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Citation Codes
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Case Number
Advocates
  • Mr. N. Suryanarayana for the Appellant.
  • Mr. K. Narasimha Ayyar for the Respondent.
Judges
  • Abdur Rahman, J.
Acts
  • Article 182(5) of the Indian Limitation Act
  • Article 182 of the Indian Limitation Act.
  • Article 182 of the Limitation Act
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Cites
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Mr. N. Suryanarayana for the Appellant.
  • Mr. K. Narasimha Ayyar for the Respondent.
Judges
  • Abdur Rahman, J.
Acts
  • Article 182(5) of the Indian Limitation Act
  • Article 182 of the Indian Limitation Act.
  • Article 182 of the Limitation Act
See more information ...
Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

A preliminary decree for sale instead of redemption of a usufructuary mortgage was erroneously passed on 8 November (year partially illegible in text). Costs were ordered against five defendants in favour of the plaintiff (decree-holder). The plaintiff applied for recovery of costs on 11 October 1923. The fifth defendant (the present appellant) objected that the decree was preliminary and therefore inexecutable; the executing Court overruled this objection. The fifth defendant appealed and succeeded: the appellate Court reversed the executing Court's order on 9 July 1924.

Meanwhile the plaintiff had recovered the costs from the fifth defendant; the defendant then applied for restitution (C.M.P. No. 1257 of 1924). The executing Court passed an order for restitution on 22 January 1925 which was confirmed on appeal. On 11 November 1925 the plaintiff applied to amend the preliminary decree (C.M.P. No. 357 of 1925) to convert the decree for sale into a decree for redemption and, on the same date, applied for a temporary injunction restraining the fifth defendant from realising the costs he had paid (C.M.P. No. 390 of 1925). An ex parte interim stay was granted by the executing Court.

The fifth defendant, apparently unaware of the interim order, presented another application for restitution on 13 November 1925. Instead of retaining or adjourning the petition, the executing Court returned it to the applicant on 18 November 1925 on the ground that the interim stay was in force. The plaintiff's application to amend the decree was eventually allowed on 8 March 1926 and the interim stay confirmed the same date. The plaintiff's revision against the amendment order was dismissed by the High Court on 28 April 1931.

The fifth defendant made a further petition for restitution before the revision decision; he attached the 13 November 1925 application, but that petition was returned for compliance and was not re-presented. On 28 April 1934 the defendant filed a fresh petition for restitution. The principal issues concern (a) whether the 13 November 1925 application should be treated as still pending/undecided despite having been returned, and (b) whether subsequent applications (notably the 1934 application) are within time.

Legal Issues Presented

  1. Whether the application for restitution presented on 13 November 1925, which was returned by the executing Court on 18 November 1925 because an interim injunction was said to be in force, is nonetheless still pending/undecided and should be proceeded with.
  2. Whether the application filed on 28 April 1934 (and an earlier application in 1928) is within the period of limitation applicable to applications for restitution/execution.
  3. Whether the period of limitation for restitution-applications is governed by Article 182 (and Article 182(5)) of the Indian Limitation Act, including whether the term 'appeal' in Article 182 includes revisions for the purpose of computing limitation.
  4. Whether the appellant is disentitled on the grounds of laches or delay even if the 1925 application is to be treated as pending.

Arguments of the Parties

Appellant's Arguments

  • The application of 13 November 1925 was wrongly returned to the appellant by the executing Court on the ground of an interim stay; because that return was legally wrong and no final order was made, the application remains undisposed of and pending.
  • Authorities establish that where a first application has been wrongly dismissed or not properly disposed of, a subsequent application may be treated as a continuation or revival of the earlier one.
  • The 1934 petition should be regarded either as a reminder to the Court to take up the pending 1925 application or as an application for continuance of that earlier application.

