CHUMMAR PAVU Vs. GOVERNMENT OF KERALA

JUDGEMENT

(1.) The first judgment debtor in O. S.31 of 1949 on the file of the Sub Court of Ottapalam is the appellant and the appeal is against the order of the learned Subordinate Judge holding that the execution application is not time barred.

(2.) E. P. 257 of 1962 was presented by the decree holder, on 17 9 1962. The decree in the case was passed on 22-3-1950. The judgment debtor contended that being beyond 12 years of the decree, the right of the decree holder to execute the decree was lost under S.48 CPC. As against this contention the decree holder pointed out that in view of the periods excluded under special enactments that came after the date of the decree like Act V of 1954 and Act I of 1955 (both Madras Acts) and the Kerala Act 31 of 1958, execution was not barred. Under these Acts the execution of decrees was directed to be put off for specified periods, and when those periods are excluded the execution will not be barred by the 12 year rule provided by S.48 CPC. Learned counsel for the judgment debtor would argue that the temporary suspense of execution of decrees provided in the special enactments cannot curtail the 12 years provided under S.48; in other words, in computing the period of 12 years under S.48, the time excluded by the intervening special enactments ought not to be given credit to. No decree is executable, according to him, after 12 years of the date of the decree even though the right to execute decree is banned in the meantime by special enactments.

(3.) This question seems to have come up for judicial consideration in the various High Courts and the matter was finally set at rest by a Full Bench decision of the Madras High Court rendered in Kandaswami Pillai v. Kannappa Chetty ( AIR 1952 Mad. 186 ) wherein Rajamannar, C. J., reviewing the position in the light of prior decisions both of the Madras High Court and other High Courts, stated as follows: