation of an amended execution application back to the date of original presentation when the original application was returned for amendment under Rules 11–14.
Whether post-diem (i.e., interest after the decree date) interest is claimable under the terms of the compromise decree.
Whether amounts paid into the hands of the mother (the next friend) and amounts paid to plaintiff 1 should be credited against the decree in execution, and whether plaintiff 1 may execute the decree as regards his own share after having admitted receipt.

Arguments of the Parties

Appellants' Arguments

Limitation could not begin to run while plaintiff 1 was a minor; limitation therefore starts only after plaintiff 1 attained majority (assumed by the court to be in 1927).
The execution applications filed on 16 August 1929 and 1 March 1930 were applications in accordance with law and, under Article 182, Clause 5 and Order 21, Rule 17(2), should be treated as presented on the date of their original presentation (thereby saving limitation).
The scheme of the decree and the parties' compromise support the claim for interest (post-diem interest) beyond the six-month period named in the decree.

Respondents' Arguments

Several defects in the 16 August 1929 application (no schedule of properties, claim for post-diem interest not permitted by the decree, failure to give credit for payments already received, and plaintiff 1 not formally appointed as next friend) meant the application was not "in accordance with law."
The order rejecting the execution application was not a "final order" within the meaning of Article 182, Clause 5, and so could not save limitation.
Under the terms of the decree, post-diem interest could not be claimed by the decree-holders.
Amounts paid into the hands of the mother without security should be treated as not binding on the minor plaintiffs and therefore not credited; and plaintiff 1's admitted receipt of his share disentitles him from executing the decree as to his own share.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Durga Prasad v. Mt. Powdharao Kuer ('31) 18 A.I.R. 1931 Pat. 274	Held (as described in the opinion) that an intermediate execution application was not in accordance with law where a prior final adjudication limited the decree-holder to a lesser entitlement, and thus did not save limitation.	The Court rejected the applicability of this decision to the present facts, criticized the principle as open to serious objection in the circumstances, and held that merely claiming more than what one is entitled to does not necessarily render an execution application not in accordance with law.
Unspecified Patna High Court decision (10 Pat 1831)	Described in the opinion as a Patna decision where a decree-holder was adjudged entitled only to one-sixth of the decree amount, and a later execution application claiming the whole amount was held not in accordance with law.	The opinion cites and treats that Patna decision as the precedent discussed above (Durga Prasad context) and states that it is open to serious objection and does not govern the present matter.
Nityananda Patnayudu v. Sri Radha Cheranadeo ('97) 20 Mad. 371	Principle on construction of instruments/contracts indicating that where a document provides interest up to a certain date, it may be inferred parties intended interest to continue until liquidation unless document shows contrary intention.	The Court relied on this principle to conclude that the compromise decree (a contract between the parties) indicated the parties intended interest to continue until liquidation and thus post-diem interest could be claimed.
Mathura Das v. Raja Naraindar Bahadur Pal ('97) 19 All. 39	Similar contractual principle on construction of terms relating to interest in agreements.	The Court cited this decision together with Nityananda Patnayudu to support the proposition that post-decree interest could be claimed under a compromise decree adopting contractual terms.
Naresh Chandra v. Krishna Bhobini Dasi ('26) 13 A.I.R. 1926 Cal. 505	Held (as described in the opinion) that where a decree passed after contest simply directed payment of sums on certain dates and contained no provision for interest, the executing Court had no jurisdiction to award interest.	The Court distinguished and doubted the application of this decision to the present case because the present decree is a compromise which partakes of the nature of a contract; consequently the Court held post-diem interest was claimable here despite the decree's silence about interest for the post-decree period.

Court's Reasoning and Analysis

The Court proceeded in a stepwise analytical manner, strictly applying the provisions of procedural law and the terms of the compromise decree as recorded.