Respondent's Arguments

  • The orders returning applications (either improperly in 1925 or for compliance in 1928 that was not followed up) mean those petitions ceased to be effective (non est) and cannot be relied upon almost nine years later.
  • Even if the 1925 application were treated as pending, the appellant has been guilty of laches/delay and should be disentitled to relief; respondent relied on authorities cited (Sundaramma v. Abdul Khadar and Jagadisan Pillai v. Narayanan Chettiar).
  • Respondent argued that the particular circumstances of earlier cases relied on by the appellant were distinguishable because in those cases applications were physically in Court or the orders were specifically illegal.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Somasundaram v. Chokkalingam (1916) I.L.R. 40 Mad. 780 To support that applications for restitution are treated as applications for execution and governed by Article 182 of the Indian Limitation Act. Relied upon to affirm that restitution-applications are within Article 182's scope for limitation purposes.
Muthukaruppan Chettiar v. Annamalai (1933) I.L.R. 1 Rang. 275 Same proposition as above (treatment of restitution as execution for limitation). Used as supporting authority for applying Article 182 to restitution-applications.
Pathak Bhaunath Singh v. Thakur Kedar Nath Singh (1934) I.L.R. 13 Pat. 411 (F.B.) Same proposition: precedential support that restitution-applications fall under Article 182 limitation rules. Relied upon as part of the regional practice and authority endorsing Article 182's application.
Nagendra Nath Dey v. Suresh Chandra Dey (1932) 63 M.L.J. 329 : L.R. 59 I.A. 283 : I.L.R. 60 Cal. 1 (P.C.) That the word "appeal" in Article 182 includes revisions for limitation computation. Cited to note that if the relevant order had been the subject of revision, limitation would start from the date of the final order in revision; the Court held this was not the case here.
Pattannayya v. Pattayya (1925) 50 M.L.J. 215 : 1926 M 453 Principle that where an earlier application was wrongly dismissed or not properly disposed of, a later application may be treated as continuation/revival. One of several authorities the appellant relied on for the proposition that a wrong return/dismissal does not make the prior application finally disposed of.
Appavoo Nainar v. Lakshmana Reddi (1933) 65 M.L.J. 305 : 1933 M 745 Same principle as Pattannayya: wrongful dismissal/absence of proper disposal allows continuation. Relied upon with other cases to support treating the 1925 application as not finally disposed.
Ayisa Umma v. P.K. Abdulla (1923) 76 I.C. 126 : 1924 M 178 Same principle about wrongful dismissal or non-disposal of earlier applications. Included among authorities establishing the principle relied upon by the appellant.
Krishnakaminee Debee v. Gireeshchandra Mandal (1935) I.L.R. 63 Cal. 57 : 1936 Cal. 239 Same principle regarding continuation/revival where earlier application was not properly disposed of. Counted among the cases supporting the appellant's submission.
Madhusudhan Kowor v. Girindra Narayan Singha (1925) 87 I.C. 561 : 1925 Cal. 1185 Same principle: wrongful disposal does not bar continuation/revival. Relied upon as part of the consistent line of authority the appellant cited.
Muhammad Abu Bakkar Maracair v. Ramakrishna Chettiar (1932) 64 M.L.J. 401 Used to fortify the conclusion that an application not finally disposed of may be treated as pending. The Court described being "fortified" by this decision in concluding the 1925 application was not finally disposed of.
Sundaramma v. Abdul Khadar (1932) 64 M.L.J. 664 : I.L.R. 56 Mad. 490 (F.B.) Cited by respondent in support of the contention that laches/long delay can disentitle relief. The Court found the observations in this case only summarized a Privy Council decision and did not require detailed consideration for the present facts.
Jagadisan Pillai v. Narayanan Chettiar (1935) 71 M.L.J. 180 Cited for the proposition that long delay caused by the decree-holder's own negligence can bar relief. The Court noted the facts of that case were entirely different and did not support the respondent's position here.
Kamar-ud-din Ahmad v. Jawahir Lal (1905) 15 M.L.J. 258 : L.R. 32 I.A. 102 : I.L.R. 27 All. 334 (P.C.) Privy Council authority holding that a first petition for execution was not finally disposed of; subsequent application could be a revival. Cited indirectly (via Sundaramma) as an authority on whether an earlier execution petition was finally disposed of; the Court considered its applicability in context.

Court's Reasoning and Analysis

The Court proceeded in stages, applying legal principles strictly as developed in the cited authorities and as required by the Indian Limitation Act.

1. On limitation: The Court accepted that applications for restitution have been treated as applications for execution and are governed by Article 182 of the Indian Limitation Act (relying on Somasundaram and related authorities). The Court also noted the principle that the word "appeal" in Article 182 may include revisions (Nagendra Nath Dey), but held that this principle did not alter the starting point for limitation in this case because the reversing order of 9 July 1924 was not itself the subject of a revision that could affect commencement of limitation. The cause of action for restitution therefore accrued when the appellate order accepting the defendant's appeal was made in July 1924, and that order became final because it was not appealed.

