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Lekshmana Perumal Nadar v. Sudalamuthu Nadar
Factual and Procedural Background
The second defendant in O.S. No. 845 of 1115 (Nagercoil District Munsiff Court) is the appellant before the court. A decree in that suit was passed on 31st Kanni 1116. The decree-holder filed an execution petition on 26th Thulam 1120. The second defendant objected to execution on the ground that the decree was barred by limitation.
Procedural chronology relevant to the objection:
- 19th Thulam 1116: second defendant filed an application under Order IX, Rule 13 (O.9, R.13) to set aside the decree and to restore the suit to file.
- 29th Edavam 1117: the trial court dismissed that O.9, R.13 application.
- 4th Karkadagam 1118: the District Court dismissed the second defendant's appeal against that dismissal.
- 1119: second defendant filed C.R.P. No. 192.
- 27th Chingam 1120: the High Court dismissed the C.R.P.
The decree-holder argued that the period of limitation for execution should be computed from 27th Chingam 1120 (date of the High Court's disposal). The executing court accepted this position and overruled the limitation plea; the lower appellate court confirmed that order. The present (second) appeal challenges that confirmation.
Legal Issues Presented
- Whether the pendency or prosecution of an application under Order IX, Rule 13 to set aside a decree affects (i.e., suspends or extends) the period of limitation prescribed for execution of that decree.
Arguments of the Parties
Appellant (Second Defendant)'s Arguments
- The decree is barred by limitation; the execution petition is therefore not maintainable.
- Implicit in the objection was that the execution should not proceed because the decree-holder's petition was filed beyond the applicable period measured from the decree date.
Decree-holder's Arguments
- The period during which the second defendant prosecuted his O.9, R.13 application should be excluded from computation of limitation for execution.
- In particular, the decree-holder argued that limitation should be computed from the date of the final order disposing of the defendant's proceedings (the High Court's dismissal on 27th Chingam 1120), i.e., that Article 166 (Travancore Limitation Act) / Article 182 (Indian Limitation Act) contemplates that where "there has been an appeal" limitation starts from the date of the final decree or order referred to in column 3, clause (2), and that "appeal" should be read broadly to include appeals against orders on applications under O.9, R.13.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jivaji v. Ramachandra, I.L.R. 16 Bom. 123 | Unsuccessful attempts by defendant to set aside ex parte decree do not extend period prescribed by law for execution of the decree. | The court relied on this ruling to support the proposition that pendency of proceedings to set aside a decree does not suspend the limitation period for execution. |
| Ouseph v. Mariam, 18 T.L.J. 114 (Full Bench Travancore High Court) | Held that mere pendency or proceedings towards vacating a decree does not operate as an obstruction preventing execution so as to extend the period of limitation. | The court followed this Full Bench decision as supporting the view that pendency of O.9, R.13 proceedings does not suspend limitation for execution. |
| Chidambarathanu Pillai v. Ponnayya, 22 T.L.J. 666 | Same effect as Ouseph: pendency of proceedings to set aside decree does not extend execution limitation. | Cited as consistent authority for the court's view that prosecution of O.9, R.13 proceedings does not exclude time from computation. |
| Karutha Kunju v. K. Charayan, 30 T.L.J. 70 | Held pendency of an application under O.9, R.13 does not suspend period of limitation for execution. | Followed as supporting authority for denying exclusion of time during O.9, R.13 proceedings. |
| Kunjan Kanda v. Neelakantan, 1948 T.L.R. 73 | Held the pendency of O.9, R.13 proceedings does not suspend limitation for execution. | Relied upon as corroborative authority; the court saw no reason to differ from its view. |
| Sukhanandan v. Pandeyi, A.I.R. 1932 All. 601 | Interpreting analogous provisions and treating "appeal" as referring to appeal against decree sought to be executed. | Included among several High Court decisions predominantly supporting the court's position on interpretation of the relevant Article. |
| Haris Chandra v. Pines Chandra, A.I.R. 1943 Cal. 365 | Support for the interpretation that appeals contemplated are those against the decree sought to be executed. | Relied on as part of the predominant view followed by the court. |
| Mahadeo v. Fatuniya, A.I.R. 1948 Bom. 337 | Supportive authority on the interpretation of appeal-related starting points for limitation. | Cited among decisions that the court preferred on the construction of the Article in question. |
| Abrahim Pilla v. Isidore, 30 T.L.J. 900 | Another case cited in support of the same general rule on non-suspension of limitation during O.9, R.13 proceedings. | Utilized as confirming authority in the array of cases the court followed. |
| Firm Badhraj v. Bhagwan Das, A.I.R. 1937 Pat. 337 | Held that an appeal by defendant against order dismissing his O.9, R.13 application comes within "where there has been an appeal" and limitation commences from date of final order in that appeal (contrary view). | The court noted this contrary decision but explicitly disagreed with it and declined to follow it. |
| Narmadabai Narayanshet v. Hidayatalli Saheballi (Narmadabai v. Hidayathalli), A.I.R. 1949 Bom. 115 | Adopted view similar to Firm Badhraj that appeals against orders dismissing O.9, R.13 applications fall within "where there has been an appeal". | The court recorded this contrary view but respectfully dissented and preferred the other line of authorities. |
| Nagendra Nath v. Suresh, A.I.R. 1932 P.C. 165 (Privy Council) | Privy Council held that any application by a party to an appellate court asking it to set aside or revise a subordinate court's decision is an appeal in ordinary acceptation, even if irregular or incompetent. | The court examined this authority, observed that the Privy Council did not decide the precise question before this court, and declined to extend Nagendra Nath so as to include appeals in extraneous proceedings as starting points for execution limitation; thus the court distinguished and did not follow Nagendra Nath for that broader proposition. |
Court's Reasoning and Analysis
The court's analysis proceeds in two principal strands: (1) the effect of pendency of O.9, R.13 proceedings on limitation for execution; and (2) the proper construction of Article 166 of the Travancore Limitation Act (corresponding to Article 182 of the Indian Limitation Act) regarding the starting point where "there has been an appeal."
