UNNIKRISHNA MENON Vs. RAMAKRISHNA PILLAI

JUDGEMENT

(1.) The following passage from Halsbury's Laws of England, 3rd Edition, Volume 24, Page, 198, was quoted in the decisions of this Court in Velayudhan v. Gokulan ( 1964 KLT 600 ) and Kunhimutty v. Moideenkutty ( 1968 KLT 580 ).

(2.) What is contended before me in the appeal is that the principle should really be not one of exclusion but one of computing limitation considering 14-7-1961 as starting point. The decree in the case was passed on 7-9-1953. The earlier execution application was dismissed on 8-8-1956 and the next execution petition was filed on 19-8-1966 and it is in relation to that application the question of limitation has arisen. It is that application which is more than 12 years from the date of decree and it is more than 3 years from the final order on the previous application. Even if the period of 3 years from 14-7-1958 to 14-7-196! is excluded from computation, though for the purpose of S.48 of Code of the Civil Procedure, there will be no limitation, execution would be barred under Art.182 of the Limitation Act, 1908. To answer this, what is contended is that, if a period of 3 years from 14-7-1961 is treated as available, then execution would not have been barred on the date when the Limitation Act, 1963 came into force, on 1-1-1964. The period provided in that Act for execution is 12 years and therefore the present application would be in time. Therefore the entire question turns on whether the period from 14-7-1958 to 14-7-1961 should be excluded in the case of a debt coming within the scope of the Act or whether it should be deemed that 14-7-1961 should be treated as a fresh starting point for limitation. On this the execution court held in favour of the judgment debtor. But this was reversed by the appellate court. The court below, in coming to the conclusion that 14-7-1961 should be treated as starting point for reckoning limitation, was influenced by the decision of this Court in Mammad v. Abdul Salam ( 1963 KLT 288 ), Though that question did not as such arise in that case, the decision of the learned Judg3 lends some force to the argument of learned counsel for the respondent who sought to support the order of the court below. In that case, in execution of the decree passed on 22-9-1952 successive applications for execution were being made. The 2nd application was dismissed on 2-12-1957. The execution petition in relation to which question of limitation arose for decision was one filed on 17-8-1961. It was contended that it was barred as it was beyond the period of 3 years provided under Art.182 of the Limitation Act and it would be so even if the period under S.20 of Act 31 of 1958, was excluded. But if, as held later by two Division Benches of this Court the period between 14-7-1958 and 14-7-1961 were to be excluded the application would have been in time. But the learned Judge held that the application in that case was in time on the basis that the decree passed in the case must be considered as an instalment decree which gave a cause of action for recovery of successive instalments on the respective dates of default and recovery in a lump on failure to deposit six consecutive instalments. It would, no doubt, appear from the judgment of the learned Judge that it was considered that a new starting point for limitation would arise on these dates of defaults.

(3.) Whatever might have been the view expressed by my learned brother Velu Pillai, J., I think that in view of the later decisions of this Court considering the principle applicable as one of exclusion of the period during which decree could not have been executed in its entirety, the question must be considered as settled now. I do not think that in view of the later Division Bench decisions reference to another Bench is called for in this matter. The principle of exclusion of period in such cases is based really upon the bar to the execution of the decree, the decree as it stands, namely the decree for the whole, of the decree amount, during the period of six consecutive defaults.