SANKARA PILLAI Vs. KUNJU PILLAI PANICKER

JUDGEMENT

(1.) The additional 6th plaintiff is the appellant. The respondent has not entered appearance. The appeal relates to an order in execution and the question for consideration is one of limitation. The appellate decree in the case was passed on 26-10-1108. The decree amount was charged on immovable property, but in respect of costs only a personal decree against defendants 1 and 2 was given. For the decree amount excluding the costs the hypotheca was sold in court auction and to that extent the decree was satisfied. The present execution relates only to costs. The execution petition was filed on 26-4-1121 more than 12 years after the date of the appellate decree. It was contended for the defendant that the execution petition was barred by the 12 years' rule. It is not disputed by the decree holder that the previous execution petition dated 29-11-1117 was judicially disposed of on 7-12-1117. His case is that under the Travancore Debtors' Temporary Relief Proclamation dated 1-8-1110 he is entitled to have a period of six months excluded from the period of limitation. S.2 of that Proclamation provides thus:-

(2.) The execution Court held that the Proclamation applied to the case and that the decree holder was entitled to have a period of six months excluded from the period of limitation. In appeal the learned District Judge took the view that since the decree for costs was not charged on immovable property the Proclamation would not apply to the case and that, therefore, the execution petition was barred by limitation. It is conceded by learned counsel for the appellant that the defendant in this case is not an agriculturist. Therefore, the only question for consideration is whether the present case comes under S.2(a) of the Proclamation. According to the wording of the section the Proclamation will apply if the execution application is "for the recovery of any money" due under a "decree for money charged on immovable property." It cannot be doubted that the decree in this case is one for money charged on immovable property although a portion of the money payable under the decree is not charged on immovable property. There is only one decree in the case. It cannot be said that there is one decree for money charged on immovable property and another decree for money not charged on immovable property. Therefore, the decree comes within the ambit of S.2(a) of the Proclamation. It has also to be noted that the words used in the section are "for the recovery of any money due under any decree of any of the following classes." Therefore, if the decree in the present case comes within the class of decrees for money charged on immovable property an execution petition for the recovery of any money due under that decree will come within the purview of the section although that money is not charged on immovable property. In this view of the case I am of opinion that the Proclamation applies to the case and that the decree holder is entitled to have the period of six months during which the Proclamation was in force excluded from the period of limitation as provided in S.4 of the Proclamation. I, therefore, set aside the order of the lower appellate Court and restore that of the execution Court.

(3.) The second appeal is allowed with costs.