Start of limitation: The Court accepted (as not disputed by respondents) that limitation could not run while plaintiff 1 was a minor and therefore began only after plaintiff 1 attained majority (taken as 1927 for purposes of the opinion). This sets the temporal framework for the Article 182, Clause 5 analysis.
Application of Order 21, Rule 17(2) Civil P.C.: The Court noted that under Order 21, Rule 17(1) an execution application returned for defects under Rules 11–14, when amended and re-presented, is to be deemed represented on the date of original presentation (Rule 17(2)). The Court found no authority to deprive a decree-holder of that benefit merely because the original application lacked a list of properties; here the application was returned (not rejected) and the decree-holders complied with the requirement within the time limited. Therefore Rule 17(2) applied and the August 1929 application was to be treated as presented on its original date.
Whether the execution applications were "in accordance with law": The Court examined each asserted defect:
- Absence of an initial schedule of properties: cured by return and amendment; did not prevent application from being in accordance with law under Rule 17(2).
- Claim for post-diem interest: the Court deferred detailed treatment to the decree-construction point and ultimately held that post-diem interest was claimable under the compromise decree, so this objection failed.
- Claiming more than what was allegedly due (failure to give credit for amounts already collected): the Court held that mere over-claiming does not by itself render an execution application not in accordance with law, criticizing the strict application of the Patna decision in this context.
- Plaintiff 1 not formally appointed as next friend after attaining majority: the Court found no provision in the execution chapter requiring formal appointment prior to filing; identification and affidavit in the execution petition sufficed. This objection also failed.
Result: The Court held the 16 August 1929 application was in accordance with law and that the order dismissing it on 16 January 1930 (for failure to furnish security) was a final order for the purposes of Article 182(5). Likewise, the 1 March 1930 application was in accordance with law and its dismissal on 30 June 1930 was a final order; the present application (10 April 1933) was within three years of that dismissal.
Construction of the decree on interest (post-diem interest): The Court emphasised that the decree recorded a compromise and thereby adopted the contractual terms agreed by the parties. Applying the contractual construction principles in Nityananda Patnayudu and Mathura Das (that nothing in the instrument indicated the parties intended interest to cease after the specified period and that it was unlikely parties intended the defendant to benefit by his own default), the Court concluded that post-diem interest at 6% per annum was claimable until liquidation. The Court considered Naresh Chandra (which held silent decrees could not be supplemented by interest in execution) but doubted its applicability where the decree is a compromise adopting contract terms. Accordingly the Court allowed the claim for post-diem interest.
Credit for payments already made and entitlement to execute: The Court accepted that certain sums (totaling Rs. 1,183-1-0) had been paid intermittently, with Rs. 537 paid into the hands of the mother (the next friend) and Rs. 636 paid to plaintiff 1. The Court held plaintiff 1 should not be permitted to execute the decree as to his own one-third share because he had admitted receipt and had earlier sought satisfaction for his share; satisfaction for plaintiff 1's one-third share was ordered. By contrast, payments received by the mother out of Court without giving the security required by the decree were not binding on the minor plaintiffs; these amounts could not be credited against the minors' shares.
Disposition on limitation and remedy: Because the August 1929 and March 1930 applications were in accordance with law and produced final orders in January and June 1930 respectively, and because the present application was filed within three years of the June 1930 order, the Court held there was no bar of limitation to the present execution application.
Final procedural directions: The Court set aside the orders of both lower Courts, remanded the execution application for further execution as regards the shares specified in the opinion, directed that satisfaction be entered for plaintiff 1's one-third share, allocated costs (each party to bear its costs in this Court and the lower Appellate Court; costs of the first Court to abide the result), and refused leave to appeal.

Holding and Implications

Core Rulings:

The Court held the execution application filed on 10 April 1933 was not barred by limitation because earlier execution applications (notably that of 16 August 1929 and 1 March 1930) were applications "in accordance with law" and produced final orders on 16 January 1930 and 30 June 1930 respectively, so the present application was within the three-year period under Article 182(5).
The Court held that post-diem interest at the rate of 6% per annum was claimable under the compromise decree, because the decree adopted the contractual terms of the compromise and the parties must be taken to have intended interest to continue until liquidation.
The Court ordered that satisfaction be entered as regards plaintiff 1's one-third share (because plaintiff 1 admitted receipt of his share), but that payments received by the mother without providing the requisite security are not binding on the minor plaintiffs and cannot be credited against their shares.
The Court set aside the orders of both lower Courts and remanded the execution application for further execution "as regards the shares of plaintiffs 1 and 2" (as stated in the opinion), with costs allocated as noted and leave to appeal refused.

Implications and Consequences:

Direct effect on the parties: The execution application is remanded for further proceedings consistent with the ruling; plaintiff 1's admitted one-third share is to be treated as satisfied; minors' shares are not to be reduced by sums received by the mother without security.
No broad new legal principle is announced beyond the Court's application and reconciliation of existing procedural rules (Order 21, Rule 17(2); Article 182(5)) and precedent on contract-based decrees and interest. The opinion principally clarifies that defects such as over-claiming or initial omission of a schedule, where cured by return and amendment under Order 21, Rule 17, do not necessarily render an execution application not in accordance with law for limitation-saving purposes.

Disposition Summary: Orders of both lower Courts are set aside; execution application remanded for further execution proceedings as to specified shares; satisfaction to be entered for plaintiff 1's one-third share; each party to bear costs in this Court and the lower Appellate Court; costs of the first Court to abide the result; leave to appeal refused.

Show all summary ...

1. This is an appeal against the order of the Subordinate Judge of Kumbakonam in A.S. No. 18 of 1935 by which he confirmed the order of the District Munsif passed in E.P. No. 620 of 1933 in O.S. No. 113 of 1921. O.S. No. 113 of 1921 was filed by three plaintiffs who were all minors on that date represented by their mother as next friend. The suit was to recover a sum of Rs. 2468-14-9 on a charge of the plaint properties. It appears that the amount was claimed as being the balance of the purchase money due to the plaintiffs. There was a compromise on foot of which there was a consent decree passed on 31st March 1922. The decree, which merely embodied the terms of the compromise, provided that a sum of Rs. 1700 with interest at six per cent, per annum from the date of plaint to date of the compromise should be paid within six months from the date of the decree and that in default execution was to be taken against the properties and against the person of the defendant and the amount recovered. As the plaintiffs were minors, it was also said that the money when paid into Court should be drawn on furnishing security. A similar provision was made that security should be given when execution was taken out and the money realized. There were a number of execution petitions filed to enforce this decree. The first of them was filed in the year 1925 by the mother acting as the next friend. It is said that there were a number of irregularities in that application and we may leave it out.

2. The second application was filed by plaintiff 1 who attained majority in the meanwhile. This application was filed on 10th March 1928 by plaintiff 1 for himself and as the next friend of plaintiffs 2 and 3. This was dismissed on 9th July 1928 and it is said that in this execution petition the relief that was asked was one that could not be claimed under the terms of the compromise decree and so we shall leave this also out of consideration. The next execution application was filed by plaintiff 1 for himself and on behalf of plaintiffs 2 and 3. This was filed on 16th August 1929. The application did not originally contain a schedule of the properties sought to be brought to sale and there were also some other defects. The application was returned for amendment and it was re-presented with the amendments including a list of the properties sought to be sold. It was finally dismissed on 16th January 1930 on the ground that plaintiff 1 did not furnish security for the amount which was already drawn either by him or by his mother. Then a fourth application was filed on 1st March 1930 by plaintiff 1 for himself and on behalf of plaintiffs 2 and 3. This again was dismissed on 30th June 1930. The Court directed plaintiff 1 to deposit into Court the amount which was already received by him or his mother and as the amount was not paid or security given for that amount, the application was rejected on 30th June 1930. The present execution application was filed on 10th April 1933. The question is whether this execution application is within time. Both the lower Courts rejected the application as barred by limitation.

3. It is urged for the appellants that until 1927 or 1928 plaintiff 1 was a minor and that until then limitation would not begin to run as all of them were minors. This is not disputed by the respondents. Limitation can therefore start only after plaintiff 1 attained majority, which we will take, was in the year 1927 as contended by the respondents' advocate. The applications which plaintiff 1 filed on 16th August 1929 and 1st March 1930 have been translated and placed before me. If these two applications were in accordance with law, then under Article 182, Clause 5 limitation has to be counted from the date when the final order was passed on these applications. Taking the first of these applications, what is urged is that, to start with, the schedule of properties was not given, that post-diem interest was claimed when it was not permissible under the decree, that certain payments which had been made to the decree-holders were not given credit to in the execution petition and lastly that plaintiff 1 did not get himself appointed as next friend of plaintiffs 2 and 3. On these grounds the respondents' learned advocate asks me to say that the application was not one in accordance with law. He also says that the order rejecting the application is not a "final order" within the meaning of Article 182, Clause 5, Limitation Act, as amended recently.

