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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: N. Varadaraja Iyengar
Judges
  • Koshi, C.J
  • Subramania Iyer
  • M.S Menon, JJ.
Acts
  • Section 78(2) of the Provincial Insolvency Act, 1920 (which corresponds to Section 30 of the Travancore Insolvency Act 8 of 1108) enacts as follows:(3)
  • S. 78(2). Sections 33, 34 and 49 of the Provinical Insolvency Act (corresponding sections of the Travancore Insolvency Act
  • 12 years' rule enacted in Section 48 of the CPC (Section 41 of the CPC, (Travancore)
  • SECTION 19 LIMITATION ACT
  • 12 years' rule of limitation prescribed by Section 48 of the CPC.
  • S. 47 (corresponding section of the Travancore Insolvency Act
  • sub-s. 2 of section 28 Travancore Insolvency Act)
  • SECTION 19 LIMITATION ACT
  • PROVINCIAL INSOLVENCY ACT 1920
  • sub-section (2) of section 28)
  • Act.16. Section 28, sub-s. 6
  • limits.20. Section 78(2)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: N. Varadaraja Iyengar
Judges
  • Koshi, C.J
  • Subramania Iyer
  • M.S Menon, JJ.
Acts
  • Section 78(2) of the Provincial Insolvency Act, 1920 (which corresponds to Section 30 of the Travancore Insolvency Act 8 of 1108) enacts as follows:(3)
  • S. 78(2). Sections 33, 34 and 49 of the Provinical Insolvency Act (corresponding sections of the Travancore Insolvency Act
  • 12 years' rule enacted in Section 48 of the CPC (Section 41 of the CPC, (Travancore)
  • SECTION 19 LIMITATION ACT
  • 12 years' rule of limitation prescribed by Section 48 of the CPC.
  • S. 47 (corresponding section of the Travancore Insolvency Act
  • sub-s. 2 of section 28 Travancore Insolvency Act)
  • SECTION 19 LIMITATION ACT
  • PROVINCIAL INSOLVENCY ACT 1920
  • sub-section (2) of section 28)
  • Act.16. Section 28, sub-s. 6
  • limits.20. Section 78(2)
See more information ...
Smart Summary

Structured Summary of the Opinion (Koshi, C.J.)

Factual and Procedural Background

The assignee decree-holder in O.S. No. 923 of 1108 (on the file of the Ferumbavoor District Munsiff's Court) appealed against an order of the execution court dated 9-12-1121 (referred to in the opinion as 9-12-1123 in the opening sentence, but the operative chronology shows 9-12-1121) that held his execution application filed 30-12-1121 to be barred by the 12 years' rule in Section 48 of the Civil Procedure Code (CPC) (Section 41 of the CPC, Travancore). The Division Bench referred the matter to a Full Bench after calling for preliminary findings from the execution court.

The decree under execution was a decree charged on immovable properties passed by the Ferumbavoor District Munsiffs Court on 21-2-1109. Before the first execution application, territorial jurisdiction over the properties was transferred from Ferumbavoor to the Parur District Munsiff's Court. The first execution petition (25-7-1109) filed at Perumbavoor requested several reliefs and that records be sent to Parur; the Perumbavoor Court sent only a copy of the decree and certificate of non-satisfaction and then "struck off" the execution case.

After papers reached Parur, the decree-holder sought retransmission to Perumbavoor for rateable distribution of certain attached sums. The case was retransferred and remained at Perumbavoor until 28-4-1119 (on that date the decree was still "live"). Subsequent execution applications were made. A later execution petition dated 24-10-1121 was filed before the Parur Court by the assignee-decree-holder (the present appellant); the original decree-holder consented to the transfer and to execution in favour of the appellant.

When the 24-10-1121 petition was taken up, the court believed the decree was under attachments in execution of two other decrees and ordered notices to those attaching decree-holders. The appellant attempted to show those attachments were not in execution of decrees against the decree-holder, but the court remained unsatisfied and on 9-12-1121 ordered notices to be issued and gave a "pay deficit process" deadline to 15-12-1121. The appellant failed to comply and the court "struck off" the execution application on the appointed day.

The present execution petition (the subject of the appeal) was filed on 30-12-1121. On its face it was barred by the 12 years' limitation under Section 48 CPC, more than ten months beyond the 12-year period from the decree (21-2-1109). A purchaser of the secured properties objected that the appellant lacked locus standi; the execution court rejected that challenge. The appellant challenged several grounds upon which the lower court found the petition barred; the Full Bench considered each of these grounds in turn.

Legal Issues Presented

  1. Whether the execution application filed on 30-12-1121 was barred by the 12 years' limitation in Section 48 of the CPC.
  2. Whether the 30-12-1121 application could be treated as a revival or continuation of the earlier execution petition of 24-10-1121 (and thereby escape the limitation bar).
  3. Whether the "struck off" order of 15-12-1121 was a judicial disposal (final order) or void by reason of court mistake, with consequences for revival.
  4. Whether an admission or acknowledgment by the judgment-debtor under Section 19 of the Limitation Act would operate to restart the period of limitation prescribed by Section 48 CPC.
  5. Whether the period from 4-7-1116 (adjudication of insolvency) to 3-5-1119 (annulment of adjudication) should be excluded in computing the 12-year period under Section 48 by virtue of Section 78(2) of the Provincial Insolvency Act (and corresponding Travancore provision), including whether the decree-holder proved his debt in the insolvency proceedings.

