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  • Article 158 (now 165) of the Lim. Act, 1871,
  • Article 165, Sch. 2, Lim. Act,
  • Article 165, Sch. 1, Lim. Act,
  • Act of 1908, Article 167
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Citation Codes
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citation codes
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  • Article 158 (now 165) of the Lim. Act, 1871,
  • Article 165, Sch. 2, Lim. Act,
  • Article 165, Sch. 1, Lim. Act,
  • Act of 1908, Article 167
Smart Summary

Judgment Summary

Factual and Procedural Background

Respondents 1 to 8 (legal representatives of Ahmed Kutti, who had been defendant 10 in Original Suit No. 762 of 1909) sought restoration of certain immovable property and mesne profits by an application under Section 47 of the Code of Civil Procedure (CPC), alleging wrongful delivery of property to the appellant in execution of the decree. The respondents initially presented their claim as Original Suit No. 392 of 1913, but on objection the claim was converted into an application under Section 47 because they were representatives of a defendant in the earlier suit.

Both the District Munsif and the lower appellate court held for the respondents, directing restoration of the properties and awarding mesne profits at Rs. 20 per year. The appellant contended that the respondents' application was time-barred under Article 165 of Schedule 1 of the Limitation Act (Lim. Act), because it was made nearly 2 years and 11 months after possession was taken. The lower courts applied a three-year limitation, apparently under Article 181.

The principal procedural question before the Full Bench was whether Article 165 of Schedule 1 of the Limitation Act is applicable to applications by judgment-debtors under Section 47 CPC (i.e., whether the respondents' application was time-barred under Article 165 or governed by Article 181).

Legal Issues Presented

  1. Whether Article 165, Schedule 1, Limitation Act applies to applications by judgment-debtors under Section 47 CPC for restoration of immovable property delivered to a decree-holder in excess of what was decreed.
  2. If Article 165 is not applicable, whether such applications by judgment-debtors are governed by Article 181 (three years) of the Limitation Act.

Arguments of the Parties

Appellant's Arguments

  • The appellant's counsel contended that Article 165 applies to the present application and thus the respondents' application was time-barred. Counsel relied on the observation in Ratnam Ayyar v. Krishna Doss Vital Doss, and on the decision in Vythilinga Muppanar v. Seethalakshmi Ammal (Appeal Against Appellate Order No. 25 of 1889), which (according to the appellant) supported applying Article 165 where the applicant is a party bound by the decree as well as where he is a stranger.

Respondents' Arguments

  • The respondents (as judgment-debtors) maintained that Article 165 does not apply to their Section 47 application and that Article 181 (three years) governs such applications. Their position was supported by the Allahabad High Court decision in Abdul Karim v. Islamunnisa Bibi, which held that Article 181 applies to applications by judgment-debtors for restoration of immovable property seized by a decree-holder in excess of the decree.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Abdul Karim v. Islamunnissa Bibi Held that applications by judgment-debtors for restoration of immovable property taken by a decree-holder in excess of what had been decreed are governed by Article 181 (not Article 165). The Full Bench concurred with this view; the Court followed and adopted the reasoning in Abdul Karim and relied on it in concluding Article 165 does not apply to judgment-debtors' Section 47 applications.
Ratnam Ayyar v. Krishna Doss Vital Doss Earlier Bench decision stating that Article 165 applies to cases where the applicant is a party bound by the decree as well as where he is a stranger. The Full Bench examined this decision, found it to be brief and without reasons on the point, considered it erroneous, and ultimately overruled it (answering the reference in the negative).
Vythilinga Muppanar v. Seethalakshmi Ammal (Appeal Against Appellate Order No. 25 of 1889, unreported) Relied upon in Ratnam Ayyar; its judgment reasoned from the absence of the words “other than a judgment-debtor” in the article and treated the article as applicable to judgment-debtors. The Court noted it is a decision in point but observed its reasoning rested on a textual omission; the Full Bench considered that this basis did not outweigh the historical and contextual reasons for excluding judgment-debtors from Article 165's scope.

