JANAMMA BHAGAVATHY Vs. RAMAN NADAR

JUDGEMENT

(1.) THIS appeal arises from proceedings in execution of the decree in O. S. No. 160 of 1109 of the Munsiff's Court, Nedu-mangad, dated 20-4-1110 (5-12-'34 ). Nearly forty-two years since the date of the decree still leaves the fruits of the decree unrealised. The 10th defendant (one of the judgment-debtors) is the appellant in this appeal; and the only question agitated is whether E. P. No. 162 of 1968 filed against him on 211968 is barred by limitation. The plea was upheld by the execution court But its judgment was reversed on appeal by the lower appellate court which held the execution petition to be within time. A learned judge of this Court dismissed the Second Appeal against that judgment. In granting leave to appeal, the learned judge noted the plea of Counsel for the Respondents that the dismissal of the previous execution petition was not by judicial order, and left open the plea.

(2.) E . P. No. 405 of 1961 was dismissed on 17 31964, E. P. No. 162 of 1968 out of which this appeal arises, was filed on 2 81968 which is beyond 12 years from the date of the decree and beyond 3 years from the dismissal of E. P. No. 405 of 1961. The reasoning adopted for saving limitation was that by reason of the intervention of the Kerala Agriculturists Debt Relief act (Act 31 of 1958) which permitted the payment of debt by agriculturists in seventeen equal instalments, the decree had become transmuted into an instalment decree and that limitation would start from the date of default of the last of the six consecutive instalments viz. on 14 7 '61 and therefore that the execution petition No. 162 of 1968 would not be barred, having regard to Art. 136 of the limitation Act, which had been passed into law, before the said E P. was filed. We may observe, the view of the learned judge in Second Appeal was expressed thus: "the reasonable construction would be that the provision enables the decree-holder to execute the decree in lump on failure on the part of the debtor to pay six instalments consequently. without imposing a penalty of losing his right to execute the decree for future instilments, if he chooses to do so, as and when they fall due, which course is advantageous to the debtor himself. To my mind it is therefore clear that the decree is within time, if Act 31 of 1958 was found to be applicable to the decree on the date on which the Act came into force, as found by the first appellate court. "

(3.) BUT counsel for the respondent sought to avoid the position in two ways. First he argued that E P. No. 162 of 1968 was only a continuance of E. P. No. 405 of 1961. On the terms of the order on the prior E. P. we cannot countenance such an argument and we have no hesitation in rejecting the same.