RAGHAVAN Vs. KESAVAN

JUDGEMENT

(1.) The decree holders are the appellants and the appeal is against the order of the District Court, Trivandrum holding that further execution of the decree was barred by limitation. The decree was on 29.6.1107 and the last execution application, which was held to be barred, was filed in court on 8.12.1122. It was no doubt, a fresh execution application, so that it came to court more than twelve years after the decree. The execution court held that, since the judgment debtor had filed a petition under S.8, 9, 15 of the Debt Relief Act to settle this debt, the statement regarding the existence of the decree could be taken to be a valid acknowledgment. Thereby enabling the decree holders to apply for execution within six years of the date of that acknowledgment. There was an acknowledgment; and the present execution application was within six years of that. But such acknowledgment will not have the effect of extending the twelve years limit mentioned in S.41 of the Travancore Civil Procedure Code. This has been concluded by the ruling in Thommen Mathai v. Kuruvilla Ouseph (1947 TLR 185). The lower appellate court set aside the order of the execution court and held that the execution petition was barred by limitation. The only point urged before us by the learned advocate for the appellants was that, on 25.7.1116, a petition under the Debt Relief Act had been filed by the judgment debtor, that this was disposed of only on 4.3.1120, that is after three years seven months and nine days, that under the proviso to S.10 of the Debt Relief Act they were not allowed to execute the decree, that this period should, therefore, be excluded in calculating the period of twelve years, and that, if this was done, it could be seen that the present execution application was within time. What was laid down in S.10 was that nothing contained in S.8 or S.9 should be deemed to affect the power of a court under the Code of Civil Procedure, 1100, or the right of a creditor to institute a suit for the recovery of his debt, provided that the execution of any decree or order of the court should not be in contravention of the said sections. This proviso contemplates two conditions - that there must be a debt which is allowed to be discharged under S.8 and 9 of the Debt Relief Act and that that debt is being discharged under the provisions of those sections. If this is so, Clause.3 in S.9 will come into operation, that is, if subsequent to the payment of the first instalment, default is made in the due payment of any instalment, such defaulted instalment shall be realisable forthwith. Thus, it is for the defaulted instalments, which are less than three, that execution is allowed to be taken. In this case, it was admitted that the present debt was not one that would come under the purview of S.8 and 9; for that was a debt excluded by S.4 of the Act. So there could not have been any payment, under the Debt Relief Act, and hence there was no scope for attracting the provisions of the Debt Relief Act, so far as execution in the present case was concerned. The proviso to S.10 would not therefore, help the decree holders in getting an extension of time as contended by them before us. No other point was argued in this appeal. We, therefore, rule that the execution of the decree is barred by limitation under S.41 of the Travancore Civil Procedure Code (corresponding to S.48 of the Indian Code). The appeal is dismissed with costs.