Court's Reasoning and Analysis

The Full Bench's analysis was grounded in statutory history, textual interpretation, and consideration of prior decisions:

  1. Historical and textual origin: The Court traced Articles 165 and 168 to Sections 230 and 269 of the Code of Civil Procedure, 1859, which dealt with obstructions and dispossessions by persons other than the defendant. Article 165 (originally Article 158 in the Limitation Act of 1871) should therefore be read against that background.
  2. Proper textual reading: Wallis, C.J. interpreted the phrase (as reproduced in the Limitation Act) to mean disputes about “the right of the decree-holder to be put into possession under the decree.” That question, the Court observed, is decided against the defendant in the suit and cannot be re-agitated in execution proceedings. This supported the conclusion that Article 165 was intended for persons other than the defendant (third parties).
  3. Legislative changes and practical effect: The Court examined the way the articles were carried forward and amended (Acts of 1871, 1877, 1908). It noted amendments that in fact limited the scope of applications under Order 21, Rule 100 CPC to property covered by the decree or sale pursuant to it, reinforcing the view that Article 165 was not meant to cover defendants' claims for property not included in the decree.
  4. Tautology and interpretation: The Full Bench addressed earlier reliance on the absence of an express exclusion of judgment-debtors from Article 165 (as in Vythilinga Muppanar). The Court concluded that an express exclusion was unnecessary if the article, properly read in historical and procedural context, was already intended to apply only to third-party applications under Order 21, Rule 100.
  5. Comparative consequence: The Court observed an incongruity if Article 165 (shorter period) were applied to immovable property recovery by judgment-debtors while Article 181 (three years) governed recovery of money or movable property taken in excess — producing an unjust disparity unlikely to have been intended by the legislature.
  6. Precedent scrutiny and stare decisis: Although Ratnam Ayyar had been followed for a long time, the Court considered it brief and unreasoned on this point; Wallis, C.J. felt justified in overruling it in light of the historical and textual analysis and the persuasive authority of Abdul Karim v. Islamunnissa Bibi. Ayling, J. and Sadasiva Aiyar, J. agreed with this outcome.

Holding and Implications

Core Ruling: Article 165 of Schedule 1, Limitation Act, is not applicable to applications by judgment-debtors under Section 47 CPC for restoration of immovable property delivered to a decree-holder in excess of what was decreed; such applications are governed by Article 181 (three years).

Direct consequences:

  • The Full Bench concurred with the reasoning in Abdul Karim v. Islamunnissa Bibi and overruled Ratnam Ayyar v. Krishna Doss Vital Doss to the extent it held Article 165 applicable to judgment-debtors.
  • For the parties in the present case, the respondents' claim was properly governed by the three-year limitation period (Article 181), and the lower courts' application of the three-year rule was consistent with this holding. The lower courts had directed restoration and awarded mesne profits at Rs. 20 per year.

Wider implications noted by the Court: The decision aligns limitation treatment of judgment-debtors' claims for immovable property with historical statutory intent, avoids anomalous shorter limitation for immovable property as against movable property or money taken in excess, and relies on the procedural confines of Order 21, Rule 100 CPC as affecting which applicants Article 165 was intended to cover.

Disposition: Reference answered (the Court answered the reference in the negative as to the applicability of Article 165 to judgment-debtors' Section 47 applications).

    Thattantavita And Others v. Puthalathu Kandi Kombi Aliassan And Others

    Ayling, J.:— This is of the nature of a second appeal against an order of the District Munsif of Nadapuram directing restoration to respondents 1 to 8 of certain property, which he held to have been wrongly delivered to appellant under a decree of his Court. The so a question before us now is whether respondent's application was time barred; and this turns on whether Article 165, Sch. 1, Lim. Act, is applicable to the case. Respondents were defendants in the original suit and judgment-debtors under the decree and we are asked by their counsel to hold that Article 165 only applies to applications by other persons under O. 21, R. 100, and not to petitions by judgment-debtors under Section 47 of the CPC. On this point there is a conflict of rulings. In Abdul Karim v. Islamunnissa Bibi(1) the learned Judges held in a carefully considered judgment that applications of this kind by judgment-debtors were governed by Article 181, and not Article 165. In this view I fully concur: as also in the reasoning which supports it. On the other hand a Bench of this Court has held in Ratnam Ayyar v. Krishna Doss Vital Doss(2) that Article 165 applies; the judgment is in this respect of the briefest and assigns no reasons. With all respect I think this was wrong; but as it has never been overruled and is reported in the regular series I do not feel justified in refusing to follow it without a reference to a Full Bench. I would therefore refer to a Full Bench the question of whether Article 165, Sch. 1, Lim. Act, is applicable to applications by a judgment-debtor for restoration of immovable property in excess of what has been decreed.