4. Under Order 21, Rule 17, Civil P.C., when an execution application returned for satisfying any of the requirements under Order 21, Rules 11 to 14 is re-presented, the effect is that the representation dates back to the date of the original presentation. Under Order 21, Rule 11, the decree-holder is bound to give particulars of the property which he wants to be sold for realizing the amount of the decree. Since these particulars were not given in the original execution application, the Courts as provided by Rule 17, Clause (1) ascertained whether the requirements of rules 11 to 14 were complied with and returned the application giving a time within which the defect was to be remedied. Clause (2) of Rule 17 says that where an application is amended under the provisions of Sub-rule (1) it shall be deemed to be an application in accordance with law and presented on the date when it was first presented. I have not been referred to any authority which lays down that the mere fact that a list of the properties was not given in the original execution application deprives the decree-holder of the benefit of Order 21, Rule 17(2). In this case the Court instead of rejecting the application straightway returned it calling upon the decree-holders to make the amendment and the decree-holders complied with the requirement within the time limited. In this case there is no warrant for saying that Order 21, Rule 17(2) does not apply. Next it is urged that the decree-holders claimed post-diem interest and that therefore the execution application is not in accordance with law. This depends upon the construction of the decree with which I shall deal later on. As I am deciding that post-diem interest is claimable under the decree, this objection has no force.

5. The next objection is that some amounts which had already been collected were not certified and were not given credit to. The mere fact that more money was claimed than what was due does not in my opinion render the application one not in accordance with law. A decision of the Patna High Court in 10 Pat 1831 is brought to my notice. There the decree-holder was adjudged to be entitled only to one-sixth of the decree amount. This was in the first execution application. In a later execution application instead of claiming that one-sixth alone which he was adjudged to be entitled to in the previous execution petition, he claimed the whole amount. That petition was for some reason dismissed and a still later application was filed and the question was whether the intermediate application saved limitation. The learned Judges held that because it bad been finally decided that the decree-holder was entitled to one-sixth he had no right to claim recovery of the whole amount by the intermediate application and that therefore the said application was not in accordance with law. It seems to me with great respect that that decision is open to serious objection. The mere fact that a decree-holder claims more than what he is entitled to is not a ground for saying that the application itself is not in accordance with law. It is not every defect contained in an execution application which renders it unavailing for the purpose of saving limitation under Article 182, Clause 5. This apart, there is no order in this case by which the Court adjudged that the decree-holders are not entitled to post-diem interest. Therefore the decision in Durga Prasad v. Mt. Powdharao Kuer ('31) 18 A.I.R. 1931 Pat. 274 does not apply and apart from it I see no justification for the contention that the mere fact that the decree-holder claims more than what he is entitled to according to the judgment-debtor renders the application itself one not in accordance with law.

6. Then the fact that plaintiff 1 did not get himself appointed as next friend, it is urged, is a circumstance which would render the application not in accordance with law. There is no provision in the execution chapter that when plaintiff 1 attained majority, he should get himself appointed as next friend before filing the execution application. It is in the execution petition that be has to describe himself as the next friend and file an affidavit or an application to get himself recognized as next friend. This objection again has no force. I therefore hold that the application filed on 16th August 1929 was one in accordance with law and it saves limitation. The final order on that application was passed on 16th January 1930 dismissing it for the reason that security was not furnished for the amount already drawn by the plaintiffs' mother or by plaintiff 1. This is not a case in which it can be said that the application was dismissed for non-prosecution, in which case the question might arise whether such an order would be a 'final order' within the meaning of Article 182(5). Going to the next application which was filed on 1st March 1930, the objections taken are that post-diem interest was claimed and that satisfaction of the amount already recovered was not reported. I have dealt with the question of interest and the remarks made by me as regards the previous application apply to this. So also with regard to the omission of the plaintiffs to give credit to the amount already recovered. I hold therefore that the fourth execution application is one in accordance with law and the order dated 30th June 1930, dismissing it for the reason that plaintiff 1 did not deposit the amount as required by the previous order is a final order on this execution petition. The present application was filed within three years of this date and therefore there is no reason for holding that the present application is barred.

