GOVINDAN Vs. DAMODARAN

JUDGEMENT

(1.) This appeal arises out of proceedings in execution of the decree in O.S. No. 54 of 1102 on the file of the Quilon District Court. The appellant before this court is the assignee decree holder. The question for decision in the appeal is one of limitation. The Trial Courts decree which was passed on 5.7.1107 set aside as many as six different alienations made at different times by two successive karnavans of a marumakkathayam tarwad and it allowed the plaintiffs, three junior members, to recover possession of the concerned properties on behalf of the tarwad. Each alienee was in separate possession of the item or items alienated to him and the decree passed was one severally as against all the defendants individually and in no sense against them jointly, and it specifically stated the properties of which each of them was severally and separately in possession as also the mesne profits each of them was to pay to the plaintiffs. Defendant 10, whose was the main opposition to the execution application giving rise to this appeal, was the purchaser of items 3 to 5 in the plaint schedule and the decree allowed the plaintiffs to recover a one-half share of those items together with the mesne profits due in respect of that share. The only person to prefer an appeal against the decree passed in the suit was defendant 5, an alienee of some other items. His appeal which was filed as A.S. No. 222 of 1108 before the Travancore High Court was confined to the properties he was interested in and the plaintiffs alone were made respondents to it. The appeal was successful and the High Court passed its decision on 26.10.1116 upholding the validity of the alienation in favour of Defendant 5. The present appellant had in the meanwhile obtained an assignment of the plaintiffs rights in the decree and on 10.1.1122, well within six years of the High Courts decision in A.S. 222 of 1108, but more than 14 years after the Trial Courts decree, filed execution petition out of which this appeal has arisen. This was the first and so far, the only application filed in the case to execute the decree passed in favour of the plaintiffs Defendant 10 opposed it as time-barred and the learned District Judge upheld the objection. Hence this appeal.

(2.) The period of limitation within which an execution application has to be filed is prescribed by Art. 166 of Schedule 1 of the Travancore Limitation Act (corresponding to Art.182, Indian Limitation Act) and S. 41 of the Code of Civil Procedure, Travancore (S. 48 of the Indian Code) fixes an outside period after which execution of a decree, though not barred by the Limitation Act, may not be granted. Art.166 provides a period of six years or three years according as the decree is registered or not from the different starting points mentioned in Cls. 1 to 7 of Column 3 thereof. The present decree comes under the category of registered decrees and hence an application filed within six years of the starting point will be well within time. A reference to the various clauses in column 3 would show that Cls. 3 to 7 have no application or relevance to the present case. So far we are on agreed grounds and the controversy in the case is whether Cl. (1) or Cl. (2) applies. The words used in Cl. (1), so far material, are date of the decree ............................. and the relevant words in Cl. (2) are (where there has been an appeal) the date of the final decree .................. The six years had expired or had not expired according as computation fell to be made, as the appellant urged, from the date of the decree of the High Court, or, as the respondent urged, from the date of the original decree.

(3.) It admits of no doubt that the decree under execution is one passed severally against the various alienees. It was not contended to be otherwise either here or in the court below. It is equally clear that the scope of the appeal in A.S. No. 222 of 1108 was limited to the validity of the alienation made in favour of defendant 5. Defendant 10 or any other defendant sought to be affected by the present execution was not a party to the appeal either as appellant or respondent. On these grounds it was contended on behalf of the 10th defendant respondent (here in after referred to as the respondent) that the applicatory clause is Cl.1 and not Cl.2. The argument was Cl. 2 applies only to a case where the whole decree is imperilled in the appeal or where the party sought to be affected by the execution was also a party to the appeal. A further refinement to the argument was, though not in form in substance the decree passed by the Trial Court consisted of as many as six independent decrees and that the appeal in A.S. 222 of 1108 was only from one of such decrees viz., that passed against defendant 5. Though the words in Cl.2 appear to be sufficiently clear, the question as to its interpretation is one which has given rise to a considerable conflict of authorities. One school of thought is that the words should be understood or interpreted in their plain grammatical meaning without any exceptions or qualifications added to them. The other school is the scope of the appeal or how far it could have affected the rights of the parties to the suit and its constitution should be taken into account in deciding whether Cl. 2 applies to a given case or Cl. 1 should govern it. Among the older High Courts in India controversy started soon after the Article itself was enacted. For our present purpose it is unnecessary to go into the sharp conflict of judicial opinion on the point as now the conflict has been set at rest by a pronouncement of the Privy Council in Nagendra Nath v. Suresh, AIR 1932 PC 165 to the effect that there is no warrant for reading into the words where there has been an appeal any qualification either as to the character of the appeal or as to the parties to it. Their Lordships said the words mean just what they say. Even before the Judicial Committee gave the above decision the preponderance of judicial opinion among the Indian High Courts was in favour of giving these words their plain grammatical meaning.