    Krishnan, J.:— This appeal against appellate order arises from an application by respondents 1 to 8 against the appellant, under Section 47 of the CPC, for recovering with mesne profits possession of certain properties alleged to have been wrongfully taken possession of by him in execution of the decree in Original Suit No. 762 of 1909 from their lessee respondent 9 who was defendant 15 in the case.

    2. Respondents 1 to 8 are the legal representatives of one Ahmed Kutti who was defendant 10 in the suit. They had first put forward their present claim as a suit Original Suit No. 392 of 1913, but on objection being taken by the appellant it was converted into an application under S. 47, as they are the representatives of defendant 10 in Original Suit No. 762 of 1909. Both the lower Courts have held that they are entitled to the relief claimed by them as the decree in Original Suit No. 762 of 1909 did not include the properties in question and have directed the properties to be redelivered to them with mesne profits at Rs. 20 a year. Appellant's plea that the respondents' application was time barred under Article 165. Lim. Act having been made nearly 2 years and 11 months after possession was taken by him was overruled the lower Courts holding that the 3 years' rule of limitation applied, apparently under Article 181 though they do not say so expressly.

    3. The appellant has again raised before us the same question of limitation. His learned counsel contends that Article 165 applies and relies upon the observation in the case in Ratnam Ayyar v. Krishna Doss Vital Doss, where the learned Judges say:

    “There can be no doubt as held by the lower appellate Court that Article 165, Sch. 2, Lim. Act, is applicable to a case where the applicant is a party bound by the decree as well as where he is a stranger: see Vythilinga Muppanar v. Seethalakshmi Ammal(3), Appeal Against Appellate Order No. 25 of 1889 (unreported).”

    4. That observation is no doubt directly in the appellants' favour but the question was recently considered by the Allahabad High Court in Abdul Karim v. Islamunnisa Bibi where the learned Judges held dissenting from the view taken in the Madras case, that Article 165 did not apply to no application by a judgment-debtor for restoration of immovable property seized by the decree-holder in excess of what had been decreed but Article 181 applied. With all respect to the learned Judges in the Madras cases I am inclined to think that the view expressed in the Allahabad case is correct and should be adopted. I fully agree with the reasons given by the learned Judges in that case and I need not repeat them. I would however add that if Article 165 should be read as applicable to an application like the present one under S. 47, it would be equally justifiable to apply it to a defendant who claims to recover by way of restitution proceedings immovable property taken by the decree-holder from him for he would also be a person dispossessed of immovable property applying under the Code of Civil Procedure, and disputing the right of the decree-holder to be put into possession. It has however always been held that Article 181 is applicable to such a case. Furthermore as Article 165 cannot by its terms apply to the recovery of movable property or of money taken by the decree-holder in excess of what he is entitled to under the decree the application of Article 165 to the recovery of immoveable property so taken will lead to the extraodinary postion that in the case of the latter the judgment-debtor will only have 30 days, whereas in the case of the former he will have 3 years, a result that the legislature can ??? have intended. The wording of Article 165 and its position in conjunction with Articles 166 and 167 would seem to indicate that it is properly applicable only to applications under O. 21, R. 100 of the CPC. I may also observe that when as in the present case a person dispossesses another of property not included in the decree it seems doubtful if the latter can be considered to be “a decree-holder” qua that property within the meaning of the article.

    5. In Ratnam Ayyar v. Krishna Doss Vital Doss there is no discussion of the question before us as the learned Judges merely follow the unreported case. It would also seem as pointed out in Abdul Karim v. Islamunnissa Bibi, that the observation in it is in reality an obiter dictum, as the Judges were dealing with the case of a minor to whom they held no limitation applied. On examining the unreported case in Appeal Against Appellate Order No. 25 of 1889 [Vythilinga Muppnaar v. Seethalaaskmi Ammal]. I find it is no doubt a decision in point. But the judgment in it is based entirely on the absence of the words “other than a judgement-debtor” in the article. This is no doubt at first sight an important point, but I am inclined to think that it does not affect the consideration in favour of the opposite view.

    6. It is only if the article can be applied to the case of a judgment-debtor, that the omission will be material. But, if, as I think, the article applies only to applications under R. 100, it was unnecessary and even incorrect to introduce an exception in favour of judgment-debtors into it when the rule is sufficient to exclude them as it does. The form of the article is thus quite consistent with my view. I therefore agree to the reference to the Full Bench proposed by my learned brother.

