KOCHU VAREED Vs. MARIAM

JUDGEMENT

(1.) The plaintiff - Decree holder and his surety are the appellants. The proceedings in the court below were for restitution for which an execution petition was filed in respect of a sum of money drawn out by the decree holder under an ex parte decree. The ex parte decree was passed on 9.10.1117 in O.S. 311 of 1117. In execution of that decree a certain amount standing to the credit of the judgment debtor was proceeded against and a sum of Rs. 200 odd was brought into court and credited towards the decree. Thereupon, the decree holder who had secured the ex parte decree applied for payment out. This was granted subject to security being furnished. The surety who is one of the appellants in the present case was the person who furnished such security by executing a bond. Subsequently, the ex parte decree was set aside on application made by the judgment debtor. This was done on 15.10.1118. The suit was heard in due course on the merits and ultimately a decree for Rs. 7 odd was passed on 28.11.1119. From this decision A.S. No. 50/1120 was preferred and the appellate court on 26.2.1121 confirmed the decision of the Trial Court. On 10.12.1122 E.P. 1334/1122 was filed on behalf of the judgment debtor for getting back the excess amount drawn out by the decree holder when the ex parte decree was in force. This was resisted both by the decree holder and the surety according to whom the application was barred by limitation. Their contention was that the right to claim the amount accrued on the Trial Court setting aside the ex parte decree on 15.10.1118. If that position is not tenable then according to them in any event when the suit was tried on the merits and the decree for Rs. 7 odd was passed on 28.11.1119 the right to claim the excess amount drawn out from the court must necessarily have arisen. If either of these dates is taken as the starting point for limitation, then the application filed on 10.12.1122 for recovering the surplus was barred by limitation more than three years having elapsed from the starting point of limitation. The answer of the judgment debtor was that the right accrued only on the decree passed by the appellate court in A.S. 50/1220 which as already stated was on 26.2.1121. The execution petition in the present case with respect to which the question of limitation is raised was filed as already stated on 10.12.1122 and it was contended that it was within time.

(2.) Both the courts below have accepted the respondents contention that the application for recovering the surplus amount drawn out by the decree holder was in time. They have both based their conclusion on the wording of the surety bond under which the surety under-took to bring the amount back whenever the court directed him to do so. It was contended in the courts below that such a direction was not given prior to three years from the date of execution petition No. 1334 of 1122.

(3.) In second appeal, the question was argued purely as a question of law based upon the appropriate article of the Limitation Act which would apply to a petition like E.P. 1334 of 1122. Art.165 and 166 of the Cochin Limitation Act correspond to Arts. 181 and 182 of the Indian Limitation Act. Therefore if the residuary article which is Art.165 of the Cochin Act applies the application for recovering the surplus amount is clearly barred by limitation. If, on the other hand Art.166 of the Cochin Act which corresponds to Art. 182 of the Indian Act is applicable, then the execution petition is within time.