1. On exclusion of time during O.9, R.13 proceedings: the court held that mere filing and prosecution of an application under O.9, R.13 to set aside a decree does not, by itself, operate as a bar to execution or as an obstruction suspending the decree-holder's right to execute. Exclusion of time from limitation is permissible only where execution is actually suspended by an order restraining it; Section 15 of the Limitation Act (Travancore) provides for such exclusion when execution is suspended by order. In the absence of any such restraining order, there is no basis to exclude any period from the normal period of limitation. The court supported this with citation of several authorities (e.g., Jivaji v. Ramachandra; Ouseph v. Mariam; Chidambarathanu Pillai v. Ponnayya; Karutha Kunju v. K. Charayan; Kunjan Kanda v. Neelakantan) which hold the same proposition.
2. On the construction of Article 166 (column 3, clause (2)): the court examined the text of the Article and the structure of column 3, which prescribes different starting points depending on whether there has been no appeal, a review, an amendment, or an appeal. The court reasoned that clause (2) (which speaks of cases "where there has been an appeal") must be read as referring to an appeal against the decree or order sought to be executed — i.e., an appeal that affects the decree itself — and not to appeals arising out of extraneous proceedings (such as an appeal against an order dismissing an O.9, R.13 application). The court emphasized that where there is an appeal against the decree, what is executed is the decree of the appellate court; hence the starting point in such cases is the final order of the appellate court or the withdrawal of the appeal. By contrast, appeals or revisions that are continuations of proceedings under O.9, R.13 are part of the extraneous proceedings and do not alter the starting point for the execution period.
3. On contrary authorities and the Privy Council decision: the court acknowledged contrary decisions (Firm Badhraj; Narmadabai) which, relying mainly on the Privy Council's ruling in Nagendra Nath v. Suresh, treated applications to appellate courts as appeals for the purpose of computing limitation. The court carefully examined Nagendra Nath and concluded that the Privy Council did not decide the precise question whether continuing prosecution of O.9, R.13 proceedings suspends execution limitation; instead, Nagendra Nath addressed whether an irregular or incompetent attempt to appeal should nevertheless be treated as an appeal. Applying the Privy Council's interpretive approach (strict grammatical meaning) to the Article as a whole, the court concluded that Nagendra Nath did not support extending clause (2) to appeals originating in extraneous proceedings and therefore respectfully dissented from the contrary High Court decisions.
4. Application to the present facts: because there was no order restraining execution of the decree in the present case, the court held that limitation began to run from the date of the decree itself (31st Kanni 1116). The execution petition filed on 26th Thulam 1120 was therefore beyond three years from the decree date and barred by limitation.
Holding and Implications
Holding: Appeal allowed; the execution petition is dismissed as being barred by limitation.
Consequences and implications:
- Direct effect on the parties: the lower court's order confirming execution was reversed, the second defendant's appeal was allowed with costs, and the decree-holder's execution petition was dismissed as time-barred.
- On legal principle: the court affirmed the line of authority that mere pendency or prosecution of an application under O.9, R.13 to set aside a decree (and appeals/revisions continuing those proceedings) does not suspend or extend the period of limitation for executing the decree, absent an order specifically restraining execution. The court expressly declined to follow contrary decisions that would treat appeals against orders dismissing O.9, R.13 applications as starting points for execution limitation.
- No novel precedent was proclaimed beyond the court's preference for and reaffirmation of existing authorities holding that O.9, R.13 proceedings do not by themselves suspend execution limitation; the decision reverses the lower court and applies those established principles to the facts.