Arguments of the Parties

Appellant's Arguments

  • The execution petition filed on 30-12-1121 was in reality a revival or continuance of the earlier petition of 24-10-1121 (i.e., not a fresh petition barred by limitation).
  • The "struck off" dismissal on 15-12-1121 was produced by a mistake of the court and therefore should be regarded as void; the appellant should not be made to suffer for the court's error.
  • An acknowledgment of the decree debt by the judgment-debtor (in an insolvency application in 1114 and in a civil miscellaneous petition on 3-8-1121) operated under Section 19 of the Limitation Act to restart the limitation period applicable to Section 48 CPC.
  • The period during which the judgment-debtor was adjudicated insolvent (4-7-1116 to 3-5-1119) should be excluded in computing the 12-year limitation under Section 48 by operation of Section 78(2) of the Provincial Insolvency Act (corresponding Travancore provision).

Other Parties / Court Below (points raised against appellant)

  • A purchaser of the secured properties objected that the appellant had no locus standi because his purchase occurred after the decree ordering sale.
  • The execution court held the 24-10-1121 petition was judicially disposed of by the order of 15-12-1121 (struck off) for default of the appellant (failure to comply with the notice order), and therefore a later petition could not be treated as a revival.
  • The execution court found that Section 19 of the Limitation Act did not control Section 48 CPC, and that the insolvency period exclusion under Section 78(2) did not apply because the decree-holder did not prove his claim in the insolvency proceedings and secured creditors were entitled to realize security notwithstanding adjudication.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Maikarjan v. Narahari, 25 Bom 337 (PC) Even if a court decides wrongly, the decision stands unless set aside by prescribed legal remedies. The court relied on this principle to hold that a mistaken judicial order (the "struck off" order) does not become void automatically; the appellant should have applied for review or appeal.
Harihar Gir v. Mt. Dulhin, AIR 1940 Pat 432 A previous application must not have been finally dismissed if it is to be treated as pending for purposes of revival. Used to support the conclusion that the 24-10-1121 petition was finally disposed of and therefore could not be treated as pending or revived by the later petition.
Kuruvila v. Kocheepen, 1946 Trav LR 196 Judicial disposal of a subsequent execution petition held to be a continuation of prior applications amounts to final order on prior applications. Cited to show that even if the 24-10-1121 petition were regarded as a revival of earlier petitions, its judicial disposal would conclusively dispose of prior applications.
Mohammathu Ummal… Appellant v. Mohammad Ummal Pathumal & Another… Respondents, AIR 1951 Trav-C. 179 Same as Kuruvila: judicial disposal of a later petition can finalize prior pending applications. Applied to reinforce the view that disposal of the 24-10-1121 petition would operate conclusively against revival of prior petitions.
Maha Raja Bahadur v. A.K. Forbes, AIR 1929 PC 209 Orders on a fresh application signify abandonment of previous applications. Used to support the proposition that if a petition is treated as a fresh application, prior petitions are deemed abandoned and cannot be revived later.
Variath Ouseph v. Ouseph Ouseph, 36 Cochin LR 797 Similar principle: fresh application evidences abandonment of earlier applications. Cited as authority for the conclusion that orders on a fresh execution application prevent subsequent revival of earlier applications.
Sankara Iyer v. Ganapathy Iyer, 37 Cochin LR 358 (FB) Analysis of whether Section 19 Limitation Act controls Section 48 CPC; case law reviewed. Referred to as part of the body of authority holding Section 19 does not control Section 48, supporting the court's view that acknowledgments under Section 19 do not restart Section 48 limitation.
Mathen v. Ouseph, 1947 Trav. LR 185 (FB) Similar review of interaction between Section 19 Limitation Act and Section 48 CPC. Referred to as part of the precedent base supporting the conclusion that Section 19 does not govern Section 48.
Sankaran Raghavan v. Narayanan Kesavan, AIR 1953 Trav-C 539 Affirmed view that Section 19 Limitation Act does not control Section 48 CPC. The court cited this decision to reject the appellant's contention that acknowledgments under Section 19 could restart the Section 48 period.
Sri Ram Kaur v. Rama Prasad Ghosh, AIR 1929 Oudh 71 Insolvency adjudication does not prevent a secured creditor from realising security. Applied to hold that adjudication of insolvency did not bar the decree-holder from execution and therefore the insolvency annulment period did not give an exclusion under Section 78(2) for this decree-holder.
Govind Prasad v. Pawankumar, AIR 1943 PC 98 (Privy Council) For the exclusion under the Insolvency Act provision, creditor must have proved the debt in the prescribed mode (lodging proof). Relied upon to hold that because the decree-holder did not lodge proof of his claim in the insolvency proceedings, the time of adjudication to annulment could not be excluded under Section 78(2).
Sogmull Laehiram, Firm v. Parandhamayya, AIR 1940 Mad 716 Authority supporting requirement that debt must be proved in insolvency proceedings for exclusion to apply. Used to reinforce the conclusion that no exclusion under Section 78(2) was available as decree-holder had not proved claim.
Satyabadi v. Jagannath, AIR 1947 Pat 161 Discussion that the statutory mode of proving debts is one mode but courts sometimes take a liberal view of proof methods. Referenced to acknowledge liberal approaches to "proof" but distinguished: the court nonetheless concluded proof within insolvency proceedings was required for exclusion.
Satyabadi Sahu v. Puri Bank Ltd., AIR 1947 Pat 199 Held that for exclusion under Section 78(2) there must be proof of the debt between adjudication and annulment. Cited to support the position that mere admission by the debtor in insolvency petition is insufficient; proof was required and lacking here.
Palaniyandi v. Palanivel, AIR 1949 Mad 683 Similar position: requirement of proof of debt in insolvency proceedings for exclusion. Applied to buttress the conclusion that exclusion under Section 78(2) did not apply.
Veerayya v. Narasimharao, AIR