2. On the 1928 application: The Court treated the 1928 petition as of little assistance to the appellant because it was returned for compliance with requirements and was not re-presented within a reasonable time; thus it could not be said to preserve the appellant's rights for the later period in a way sufficient to defeat limitation.

3. On the central 13 November 1925 application: The Court focused on whether that application should still be deemed pending. The executing Court had returned the petition on 18 November 1925 on the ground that an interim stay had been granted. The opinion characterizes that order as "clearly a wrong order" because an application returned in those circumstances should have been retained in Court and any legally appropriate order should have been made on it. No final order, as required by Article 182(5) of the Indian Limitation Act, was passed on the 1925 application. The Court invoked the established principle (as reflected in several authorities) that where a prior application was dismissed or returned wrongfully or was not properly disposed of, a later application may be treated as a continuation or revival of the earlier proceeding.

The Court rejected the respondent's contention that a returned application necessarily becomes non est and cannot be relied upon later. It reasoned that there was no legal justification for treating the 1925 application as finally disposed of when the executing Court had no proper basis for returning it on the ground of the interim stay; hence the absence of a physical presence on the file does not preclude treating it as pending.

4. On laches/delay: The respondent argued the appellant should be disentitled on equitable grounds of laches. The Court considered this but held that the interruption to the appellant's prosecution of his rights was not due to any default or laches of the appellant but resulted from an interim stay obtained by the respondent and the executing Court's wrongful return of the petition. Moreover, the Court stated that equitable doctrines of laches (an equitable defence applied by English courts) cannot be allowed to defeat a party's legal rights when the relief sought is a legal remedy governed by a statute of limitation. The Court distinguished the cases relied upon by the respondent as either not directly on point or factually different.

5. Conclusion of analysis: On the combined considerations above, the Court concluded the 1925 petition had not been finally disposed of, the later 1934 petition could be treated as a reminder or continuation of the 1925 application, and the defence of laches was inapplicable under the circumstances presented.

Holding and Implications

Core Ruling: THE APPEAL IS ACCEPTED (APPEAL ALLOWED).

Consequences and immediate effects:

  • The Court directed that the case be sent back to the executing Court for disposal of the application made by the appellant on 13 November 1925.
  • The Court held that the 13 November 1925 application must be treated as not finally disposed of and that the 1934 application may be regarded as either a reminder or a continuance of the 1925 application.
  • The Court rejected the respondent's equitable defence of laches and delay in the circumstances of this case, holding that interruption was not due to the appellant's default and that equitable laches is not applicable to defeat a legal right governed by statute of limitation.
  • Costs: In the peculiar circumstances the Court ordered that parties shall bear their own costs throughout.

Broader precedent: The opinion does not state that it establishes any new principle of law beyond application of existing authorities; its practical effect is to require the executing Court to consider and decide the 1925 petition on the merits. No novel rule beyond the application of the cited authorities and statutory provisions is articulated.

Show full summary ...

    Krishnamachari v. Chengalraya Naidu

    1. The main question raised by the appellant in this appeal is whether an application for restitution made on the 13th November, 1925, in consequence of an order passed on appeal on the 9th July, 1924, and returned by the Court on the ground that an order of an interim injunction restraining the applicant from recovering the amount deposited by him for costs was still in force is still undecided and should therefore be ordered to be proceeded with. Two more applications for restitution were presented by the appellant in 1928 and in 1934. They will have to be incidentally considered but as the facts which are going to be stated will show, the decision of this appeal solely depends on the effect of the order passed on the application presented on the 13th November, 1925.