1. The second defendant in O.S. No. 845 of 1115 on the file of the Nagercoil District Munsiff 'Court is the appellant. The decree in the case was passed on 31st Kanni 1116. The execution petition filed by the decree-holder on 26th Thulam 1120 was objected to by the second defendant on the ground that the decree had already become barred by limitation. In answer to this objection, the decree-holder contended that the starting point of limitation is the date of the final order by which the second defendant's application set aside the decree under O. 9, R.13 of the Code of Civil Procedure, was dismissed. On 19th Thulam 1116 the second defendant had filed an application under O. 9, R.13 to set aside the decree and to restore the suit to file. That application was dismissed by the trial court on 29th Edavam 1117. The second defendant's appeal against that order was dismissed by the District Court on 4th Karkadagam 1118. Against such order of dismissal, C.R.P. No. 192 of 1119 had been filed by the second defendant. The High Court dismissed the C.R.P. on 27th Chingam 1120. The position taken up by the decree-holder is that the period of limitation for the execution of the decree in the case should be computed from 27th Chingam 1120. The executing court accepted this position and overruled the plea of limitation raised by the second defendant. The order was confirmed by the lower appellate court. Hence this second appeal.
2. The only question for decision in this appeal is whether the pendency of an application under O. 9, R. 13 to set aside the decree in the case, will in any way affect the period of limitation prescribed for the execution of the decree. The first position taken up by the decree-holder is that the period during which the second defendant was prosecuting his application under O. 9, R. 13, has to be excluded from the period of limitation prescribed for the execution of the decree. The mere filing of an application by the defendant to set aside the decree, does not operate as bar against the decree-holder's right to execute the decree unless such application is followed by an order restraining such execution. The period during which execution is suspended by such an order will be excluded from the period of limitation prescribed for the execution of the decree. S.15 of the Limitation Act (Act VI of 1100 of Travancore) provides for such exclusion. In the absence of any order restraining the execution of the decree, there is no scope for excluding any period from the normal period of limitation for execution of the decree. In Jivaji v. Ramachandra I.L.R. 16 Bom. 123 it was ruled that the unsuccessful attempts made by the defendant to set aside the exparte decree could not have the effect of extending the period prescribed by law for execution of the decree. This ruling was followed by a Full Bench of the Travancore High Court in Ouseph v. Mariam 18 T.L.J. 114 where it was held that the mere pendency or proceedings towards vacating the decree, does not operate as an obstruction preventing the execution of that decree so as to extend the period of limitation for execution of such decree. The ruling in Chidambarathanu Pillai v. Ponnayya 22 T.L.J. 666 is also the same effect. In Karutha Kunju v. K. Charayan 30 T.L.J. 70 and in Kunjan Kanda v. Neelakantan 1948 T.L.R.73 also it was held that the pendency of an application under 0. 9, R.13 to set aside the decree, could not suspend the period of limitation for the execution of the decree. We see no reason to differ from the view consistently taken in all these decisions. Accordingly we hold that the decree-holder in the present case is not entitled to get any exclusion of the period during which the second defendant-appellant was prosecuting his application under 0. 9, R. 13, from the normal period available for the execution of the decree.
3. Another position taken up by the decree-holder and which found favour with the lower courts is that the time prescribed by Art. 166 of the Travancore Limitation Act (corresponding to Art. 182 of the Indian Limitation Act) begins to run only from the date of the final decree or order referred to in Cl. (2) of third column in that Article. The provisions contained in Art. 166 are as follows:
Column 2 prescribes the period of limitation for the execution of the decree or order referred to in column 1, and column 3 specifies the starting point of such limitation. On behalf of the decree-holder it was argued that the expression "where there has been an appeal" used in column 3, Cl. (2), is not used in the narrow and restricted sense to denote the appeal against the decree or order sought to be executed, but it is used in a wider sense to include even appeals against orders on applications under 0. 9, R. 13, to set aside decrees. We see no force or substance in this contention. Art. 166 read as a whole leaves no scope for doubt that the appeal referred to in Cl. (2) of the column 3 is the appeal against the decree order sought to be executed and not an appeal against an order in any extraneous proceedings relating to that decree or order. Column 3 prescribes four different starting points of limitation for the execution of the decree or order referred to in column 1. As per clause (1) of column 3, limitation will begin to run from the date of the decree or order. This clause will operate where the decree or order has not been subjected to any appeal or review or amendment. Cl. (3) prescribes the starting point of limitation in cases where there has been a review of the judgment on which the decree is based, and states that limitation will commence to run from the date of the decision passed in the review. Cl. (4) prescribes the starting point of limitation in cases where there has been an amendment of the decree and states that limitation will run from the date of such amendment. Necessarily it follows that the starting point of limitation prescribed by Cl. (2) is in respect of cases where there has been an appeal against the decree or order. In such cases limitation will run from the date of the final decree or order of the appellate court or the date of the withdrawal of the appeal. It has to be remembered that what is executed in such cases is the decree of the appellate court, and not any order passed by that court in respect of any extraneous proceedings relating to that decree. It follows, therefore, that the reference to 'appeal' in Cl. (2) of column 3 cannot be to an appeal arising out of such extraneous proceedings. It has already been found that the mere pendency of an application under 0. 