Structured Summary of the Opinion (Koshi, C.J.)

Factual and Procedural Background

The assignee decree-holder in O.S. No. 923 of 1108 (on the file of the Ferumbavoor District Munsiff's Court) appealed against an order of the execution court dated 9-12-1121 (the execution court had held the execution application filed on 30-12-1121 to be barred by the 12 years' rule in Section 48 of the Civil Procedure Code (CPC), corresponding to Section 41 of the CPC (Travancore)). The Division Bench referred the matter to a Full Bench after seeking preliminary findings from the execution court.

The decree under execution was charged on immovable properties and was passed on 21-2-1109 by the Ferumbavoor District Munsiff's Court. Before the first execution petition the territorial jurisdiction over the properties was transferred to the Parur District Munsiff's Court. The first execution petition (25-7-1109) filed at Perumbavoor requested several reliefs and sought to send the records to Parur; the Perumbavoor Court sent only a copy of the decree and the certificate of non-satisfaction and then "struck off" the execution case.

Papers reached Parur and the decree-holder applied to have the execution case returned to Perumbavoor for rateable distribution of certain amounts attached earlier. The case was retransferred to Perumbavoor and remained there until 28-4-1119 (on that date the decree was a live one). The decree-holder made further execution applications. A subsequent execution petition dated 24-10-1121 was filed before the Parur Court by the assignee-decree-holder (the appellant); the original decree-holder agreed to execution in favour of the appellant.

When the 24-10-1121 petition was taken up, the court believed the decree was under attachment in execution of two other decrees and ordered notices to those attaching decree-holders. The appellant tried to show those attachments related instead to decrees against the judgment-debtor, but the court was not satisfied and on 9-12-1121 ordered notices to be issued and set a "pay deficit process" deadline to 15-12-1121. The appellant did not comply and the execution petition was "struck off" on the appointed day.

The present execution petition (the subject of this appeal) was filed on 30-12-1121. On its face it was more than ten months beyond the 12-year period from the date of the decree and therefore barred by Section 48 CPC unless some exception or doctrine saved it. A purchaser of the secured properties objected to the appellant's locus standi (purchase after decree); the execution court rejected that objection. The appellant challenged before the Full Bench several grounds relied on by the execution court to find the petition barred.

Legal Issues Presented

  1. Whether the execution application filed on 30-12-1121 was barred by the 12 years' limitation in Section 48 of the CPC.
  2. Whether the 30-12-1121 application could be treated as a revival or continuation of the earlier execution petition of 24-10-1121 (so as to escape the limitation bar).
  3. Whether the "struck off" order of 15-12-1121 was a judicial disposal (final order) or void by reason of court mistake, with consequences for revival.
  4. Whether an acknowledgment of the debt by the judgment-debtor under Section 19 of the Limitation Act would operate to restart the limitation period prescribed by Section 48 CPC.
  5. Whether the period from 4-7-1116 (adjudication of insolvency) to 3-5-1119 (annulment of adjudication) should be excluded in computing the 12-year period under Section 48 by virtue of Section 78(2) of the Provincial Insolvency Act (and corresponding Travancore provision), including whether the decree-holder proved his debt in the insolvency proceedings.

Arguments of the Parties

Appellant's Arguments

  • The execution petition of 30-12-1121 was a revival or continuance of the earlier petition of 24-10-1121 rather than a fresh application; hence it was within time.
  • The "struck off" dismissal dated 15-12-1121 was the result of a mistaken order of the court and therefore should be treated as void; a litigant should not be prejudiced by the court's mistake.
  • An acknowledgment of the debt by the judgment-debtor (in an insolvency application in 1114 and in a civil miscellaneous petition on 3-8-1121) operated under Section 19 of the Limitation Act to give a fresh start to the limitation period applicable to Section 48 CPC.
  • The period during which the judgment-debtor was adjudicated insolvent (4-7-1116 to 3-5-1119) should be excluded from computation of the 12-year period under Section 48 by virtue of Section 78(2) of the Provincial Insolvency Act because the adjudication and subsequent annulment prevented execution during that time.

