KESAVA PILLAI SANKARA PILLAI Vs. HABEEB MOHAMMED EBRAHIM

JUDGEMENT

(1.) The respondent obtained a decree on the 7th February, 1956, against the appellant, for redemption of a mortgage. The decree prescribed as a condition precedent to the execution, that the respondent shall pay court fee on the sum of Rs. 400. Without fulfilling the condition, the respondent filed a petition for execution on the 2nd February, 1959, and it was dismissed on the 11th February. He filed another petition on the 1st December, 1959, outside the period of three years from the date of the decree and complied with the direction by paying the court fee on the 16th December. Objection was then taken by the appellant, that the execution of the decree was barred by limitation, as the previous petition was not in accordance with law, no court fee having been paid, and the date of that petition cannot be reckoned as a starting point. The objection prevailed with the execution court, but on appeal it was overruled.

(2.) Learned counsel for the appellant contended on the authority of the decision of the Supreme Court in Yeshwant Deorao v. Walchand Ramchand AIR 1951 SC 16 , that the starting point of limitation for the execution of the decree, notwithstanding the condition prescribed, is the date of the decree and not the date of performance of the condition. The Supreme Court observed:

(3.) In Basamma v. Shivamma AIR 1963 Mysore 323 and Yella Appa Rao v. Nagam Veerraju AIR 1962 Andhra Pradesh 385 relied on for the appellant, the former relating to a final decree for partition and the latter to a final decree for the dissolution of partnership and accounts for the execution of which, additional court fee had to be paid under S.11 of the Court Fees Act corresponding to S.8 of the Travancore - Cochin Court Fees Act, apart from holding that the starting point of limitation was the date of the decree and not the date on which court fee was paid, the courts also held, that the previous execution petitions filed before the partition decree was duly stamped or before paying the prescribed court fee on the decree for accounts, were not in accordance with law. This was on the principle, that without the decree being stamped or without payment of the fee as prescribed by the Court Fees Act, the decree was inexecutable and therefore a petition did not lie to execute what was inexecutable. Just as in the passage quoted, the Supreme Court excluded conditional decrees, in the Andhra case, Chandra Reddy, C.J. also made the distinction in the following terms:-