9, R. 13, will not suspend the period of limitation for the execution of the decree. Any appeal or revision against the order dismissing such an application will be only a continuation of the proceedings under 0. 9, R. 13, and as such, the pendency of such appeal or revision cannot also suspend the period of limitation for the execution of the decree. Considered in all these aspects, it is clear that the 'appeal' referred to in Cl. (2) of the column 3 of Art. 166, is the appeal against the decree sought to be executed, and not to an appeal against an order dismissing an application under 0. 9, R.13 to set aside the decree. The view taken by the several High Courts in India is predominantly in support of this position. Vide Jivaji v. Ramachandra I.L.R. 16 Bom. 123, Sukhanandan v. Pandeyi A.I.R. 1932 All. 601, Haris Chandra v. Pines Chandra A.I.R. 1943 Cal. 365, Mahadeo v. Fatuniya A.I.R. 1948 Bom. 337, Abrahim Pilla v. Isidore 30 T.L.J. 900 and Kunjan Kanda v. Neelakantan 1948 T.L.R. 73.
4. A contrary view has been taken in Firm Badhraj v. Bhagwan Das A.I.R. 1937 Pat. 337 and in Narmadabai Narayanshet…Applicant; v. Hidayatalli Saheballi…Opponent. AIR 1949 Bom. 115. In both these cases, it has been ruled that an appeal preferred by the defendant against an order dismissing his application under 0. 9, R. 13, to set aside the decree, comes within the scope of the expression "where there has been an appeal" as used in Cl. (2) of column 3 of Art. 182 of the Limitation Act and that therefore the period of limitation for the execution of the decree commences from the date of the final order in that appeal. It was mainly on the authority of the Privy Council ruling in Nagendra Nath v. Suresh A.I.R. 1932 P.C.165 that such a view was taken in those cases. But it is seen that the question whether the prosecution of an application under 0. 9, R.13 to set aside the decree would suspend the period of limitation for the execution of the decree and whether limitation will commence only from the date of the order of the appellate court disposing of such an application, had not arisen for consideration, nor were such questions decided by the Privy Council in Nagendranath v. Suresh A.I.R. 1932 P.C.165. In that case there was an appeal against the decree; but the appeal was not against the whole decree and all the necessary parties were not impleaded in the appeal. Proper court-fee had not also been paid. On account of such defect and irregularities, it was contended that it was not an appeal at all, but merely an abortive attempt to appeal and that as such the period of limitation for the execution of the decree could not be said to commence from the date of the disposal of that appeal. Overruling the objections, the Privy Council held that,
"any application by a party to an appellate court asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent".
According it was ruled that the period of limitation for execution commenced from the date of the disposal of the appeal. In dealing with the question Their Lordships had to construe the expression "where there has been an appeal" used in Cl. (2) of column 3 of Art. 182, and in doing so it was stated as follows:
"There is, in Their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say: The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the word is, their Lordships think, the only safe guide".
To say that by laying down these general rules of interpretation Their Lordships of the Privy Council intended to mean that the expression "where there has been an appeal" used in Cl. (2) of column 3 of Art. 182 is comprehensive enough to include even an appeal against an order dismissing an application to set aside the decree, would be going too far. Reading the article as a whole and construing it in accordance with the principles laid down by Their Lordships of the Privy Council, it is clear that the expression refers only to the appeal against the decree sought to be executed, and not to appeals arising out of extraneous proceedings. We would therefore respectfully dissent from the view taken in Firm Badhraj v. Bhagwan Das A.I.R. 1937 Pat. 337 and Narmadabai v. Hidayathalli A.I.R. 1949 Bom. 115 and would prefer to follow the ruling in the other cases cited above.
5. Even though the second defendant had filed an application under 0. 9, R. 13, C.P.C. to set aside the decree in this case, there was no order restraining its execution. Hence the period of limitation began to run from the date of the decree itself, that is, from 31st Kanni 1116. It is an unregistered decree. The present execution petition filed on 26th Thulam 1120, is beyond three years from the date of the decree, and as such, it is barred by limitation.
6. In the result this second appeal is allowed with costs and in reversal of the order of the lower court, the decree-holder's execution petition is dismissed as being out of time.
Appeal allowed.
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