Other Parties / Court Below (points relied on against appellant)

  • The purchaser of the secured properties contended that the appellant lacked locus standi because his purchase took place after the decree ordering sale.
  • The execution court held the 24-10-1121 petition was judicially disposed of (struck off) for default of the appellant (failure to comply with the order to issue notices), and therefore a later petition could not be treated as reviving the earlier one.
  • The execution court and the Full Bench rejected the contention that Section 19 Limitation Act controls Section 48 CPC and rejected the insolvency-exclusion argument because the decree-holder did not prove his claim in the insolvency proceedings and secured creditors could realise security despite adjudication.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Maikarjan v. Narahari, 25 Bom 337 (PC) A court has jurisdiction to decide wrong as well as right; a wrong decision remains operative until set right by prescribed remedies. Applied to hold that the court's mistake in ordering notices did not make the order void; the appellant should have sought review or appeal.
Harihar Gir v. Mt. Dulhin, AIR 1940 Pat 432 For a later application to be treated as continuance of an earlier one, the earlier application must not have been finally dismissed. Used to conclude the 24-10-1121 petition was finally disposed of, so it could not be treated as pending and subject to revival.
Kuruvila v. Kocheepen, 1946 Trav LR 196 Judicial disposal of a subsequent execution petition that continued prior applications amounts to final order on those prior applications. Cited to support the point that even if the 24-10-1121 petition were viewed as a continuation, its judicial disposal conclusively disposed of prior applications.
Mohammathu Ummal… Appellant v. Mohammad Ummal Pathumal & Another, AIR 1951 Trav-C 179 Similar rule to Kuruvila: disposal of a later petition finalizes earlier petitions that it continues. Relied on to show that judicial disposal of the 24-10-1121 petition would be final as to earlier applications.
Maha Raja Bahadur v. A.K. Forbes, AIR 1929 PC 209 Orders on a fresh application indicate abandonment of earlier applications; prior applications cannot be revived. Applied to hold that if the 24-10-1121 petition was a fresh application, it evidenced abandonment of prior petitions and prevented revival.
Variath Ouseph v. Ouseph Ouseph, 36 Cochin LR 797 Fresh application leads to abandonment of prior applications. Cited to reinforce the proposition that orders on a fresh application preclude subsequent revival of prior applications.
Sankara Iyer v. Ganapathy Iyer, 37 Cochin LR 358 (FB) Review of authorities on whether Section 19 Limitation Act controls Section 48 CPC. Referred to as part of authority holding that Section 19 does not control Section 48; used to reject appellant's Section 19 argument.
Mathen v. Ouseph, 1947 Trav. LR 185 (FB) Similar review on the relationship between Section 19 Limitation Act and Section 48 CPC. Used alongside other authorities to support the conclusion that Section 19 does not apply to Section 48.
Sankaran Raghavan v. Narayanan Kesavan, AIR 1953 Trav-C 539 Adopted the view that Section 19 of the Limitation Act does not control Section 48 of the CPC. Relied upon to hold that acknowledgments under Section 19 cannot be used to restart the Section 48 period.
Sri Ram Kaur v. Rama Prasad Ghosh, AIR 1929 Oudh 71 Adjudication of insolvency does not affect the power of secured creditors to realise or deal with security. Applied to conclude that the decree-holder's right to execute was not barred by adjudication of insolvency; therefore exclusion under Section 78(2) did not arise from that adjudication alone.
Govind Prasad v. Pawankumar, AIR 1943 PC 98 (Privy Council) For exclusion under insolvency provisions, creditor must prove the debt in the mode prescribed by statute (lodging proof). Used to determine that because the decree-holder did not lodge proof of the claim in the insolvency proceedings, the time from adjudication to annulment could not be excluded under Section 78(2).
Sogmull Laehiram, Firm v. Parandhamayya, AIR 1940 Mad 716 Authority that exclusion under the insolvency provision requires proof of the debt in insolvency proceedings. Referred to support the conclusion that the appellant could not claim exclusion under Section 78(2) without proving the debt.
Satyabadi v. Jagannath, AIR 1947 Pat 161 Noted that Section 49 provides one statutory mode of proof, but courts sometimes view proof broadly. Referenced to acknowledge liberal approaches to "proof" but distinguished: the court held proof within insolvency proceedings remained necessary for exclusion.
Satyabadi Sahu v. Puri Bank Ltd., AIR 1947 Pat 199 Held that for exclusion under the insolvency provision there must be proof of the debt between adjudication and annulment. Cited to reinforce that exclusion under Section 78(2) requires proof in the insolvency proceedings and was lacking here.
Palaniyandi v. Palanivel, AIR 1949 Mad 683 Similar rule: proof in insolvency proceedings required for exclusion. Applied to support rejection of the appellant's exclusion claim under Section 78(2).
Veerayya v. Narasimharao, AIR 1938 Mad 142 Admission by the debtor in his insolvency petition does not amount to proof of the debt within the meaning of the insolvency provision. Used to show the debtor's alleged admission did not satisfy the requirement of proof for exclusion under Section 78(2).
Fazul Azim v. Tulsbi Ram, AIR 1938 Oudh 8 Same principle: admission in insolvency petition is not proof under the insolvency statute. Cited to reinforce the conclusion that the appellant's reliance on debtor's admissions did not amount to proof for exclusion of time.

