ULAHANNAN MARIAM Vs. VARKEY KURUVILLA

JUDGEMENT

(1.) THIS second appeal is by the second defendant and arises out of an order in execution rejecting his objection that the decree was barred against himself and his interest in the properties covered by it. The suit was for amounts due as per a chitty transaction, there being a claim for a charged decree covering the plaint schedule properties. There were five defendants. A decree was passed on 7. 2. 1111 making the properties also liable. The third defendant who was exparte sought to get it set aside as per a petition filed on 22. 2. 1117. Without notice to the other defendants the suit was restored as far as he was concerned on 29. 12. 1118. A second decree was passed on 25. 3. 1119 in the same terms as the first decree with a direction that item No. 3 shall be sold last. After that when on 25. 2. 1125 the decreeholder filed an execution petition the second defendant contended that the decree was barred as against him as the decree passed on 29. 12. 1118 was not binding on him, the restoration proceedings being without notice to him. The decreeholder contended that the second decree was a revival of the first and he got a fresh starting point from the date of the same. Both the lower courts have held that there was no limitation, as the starting point of limitation was from the date of the second decree, namely, 29. 12. 1118. In the objections filed by the second defendant as per C. M. P. 4352/1125 to the execution, with regard to limitation two points were raised. One was that the second decree was passed after the original decree of 7. 2. 1111 had become barred, the whole restoration proceedings being as a result of collusion between the decreeholder and the third defendant for the purpose of getting over limitation. Then it was urged that the second decree being passed without notice to the second defendant was not binding on him. Whether the original decree was barred on 22. 12. 1117 when the application for restoration was filed by the third defendant and if so what is the legal effect of the second decree as regards the second defendant has not been considered by the lower courts. So here I will deal only with the question as to what is the effect of a second decree for the purpose of limitation under Art. 182 of the Indian Limitation Act (corresponding to Art. 166 of the Travancore Limitation Act) passed after restoration of the suit on the application of one of the defendants without notice to others, leaving aside the consequences of such a decree being after the first decree had become barred. On behalf of the appellant it was contended that under such circumstances the second decree was a nullity as regards those who were not parties to those proceedings and did not give a fresh starting point of limitation. Coming to the decisions cited on behalf of the appellant, Umesh Chandra Roy v. Akrur Chandra Sikdar (46 Calcutta 25) is a case where the decree passed was one for money and not a charged decree as here. After referring to cases cited on behalf of the decreeholder in support of his position that he got a fresh starting point from the date of the second decree, the last of such cases being Ashfac Hasian v. Gauri Sahai (ILR 33 Allahabad 264), this is what is observed at pages 29-30: "the case last mentioned is perhaps the one most in point, but while in that case the later decree granted against one of the defendants was necessary to the execution of the decree holder's mortgage decree, here it is to be remembered, as against the defendants 1 and 2, the decree of the 23rd December 1908, remained untouched throughout and has been from that date enforceable against them". So a distinction was drawn as regards a pure money decree. Appellant's counsel tried to distinguish Samodh Dhar Dube v. Bhuladhar Dube (5 Indian Cases 284) and Ashfic Hussin v. Gauri Sahai (9 Indian Cases 975 = ilr 33 Allahabad 254) relied upon by the lower appellate court and contended that they were not applicable to the present case. But a perusal of these decisions shows that the learned Additional judge was quite right in relying upon them. In Samodh Dhar Dube v. Bhuladhar Dube (5 Indian Cases 284) it was a mortgage decree as in the present case. The restoration and passing of the second decree was without notice to other defendants. It was held that the decree-holder got a fresh starting point of limitation from the date of the second decree, the decree being one and indivisible. The same principle is applicable here as it is a case of a charged decree. In Ashfic Hussin v. Gouri Sahai (9 Indian Cases 975 = ILR 33 Allahabad 264), being a privy Council decision, though there were some differences in facts it being pointed out that it was a case where by reason of nonservice of process on one of the defendants the original judgment ought not to have been given, still the same principles were laid down regarding the effect of a second decree as far as limitation was concerned. It was contended on behalf of the appellant that that was a case where the second decree was essential to supplement the first one and such a need did not arise in the present case. Being a mortgage decree when the suit is restored as against one defendant a second decree can be passed only on the lines as here. The decisions in Govindan v. Damodaran (1951 KLT 363) and Naryanan Thambi v. Lakshmi Narayanan (AIR 1953 TC 220 =1953 D. L. R T-C. 357) though concerned only with the question of starting point of limitation when appeals were preferred by some of the parties still refer to principles with which we are now concerned. It was laid down there that even where the appeal was only by some of the parties the starting point of limitation for the purpose of Art. 182 of the Indian Limitation Act (corresponding to Art. 166 of the Travancore Limitation Act) as against all the defendants was from the date of the appellate decree. The observations in these decisions also go to support the findings of the lower court that the execution was not barred in this case. As pointed out by the learned additional Judge, Govinda Pillai v. Lukose Muthalali (1955 KLT 160)does not at all support the appellant's position, the only question decided there being that when a second decree is passed without notice to some of the defendants any modifications made therein with regard to the original decree cannot affect the defendants who were not parties to it. These decisions with regard to limitation are referred and distinguished. In the present case the only variation made is with regard to the sale of the third item. That relief clearly cannot be enforced as against the appellant. Hence the appellant's contention that irrespective of the time at which the second decree was passed, the starting point of limitation was always the date of the original decree cannot stand. But as pointed out in the beginning the lower courts have not considered whether the second decree was passed after the original had become barred and if so what are the legal consequences arising from that fact. Hence this point is left to be decided by the executing court according to law.

(2.) SUBJECT to this direction the appeal is dismissed. In the circumstances of this case I direct the parties to bear their own costs.