7. Some other questions are raised which may be disposed of before remanding the execution application for further orders. It is contended by the learned Counsel for the respondents that under the terms of this decree post-diem interest cannot be claimed by the decree-holders. The material portions of the decree have already been set out. The decree was passed on 31st March 1922. Six months' time was given for payment of the amount agreed upon, and the compromise decree states that Rs. 1700 with interest from date of the plaint to the date of the decree shall be paid within six months from that date. There is no provision that after the expiry of six months the amount shall carry interest. But in such cases I think the principle laid down in the case of contracts between parties in the decisions reported in Nityananda Patnayudu v. Sri Radha Cheranadeo ('97) 20 Mad. 371 and in Mathura Das v. Raja Naraindar Bahadur Pal ('97) 19 All. 39 applies. As pointed in Nityananda Patnayudu v. Sri Radha Cheranadeo ('97) 20 Mad. 371 there is nothing in the document to indicate that the parties did not intend that interest should be paid after the expiration of the period, and it is plainly the intention of the parties in this case that interest should continue to be paid until liquidation of the debt. There is absolutely no reason to sup pose that the parties intended that the defendant should benefit by his own default and escape payment of interest if he did not pay the amount in time.

8. It is urged by the learned Counsel for the respondents, placing reliance on the decision of the Calcutta High Court in Naresh Chandra v. Krishna Bhobini Dasi ('26) 13 A.I.R. 1926 Cal. 505 that the principle laid down therein applies to this case. There the decree was one passed after contest and simply directed payments of certain sums of money on certain dates and contained no provision for interest. It was held that the executing Court has no jurisdiction to give interest when the decree itself is silent about interest. It is doubtful whether the decision would be the same, if for example the decree had provided that the defendant should pay the sum adjudged within a particular time with interest and nothing more was said. It would be a question whether in such a case the executing Court could not take it that the decree provided for interest subsequent to the time fixed. However that might be, the Court in this case, in passing the decree which it did, did no more than adopt the contract between the parties, the parties having settled privately the amount to be paid. The terms of the compromise were reduced to writing and placed before the Court and the Court simply adopted it after sanctioning it as being beneficial to the minor plaintiffs. This is a case to which the rule that a compromise decree partakes of the nature of a contract is applicable and I hold therefore that under this decree post-diem interest can be claimed by the plaintiffs at the rate of 6 per cent, per annum which is the rate fixed for the period between the date of the plaint and the date of the decree and I do not think it makes any difference that no provision was made for interest between the date of the decree and the date when the amount was payable.

9. The next question that is urged is, that various sums of money amounting in all to Rs. 1183-1-0 were paid from time to time and that credit ought to be give a by the plaintiffs in the present execution application. It is said that Rs. 537 of this sum was paid into the hands of the mother when she was the next friend of the plaintiffs and that Rs. 636 was paid to plaintiff 1. It is also said that plaintiff 1 actually certified that he had received his full share of the decree amount and had filed a petition asking the Court to enter up satisfaction so far as his own share is concerned. It is therefore contended that so far as his share, at any rate is concerned, satisfaction should be recorded and that he ought not to be allowed to execute the decree to that extent. With reference to this last question I agree with the contention of the learned advocate for the respondents that plaintiff 1 should not be permitted to execute the decree as regards his own share. In the execution application filed on 16th August 1929 he admitted receipt of the amount in question and prior to it he had already filed an application for entering up satisfaction to the extent of his share.

10. On that occasion the Court thinking that he ought not to be permitted to report satisfaction because it would be prejudicial to the interests of the other plaintiffs, declined to enter satisfaction. But that is no ground for allowing the plaintiffs to execute the decree for the full' amount. There is no limitation for a decree-holder to certify and if the decree-holder really had certified at one stage, the judgment-debtor is entitled to take advantage of it and request the executing Court to record satisfaction to that extent. Satisfaction will therefore be entered as regards plaintiff 1's one-third share. As regards the share of plaintiffs 2 and 3, it is said that some amounts were paid into the mother's hands, but she had no right to receive the amount out of Court without giving security. These payments are therefore not binding on the minor sons and these amounts cannot be given credit to. Again it is said that plaintiff 1 admitted these payments in the execution application filed on 16th August 1929, but it is admitted that so far as this sum of Rs. 537 is concerned, it was paid into the mother's hands. Plaintiff 1 may be the karta or manager of the family but he did not receive the amount. Therefore his admission, that a previous next friend had received the amount would not in my opinion entitle the judgment-debtors to have satisfaction entered as regards the minors' shares, particularly because no security was given by the person who received the amount. The orders of both the lower Courts are set aside and the execution application is remanded for further execution as regards the shares of plaintiffs 1 and 2. Bach party will bear his costs in this and in the lower Appellate Court. The costs of the first Court will abide and follow the result. Leave to appeal is refused.