Court's Reasoning and Analysis

The court proceeded by addressing the appellant's contentions in a step-by-step manner, applying the relevant legal principles and precedent quoted in the opinion.

  1. Revival/Continuation argument:
    • The court held that the first prerequisite for treating a later execution application as a revival is that the earlier application must not have been finally dismissed. The execution petition of 24-10-1121 was "struck off" on account of the appellant's default (failure to comply with the order to issue notices), and that amounted to a judicial determination of the petition. The court accepted the execution court's finding that the dismissal was due to the appellant's default rather than being merely ministerial.
    • The appellate court relied on the Maikarjan principle that courts may decide wrongly but their wrong decision stands until set aside by prescribed remedies. The appellant's remedy, if he considered the dismissal erroneous, was to seek review or appeal; having allowed the order to become final, he could not contend it was legally ineffective.
    • Therefore the attempt to treat the 30-12-1121 application as a revival of the 24-10-1121 petition failed because the earlier petition was finally disposed of.
  2. Even if for argument the 24-10-1121 petition were considered a continuation of prior applications, the court noted existing authorities (Kuruvila, Mohammathu Ummal, etc.) establishing that judicial disposal of a subsequent execution petition that continues prior applications operates as a final order on those prior applications. Hence disposal of the 24-10-1121 petition would still foreclose revival.
  3. Fresh application / abandonment analysis:
    • Alternatively, if the 24-10-1121 petition was a fresh application, the court applied authorities (Maha Raja Bahadur, Variath Ouseph) to the effect that orders on a fresh application evidence abandonment of prior applications and prevent their later revival. That alternative theory likewise defeated the appellant's revival contention.
  4. Section 19 Limitation Act / Acknowledgment argument:
    • The court observed that clauses (a) & (b) of Sub-s. (1) of Section 48 fix unalterable commencement dates for limitation. Applying Section 19 of the Limitation Act (which restarts limitation upon admission) to Section 48 would render Section 48 largely nugatory. The court reviewed authorities and adopted the view (citing Sankara Iyer, Mathen, Sankaran Raghavan) that Section 19 does not control Section 48. Accordingly, acknowledgments under Section 19 could not be used to restart the Section 48 period.
  5. Insolvency exclusion under Section 78(2) (adjudication to annulment period):
    • The court examined Section 78(2) of the Provincial Insolvency Act (corresponding to the Travancore provision) which excludes from limitation the period from adjudication to annulment only where the debt was "provable" and "proved" under the Act. It noted Section 28's provision protecting secured creditors' power to realize security notwithstanding adjudication, and held that adjudication did not prevent a decree-holder from executing the decree; thus exclusion under Section 78(2) did not automatically arise.
    • The court emphasized the proviso to Section 78(2) requiring that the debt be provable and proved, and relied on Privy Council and other decisions (Govind Prasad, Sogmull Laehiram, Satyabadi Sahu, Palaniyandi) to conclude proof within the insolvency proceedings between adjudication and annulment is necessary. The decree-holder in this case did not attempt to prove his claim in the insolvency proceedings; mere admission by the debtor in his insolvency petition was held not to amount to proof (Veerayya, Fazul Azim).
    • Therefore the period of insolvency adjudication/annulment (4-7-1116 to 3-5-1119) could not be excluded from the computation of the 12-year period under Section 48 for the appellant's benefit.
  6. Quantitative conclusion:
    • The combined exclusions the appellant could claim (the two Travancore Judgment Debtors' Temporary Relief Proclamations and the two months' period fixed by the decree) would cover only eight months; the present petition was filed over ten months beyond the 12-year limitation. On that basis, and having rejected the revival, acknowledgment, and insolvency-exclusion arguments, the court concluded the execution petition was time-barred.

Holding and Implications

APPEAL DISMISSED

Holding (direct effect): The Full Bench dismissed the appeal. The court held that the execution petition filed on 30-12-1121 was barred by the 12 years' limitation in Section 48 CPC. The court rejected the appellant's contentions that the petition was a revival of an earlier petition, that Section 19 of the Limitation Act applied to restart the period, and that the insolvency adjudication-to-annulment period could be excluded because the decree-holder did not prove his claim in the insolvency proceedings. Costs were awarded against the appellant.

Implications: The decision resolves the dispute between the parties by upholding the execution court's finding that the application was time-barred and by affirming the principles applied (finality of judicial disposals unless set aside; non-application of Section 19 to Section 48 CPC; requirement of proof in insolvency proceedings for exclusion under Section 78(2)). The opinion applies extant authorities; it does not purport in the text to establish a novel legal principle beyond the application of cited precedents. The direct consequence is that the appellant's execution petition is ineffective and the appeal fails.

Signed A/H.G.P — Appeal dismissed.

Show full summary ...