    2. A preliminary decree for sale instead of redemption of a usufructuary mortgage was passed by a mistake on the 8th November, 192? and costs were ordered to be paid by all the defendants, who were five in number, to the plaintiff. The plaintiff (decree-holder) applied for the recovery of costs on the 11th October, 1923, but the fifth defendant who is the appellant in the present appeal objected on the ground that the decree was preliminary in character and was therefore inexecutable. This objection was overruled by the execution Court. The fifth defendant preferred an appeal against this order in which he was successful and the order of the executing Court was reversed on the 9th July, 1924. In the meantime costs which had been awarded to the plaintiff had been recovered by him from the fifth defendant who applied for restitution after his appeal had been accepted (C.M.P. No. 1257 of 1924). An order for restitution was passed by the executing Court on the 22nd January, 1925. This was appealed against but it was confirmed by the appellate Court. The plaintiff then applied on the 11th November, 1925, for an amendment of the preliminary decree and prayed that the decree for sale, which had been erroneously passed by the Court, be converted into a decree for redemption (C.M.P. No. 357 of 1925). On the same date he applied for a temporary injunction restraining the fifth defendant from realising the costs paid by him, from the plaintiff (C.M.P. No. 390 of 1925). An ex parte order was passed by the execution Court and an interim stay was ordered. The fifth defendant, apparently without any knowledge of this order, presented another application on the 13th November, 1925, asking for restitution but instead of keeping it on the file or adjourning it to a future date, a curious procedure was observed by the executing Court. The petition for restitution was returned on the 18th November, 1925, to the fifth defendant on the ground that the order granting interim stay had been passed and was in force. It is on the effect of this order that the decision of this appeal depends. The application for amendment made by the plaintiff was eventually allowed on the 8th March, 1926, and the interim stay was confirmed by another order on the same date. The firth defendant made an application for revision against the order granting the plaintiff leave to amend but this was dismissed by the High Court on the 28th April, 1931. Before this revision was decided, the fifth defendant had filed another petition for restitution and had attached the application dated the 13th November, 1925, along with this application. This was again returned to him for compliance with certain requirements and was not re-presented. On the 28th April, 1934, a fresh petition for restitution was filed by the fifth defendant and I have to decide first whether this is within time.

    3. Having been presented after about six years of the application made in 1928 it is apparently barred, but it has been contended that the limitation for this application started on the date on which the appellant's revision was ordered by the High Court to be dismissed. Applications for restitution have been treated in this Presidency as applications for execution and would therefore be governed by Article 182 of the Indian Limitation Act. See Somasundaram v. Chokkalingam (1916) I.L.R. 40 Mad. 780. The same view has prevailed in Rangoon and Patna. Muthukaruppan Chettiar v. Annamalai (1933) I.L.R. 1 Rang. 275 and Pathak Bhaunath Singh v. Thakur Kedar Nath Singh (1934) I.L.R. 13 Pat. 411 (F.B.). It is true that the word 'appeal' occurring in Article 182 of the Limitation Act has been held to include revisions, Nagendra Nath Dey v. Suresh Chandra Dey (1932) 63 M.L.J. 329 : L.R. 59 I.A. 283 : I.L.R. 60 Cal. 1 (P.C.) and if the order, in pursuance of which the application for restitution was made had been the subject of a revision in the High Court, limitation would have started from the date on which the final order was passed by this Court. This is however not the case. The first decree was held to be in-executable by the appellate Court in July, 1924. This order was not appealed against and became final. The cause of action for making an application for refund thus accrued to the appellant on the date when the appeal was accepted in 1924. This was independent of the application made or order passed by the Court for amendment of the decree. If the order passed on appeal in July, 1924, were final and could not be affected by the subsequent amendment, the pendency of a revision petition by the plaintiff against the order allowing the decree to be amended could not possibly help him. The revision was in respect of a collateral matter with which we are not at present concerned. The contention that the starting point of the period of limitation should be the date of the order passed by this Court in 1931 on revision has therefore no force.

    4. The question then is, if the applications made by the defendant appellant in 1925 or 1928 are of any help to him. The application made in 1928 could not be of much use as the present application was made six years later. Moreover in view of the fact that it was returned for complying with certain requirements and was not re-presented within a reasonable time even if none was fixed by the Court, it can't be held to be of any avail to the appellant now.

