PADMANABHAN MATHEVAN Vs. RAMASWAMI PILLAI MATHEVAN PILLAI

JUDGEMENT

(1.) The matter arises in execution of the decree, on objection raised by the respondent -- 5th defendant, that the execution of the decree is barred by limitation, as regards personal execution for realisation of the mesne profits, granted under the decree. The court below upheld the objection and hence this appeal by the assignee-decree-holder.

(2.) The decree set aside a mortgage which stood in favour of the 5th defendant in respect of plaint Item No. 3 and allowed recovery of the same, with past and future mesne profits. The decree was passed on 4-3-1121. On 18-10-1123, the first execution application was filed, praying inter alia for recovery of the mesne profits but only 'as a charge against the properties'. The prayer for personal execution against the 5th defendant was for the first time made in the second execution petition dated 22-6-1953, but as by then, more than three years had elapsed from the date of the decree the court below held such prayer was barred by limitation under Article 182. The assumption, apparently, was that the portion of the decree which granted mesne profits amounted to a separate decree by itself and limitation therefore in execution must be computed on its own basis apart from the rest. This was precisely the argument which was sought to be advanced in Lekshiminarasimham v. Suryanarana, AIR 1948 Mad 246 (A) and Govindarajachari, J. with whom Gentle C. J. agreed, held rejecting the contention:

(3.) Learned counsel for the respondent then said that execution must be held to be still barred in this case, because the second execution application was filed more than three years after, though within six years of the disposal of the first. The argument is that even though the decree related to immovable property and a memorandum thereof was entered or filed as required by Section 15 of the Travan-core Registration Act II of 1087 so as to attract the larger period of limitation of six years under Article 166 of the Travancore Limitation Act (VI of 1100) the smaller period of three years alone is now available under the different wording of Article 182 of the repealing Indian Limitation Act. The relevant portions of the two Articles are as follows : Art. 166. Description of Period of limitation. application For the execution of a Three years; or, where a decree or order of any Civil certified copy of the Court not provided for by decree or order has been Section 41 of the Code of registered, or a Civil Procedure. memorandum of the decree or order relating to Immovable property is entered or filed as required by S. 15 of Regulation II of 1087, six years. Art. 182. For the execution Three years; or, where a of a decree or order of any certified copy of the decree Civil Court not provided for or order has been by Article 183 or by S. 48 registered, six years. of the Code of Civil Procedure, 1908. The Limitation Act of Travancore thus allowed the larger period in the two cases (i) of registration of a certified copy of the decree and (ii) the entering or filing of a memorandum thereof, while the Indian Act limited that concession to the first case alone.