    Krishna Panicker v. Kunchu And Another

    Koshi, C.J:— The assignee decree-holder in O.S No. 923 of 1108 on the file of the Ferumbavoor District Munsiff's Court has preferred this appeal against the order of the execution court dated 9-12-1123 that the execution application filed by him on 30-12-1121 was barred by the 12 years' rule enacted in Section 48 of the CPC (Section 41 of the CPC, (Travancore) since repealed). The Division Bench before which the appeal first came up for hearing referred it for disposal by a Full Bench as it raised some nice questions relating to the law of execution. Before the reference, and as a preliminary thereto, certain findings were called for from the execution court and the order of reference was made after the findings were received in this court.

    2. The facts so far as they are relevant for the purpose of the appeal are as follows:

    The decree under execution is one charged on immovable properties, and it was passed by the Ferumbavoor District Munsiffs Court on 21-2-1109. At that time the properties directed to be sold thereunder were within the jurisdiction of the Ferumbavoor Court, but before the first execution application was made, the territorial jurisdiction over the local area where these properties are situate happened to be transferred to the Parur District Munsiff's Court. The first execution petition was filed before the Perumbavoar Court on 25-7-1109. It asked for several reliefs and also contained a request to send the records to the Parur Court for execution. The Court however only sent a copy of the decree and the certificate of non-satisfaction to the Parur Court. Afterwards, the Perumbavoor Court “struck off” the execution case stating that a copy of the decree and the certificate had been sent to the Parur Court.

    3. After these papers reached Parur, the decree-holder applied to the court there to send the execution case back to the Perumbavoor Court as certain amounts attached before judgment — which amounts were also attached in other cases — were sought to be brought in to that court for rateable distribution. The transfer was accordingly made and the execution case thereafter remained on the file of the Perumbavoor Court till 28-4-1119. It is common ground that on that date the decree was a live one. After the retransfer the decree-holder had made more than one execution application to the Perumbavoor Court. The next execution petition in the case was made on 24-10-1121 before the Parur Court and that was by the assignee-decree-holder, the present appellant. The original decree-holder expressly agreed to the recognition of the transfer and the execution asked for being allowed in favour of the appellant. When the petition was taken up for ordering notice to the judgment-debtor it was thought that the decree was attached in execution of two decrees and the Court therefore ordered notices to be issued to the decree-holders in those cases as well. The appellant tried to satisfy the court that neither of those attachments did proceed in execution of any decree obtained against the decree-holder but that both the attachments were in relation to decrees passed against the judgment-debtor. The court was however not satisfied about that position and passed a further order on 9-12-1121 which ran thus — “Issue Notice to the attaching decree-holders also, returnable on 14-1-1122 — Pay deficit process. To 15-12-1121.” The appellant did not comply with the order and on the appointed day the court “struck off” the execution application.

    4. This was followed by the execution petition, from the order dismissing which the present appeal has been brought. It has been mentioned already that this application was filed on 30-12-1121. On the face of it, it was barred by the 12 years' rule. Ten months and nine days had elapsed after the expiration of 12 years from the date of the passing of the decree. When notice was issued oil the petition it was a purchaser of the secured properties that raised objection to the execution and the appellant contended that he had no ‘locus standi’ as his purchase was after the passing of the decree directing the sale of the properties. The execution court repelled that contention and before this court no serious attempt was made, in our opinion, rightly, to assail the decision of the lower court on the point. However every ground mentioned by the lower court to repel the argument that the execution was not barred by the 12 years' rule was challenged before us and we shall now proceed to deal with them one by one.

    5. The first ground urged before us was that the execution application dated 30-12-1121 from which the present appeal arises was one to revive or continue the petition dismissed on 15-12-1121, i.e, the execution petition dated 24-10-1121. According to the appellant there was no judicial disposal of that petition, but the lower court has held that it was a judicial order that was passed on 15-12-1121 disposing of the petition. The first requisite to attract the application of the reviver theory in relation to execution applications is that the previous application should not have been dismissed for any fault or default of the decree-holder. Here it was not contended that the words “struck off” indicated that the disposal was only for what is commonly called ministerial or statistical purposes. What was contended was that it was a wrong order passed by a mistake of the court that brought about the dismissal and that it was almost axiomatic that a litigant cannot be made to suffer for the court's mistake.

    6. On this hypothesis, it was further argued that the dismissal should be deemed to be void and that execution petition should be treated as in law pending when the present application was filed on 30-12-1121. No doubt, it is true that there was: no attachment of the decree and the court gave the direction to take out notice to the so-called attaching decree-holders under a mistaken impression. This was one of the points remitted to the execution court for a finding and that court's answer is to the effect that the decree under execution was not under attachment at any time. Before the petition was dismissed the appellant was however given an opportunity to satisfy the court that it was unnecessary to issue notices to the decree-holders in the two decrees in execution of which the attachments were said to have been issued, but the court was apparently not satisfied with the cause shown and accordingly repeated its order to take out notices to them. For non-compliance of that order, it was that the execution petition was “struck off”.

    7. We are at one with the lower court in its view that order was made on account of the appellant's default and that it, amounted to a judicial determination of the petition by the court that it cannot be proceeded with unless notice of the execution was given to these decree-holders. The Page: 3court made a mistake and it is true that it was a sad mistake,

    “but a court has jurisdiction to decide wrong as well as right. If it decided wrong the wronged party can only take a course prescribed by law for setting matters right; and if that course is not taken, the decision, however wrong, cannot be disturbed.”