    OPINION

    Wallis, C.J:— The period of limitation prescribed by Articles 165 and 168 may be traced back to Sections 230 and 269 of the CPC 1859, which dealt only with obstructions by, and dispossessions of, persons other than the defendant. The provision in Section 230 was re-enacted as Article 158 (now 165) of the Lim. Act, 1871, as follows:

    “Under the Code of Civil Procedure, by a person dispossessed of immovable property and disputing the right of the decree-holder to be put into possession.”

    7. This, in my opinion, must be read as meaning

    “disputing the right of the decree-holder to be put into possession under the decree.”

    8. That question had been decided against the defendant in the suit itself, and it was not open to him to raise it again in execution. This shows that Article 158 was intended to apply only to a case covered by S. 230 of the Code, where a person other than the defendant had been dispossessed, and that is in accordance with the ordinary presumption that no substantial alteration is intended when a particular provision is transferred from one Statute to another. Article 158 of the Act of 1871 did not provide for applications by a decree-holder who had been resisted by third persons in taking possession under the decree, whereas Article 160 (now 167) dealt with complaints in the case of Court sales both by the purchaser and by persons dispossessed by him (S. 269 of the Code of 1859). In the Act of 1877, Article 158 was reproduced as Article 165 and amended by inserting after decree-holder the words “or purchaser at a sale in execution of a decree,” and Article 167 was amended by extending it to complaints of obstruction by decree-holders as well as by purchasers (a case not dealt with by the Act of 1871), and by making it applicable to applications complaining of dispossession, not only by auction purchasers, but also by decree-holders. Both these cases were however covered by Article 165 as amended, and the latter portion of this article was therefore not reproduced in Article 167 of the Act of 1908. In Appeal Against Appellate Order No. 25 of 1889 [Vythilinga Muppanar v. Seethalahshmi Ammal, which was followed in Ratnam Ayyar v. Krishna Doss Vital Doss, the learned Judges relied on the fact that Articles 165 and 167 do not in terms exclude the judgment-debtor, but their attention was not called to the fact that the articles were transferred from the Code of 1859 where the restriction was to be found. They further observed that:

    “unless the articles referred severally to judgment-debtors as well as third parties, there would be tautology.”

    9. There was however tautology in the Act of 1877 in either view and in the Act of 1908, Article 167 was amended so as to remove it. There is in my opinion nothing in these changes to show any intention of widening the scope of the article so as to make it applicable to defendants.

    10. The decision in Ratnam Ayyar v. Krishna Doss Vital Doss having stood so long unquestioned in this Court and elsewhere I have felt great doubt as to whether we should not continue to follow it, having regard to the nature of the points decided, on the principle of stare decision. The legislature has however itself restricted the scope of Article 165 by restricting in the Code of 1908 applications by third parties under O. 21, R. 100, to applications with reference to property covered by the decree or sale in pursuance thereof, and the fact that this procedure is not now applicable to complaints by third parties of dispossession of property not covered by such decree or sale appears to me to afford an additional reason for excluding from the scope of the article similar complaints by defendants who, as I am satisfied, were never intended to be covered by it. I think moreover that the rights of defendants are sufficiently restricted by their being required to apply under S. 43 within the period limited by Article 181. Agreeing with the decision in Abdul Karim v. Islamunnissa Bibi I would overrule Ratnam Ayyar v. Krishna Doss Vital Doss and answer the question in the negative.

    Ayling, J.:— I agree.

    Sadasiva Aiyar, J.:— In this case, I shared with my Lord (if I may respectfully say so) the hesitation he felt in overruling the old decision in Ratnam Ayyar v. Krishna Doss Vital Doss. But I am convinced after regarding his opinion that decision is erroneous. As cases of wrong delivery of judgment-debtors' property in excess of that decreed are rare and as it is very unlikely that many titles could have been created arising from alienations of such property by decree-holders to purchasers who believed the title to have been perfected by the default of judgment-debtors to file their applications within the shorter period of limitation till now prevailing, and as most of even those titles would have been perfected by the lapse of three years since the dates of such alienations, I agree in the answer proposed by my Lord.

    S.N/R.K

    11. Reference answered.

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    Thattantavita And Others v. Puthalathu Kandi Kombi Aliassan And Others
    (Apr 25, 1919)