    5. This brings me to the main question whether the application of the 13th November, 1925, should still be deemed to be pending as no final orders required by Article 182(5) of the Indian Limitation Act were passed on that application. This would depend on the effect of the order passed by the Court returning the application to the defendant-appellant in consequence of the interim stay being then in force. This was clearly a wrong order and it is therefore contended that the application should still be deemed to be undisposed of and thus held to be pending. The learned Counsel for the appellant has relied on a number of cases which lay down that in order to entitle a petitioner to treat an application as in continuation or one for revival of a previous application it should be found that the order dismissing the first application was wrong or that the first application was not properly disposed of. See Pattannayya v. Pattayya (1925) 50 M.L.J. 215 : 1926 M 453, Appavoo Nainar v. Lakshmana Reddi (1933) 65 M.L.J. 305 : 1933 M 745, Ayisa Umma v. P.K. Abdulla (1923) 76 I.C. 126 : 1924 M 178, Krishnakaminee Debee v. Gireeshchandra Mandal (1935) I.L.R. 63 Cal. 57 : 1936 Cal. 239 and Madhusudhan Kowor v. Girindra Narayan Singha (1925) 87 I.C. 561 : 1925 Cal. 1185. The principle on which these cases were decided is beyond controversy; but they have been attempted to be distinguished by the learned Counsel for the respondent on the ground that the orders passed on the applications were not only illegal but the applications were physically in Court. He contends that when the applications had been returned to the appellant either improperly in 1925 or when the application returned for compliance with certain requirements in 1928 was not re-presented by him within a reasonable time it must be considered to be non est in the eye of the law and cannot be taken advantage of by the appellant after the lapse of about 9 years. The contention is undoubtedly plausible but is there any warrant in law for me to give effect to it when I find that the Court was not justified in returning the application to appellant on the ground that an interim order for stay had been passed by it two days before? The application should have been retained in Court and any legal order that the executing Court might have considered to be proper and which it was competent to give should have been passed thereon. As it is, no final order was passed on this application as required by Article 182(5) of the Indian Limitation Act. In the absence of any legal or proper order I am constrained to come to the conclusion that the application although not physically in Court must be yet treated to be pending and undisposed of. There is no duty cast on a decree-holder to make an application to revive an execution petition and the application of 1934 must be in the absence of any such duty, taken to be a kind of reminder to the Court to take up his application for execution or restitution which has not been disposed of and to decide it according to law. I am fortified in this conclusion by a decision given by my learned brother, Madhavan Nair, J., and reported in Muhammad Abu Bakkar Maracair v. Ramakrishna Chettiar (1932) 64 M.L.J. 401.

    6. In the end it has been contended on behalf of the respondent that even if the application for restitution made in 1925 is considered to be pending up till now, the appellant should, none-the less, be held to have been guilty of laches and delay and should therefore be held disentitled to make the application almost 10 years after the order was passed which entitles him to get restitution. Reliance has been placed in this connection on two cases reported in Sundaramma v. Abdul Khadar (1932) 64 M.L.J. 664 : I.L.R. 56 Mad. 490 (F.B.) and Jagadisan Pillai v. Narayanan Chettiar (1935) 71 M.L.J. 180. It is hardly necessary for me to examine these cases in any detail as I find that this question was not being considered in either of them. The observations in the first case were made in summing up the effect of a decision by their Lordships of the Privy Council in Kamar-ud-din Ahmad v. Jawahir Lal (1905) 15 M.L.J. 258 : L.R. 32 I.A. 102 : I.L.R. 27 All. 334 (P.C.), in which it had been held that the first petition for execution was not finally disposed of and that the subsequent application was both in substance and in form made with the object of reviving and carrying through a pending execution which was suspended by no act or default of the decree-holder. The facts in the second case were entirely different. No petition for execution was pending or undisposed of in that case and it was found that the decree-holder could have applied for execution at any time after March, 1924, and the delay from March, 1924, to August, 1932, was:

    On account of his own negligence or laches and not to any defect in the C decree or to any circumstances connected with the decree which prevented him from putting in an application for execution.

    7. I find, on the other hand, that in the present case, the petition for execution filed by the appellant has not been finally disposed of so far and the interruption was not occasioned by any default or laches of the appellant. The interim stay was obtained by the respondent and it was in consequence of this stay that the application for restitution was illegally returned to the appellant.

    8. Moreover, the objection as to laches or delay, based as it is on the equitable doctrine of English Courts cannot be allowed to prevail when the legal rights of a party to a proceeding come up before the Court for determination. It might have been different if the appellant were asking for an equitable relief. He is asking for a legal relief in this case and the only question is whether this is barred by the statute of limitation. There is thus no room in such cases for the application of any equitable defence such as suggested by the learned Counsel for the respondent.

    9. In the circumstances the application made by the appellant in 1925 must be held not to have been disposed of and the application made in 1934 may be regarded either in the nature of a reminder or as one for continuance thereof.

    10. The result is that this appeal must be accepted and the case sent back to the executing Court for disposal of the application made by the appellant in 1925.

    11. In the peculiar circumstances of the case, however, I shall leave the parties to bear their own costs throughout.

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    Comments

    Krishnamachari v. Chengalraya Naidu
    (Dec 2, 1938)