    8. Per Lord Hobnouse in — ‘Maikarjan v. Narahari’, 25 Bom 337 at p. 347 (PC)(A).

    9. In order that a later application for execution may be regarded as one for the continuance of the pending proceedings, the previous application for execution must be treated as one still pending in the eye of the law, and it cannot be so Treated if it was finally dismissed and disposed of. See — ‘Harihar Gir v. Mt. Dulhin’, AIR 1940 Pat 432 (B). We have said that the dismissal of the execution petition of 24-10-1121 was by a judicial order. It was hence final. When the ground of the decision was wrong the appellant's duty was to apply for a review of the order of dismissal or to take that order in appeal. Having allowed the order to became final, we cannot now listen to the argument that the order was destitute of legal effect. The first contention that the present execution petition was one to continue the previous one dated 24-10-1121 is therefore devoid of merit and it was rightly repelled by the lower court.

    10. Before we proceed to deal with the alternative argument as to reviver we desire to mention that we have not omitted to notice that the petition of 24-10-1121 itself was filed beyond 12 years of the date of the passing of the decree. One of the points on which the finding of the execution court was called for was whether this petition was a fresh application within the meaning of Section 48 of the CPC, or was only one to revive some earlier application. The finding recorded by the execution court is unfavourable to the appellant hut, in view of certain exclusions claimed by the appellant of certain periods during which execution of decrees was prohibited by the Travancore Judgment Debtors' Temporary Relief Proclamations of 1110 and on account, of the fact that the decree had fixed two months' time for payment we assumed, without deciding, that the application was within the 12 years' period fixed by Section 48 of the CPC.

    11. The alternative argument as to reviver is that even if the execution petition of 24-10-1121 is considered to have been judicially disposed of, the present application must be deemed to be one to revive or continue some earlier applications which were not judicially disposed of or which contained unspent or unexhausted prayers. This argument either is not in the circumstances of the case available to the appellant. We shall here make another assumption in his favour and that the effect that by some process of judicial rationalization it is possible to accept the argument that the execution petition of 24-10-1121 was one to revive some prior applications. The judicial disposal of a subsequent execution petition which could be held to be a continuation of prior applications, amounts to a final order on prior applications even when they could be deemed to be pending and capable of revival. See — ‘Kuruvila v. Kocheepen’, 1946 Trav LR 196 (C) and — ‘Mohammathu Ummal…Applt.; v. Mohammad Ummal Pathumal & Another…Resps.’, AIR 1951 Trav-C. 179 (D). The judicial disposal of the execution application of 24-10-1121 would hence tantamount as well to a final and conclusive disposal of all previous applications, assuming that any of them can be deemed in the eye of the law to have been pending when the order of 16-12-1121 was passed.

    12. Nor would the fate of the argument be any the different on the basis of the finding of the execution court that the application of 24-10-1121 was a fresh application for execution and not one seeking to revive any previous application. In that view of the matter, the appellant will be considered to have had no intention of pursuing the previous applications, but of having abandoned them altogether. — ‘Maha Raja Bahadur v. A.K Forbes’, AIR 1929 PC 209 (E); — ‘Variath Ouseph v. Ouseph Ouseph’, 36 Cochin LR 797 (F), The orders on the fresh application must be deemed to have set the seal of the court's approval to such abandonment and to have the effect of preventing any subsequent revival of the previous applications.

    13. The second ground on which, the appellant sought to bring the case out of the mischief of Section 48 of the CPC, was that before 12 years had elapsed the judgment-debtor had acknowledged the decree debt in writing in two petitions, one in an Insolvency application filed by him before the Parur District Court in 1114 (I.P 12/14) and the other in a civil miscellaneous petition he filed before the Parur District Munsiffs Court in O.S No. 1013 of 1103 on 3-8-1121. Prima facie the latter date is beyond 12 years of the decree. But it would be within 12 years if the exemption the appellant claims under the heads mentioned in a preceding paragraph are taken into account.

    14. There was however only a faint attempt to sustain the appeal on this ground. The appellant's learned counsel conceded that he could not find a single case to support the argument that Section 48 of the CPC was controlled by Section 19 of the Limitation Act. Cases to which it applies, in clauses (a) & (b) of Sub-s. (1), S. 48 fixes unalterable dates for the commencement of the period of limitation prescribed by it. The effect of an acknowledgment under Section 19 of the Limitation Act, is to furnish a fresh start for purposes of limitation and to apply the provisions of that section to the period of limitation prescribed by Section 48 of the CPC would be to render the provisions of the latter section largely nugatory. The case law bearing on the point has all been reviewed in — ‘Sankara Iyer v. Ganapathy Iyer’, 37 Cochin LR 358 (FB)(G) and — ‘Mathen v. Ouseph’, 1947 Trav. LR 185 (FB)(H). In — ‘Sankaran Raghavan v. Narayanan Kesavan’, AIR 1953 Trav-C 539 (I), this court adopted the view that Section 19 of the Limitation Act, did not control Section 48 of the CPC. The second ground urged before us in the appeal also therefore fails.

    15. The third and the last ground urged was that in computing the period of 12 years under S. 48, the period from 4-7-1116 to 3-5-1119 should be excluded in that the judgment-debtor was adjudicated an insolvent on the former date and the order of adjudication annulled on the latter date. Section 78(2) of the Provincial Insolvency Act, 1920 (which corresponds to Section 30 of the Travancore Insolvency Act 8 of 1108) enacts as follows:

    “(3) Where an order of adjudication has been annulled under this Act, in computing the period of limitation prescribed for any suit or application for the execution of a decree (other than a suit or application in respect of which the leave of the court was obtained under sub-section (2) of section 28) which might have been brought or made but for the making of an order of adjudication under this Act, the period from the date of the order of adjudication to the date of the order of annulment shall be excluded:

    provided that nothing in this section shall apply to a suit or application in respect of a debt provable but not proved under this Act.”

    16. Section 28, sub-s. 6 (corresponding to the proviso to sub-s. 2 of section 28 — Travancore Insolvency Act) however provides that the Insolvency proceedings are not to affect the power of any secured creditor to realise or otherwise deal with the security in the same manner as he would have been entitled to realise or deal with it if no order of ad-judication had been made. The fact that the judgment-debtor was adjudged an insolvent did, not therefore stand in the way of decree-holder putting his decree into execution. No question of exclusion of any period of limitation can hence arise by virtue of S. 78(2). See — ‘Sri Ram Kaur v. Rama Prasad Ghosh’, AIR 1929 Oudh 71 (J).

    17. Besides, the proviso to S. 78(2) quoted above makes it clear that in order to claim exclusion under the section two conditions must be satisfied, namely, that the debt in question must be one “provable” under the Act and secondly that it must have been “proved”. Admittedly, no attempt was made by the decree-holder to prove his claim in the Insolvency proceedings. Apart from the fact that the language of the proviso is clear, decided cases have unequivocably laid down that exclusion can be claimed only when these two conditions are satisfied. We need only refer here to the Privy Council decision in — ‘Govind Prasad v. Pawankumar’, AIR 1943 PC 98 (K) and to a decision Krishnaswamy Iyengar J. rendered in — ‘Sogmull Laehiram, Firm v. Parandhamayya’, AIR 1940 Mad 716 (L). Even though the decree-holder was a secured creditor he was entitled to prove his claim in the insolvency proceedings for the whole or a portion, of the claim as provided in S. 47 (corresponding section of the Travancore Insolvency Act bears the same number) of the Provincial Insolvency Act, 1920. The decree-holder ignored the insolvency proceedings altogether and did not attempt to give proof of his claim in that proceedings. The said omission of the decree-holder is yet another reason why the appellant cannot claim any exclusion of time under S. 72(2).

    18. We are not unaware that a liberal construction is sometimes given to the manner of proof of a debt for the purpose of S. 78(2). Notwithstanding the Privy Council decision in — ‘AIR 1943 PC 98 (K)’, where it is stated that a creditor proves his debt when he lodges a proof in the mode prescribed by the Statute, i.e, by fulfilling the requirements laid down in S. 49 of the Act, it has been held in some subsequent cases that S. 49 provides only one of the modes in which a debt may be proved, — ‘Satyabadi v. Jagannath*’, AIR 1947 Pat 161 (M), is an instance in point. There is however almost unanimity of judicial opinion now that for the purpose of claiming the exclusion of time under S. 78(2) there must be proof of the debt in the Insolvency proceedings after the order of adjudication and before the order of annulment., See — ‘Satyabadi Sahu v. Puri Bank Ltd.’, AIR 1947 Pat 199 (N) and — ‘Palaniyandi v. Palanivel’, AIR 1949 Mad 683 (O).

    19. We refer to these cases to show that however liberal the view as to the manner of proof of a claim for purpose of S. 78(2) is held to be, the admission by the judgment-debtor of the debt in his application to declare him an insolvent will not amount to proof of the debt within the meaning of the section. Cases have expressly ruled that way and we shall only refer to two of them, viz., — ‘Veerayya v. Narasimharao’, AIR 1938 Mad 142 (P) and to — ‘Fazul Azim v. Tulsbi Ram’, AIR 1938 Oudh 8 (Q). As pointed out by Sir Dinshah Mulla at page 568 of his Law of Insolvency in British India, the decisions which take a contrary view ignore the words ‘under this Act’ which occur at the end of the proviso to S. 78(2). Sections 33, 34 and 49 of the Provinical Insolvency Act (corresponding sections of the Travancore Insolvency Act bear the same numbers) make it abundantly clear that these sections contemplate the proof of debts only between the date of the adjudication and the date of the order of the annulment. The admission of a debt in an insolvency petition by the debtor will not fall within these limits.

    20. Section 78(2) also cannot therefore take the appellant's case out of the 12 years' rule of limitation prescribed by Section 48 of the CPC. The exclusion of time claimed on account of the two Travancore Judgment Debtors' Temporary Relief Proclamations and the two months' period fixed by the decree for payment would in all cover only a period of eight months. The present execution petition was filed more than ten months after the date of the passing of the decree. The appeal hence fails and it will stand dismissed with costs.

    A/H.G.P

    21. Appeal dismissed.

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