ANGARAUTHU CHETTIAR Vs. MUTHAYYA NAIDU ALIAS NATESA NAIDU

JUDGEMENT

(1.) THE appellant had obtained a decree for possession of Immovable property on 9th November, 1953. It would appear that the judgment -debtor had executed an usufructuary mortgage in favour of the appellant but had failed to place him in possession of the property. The suit was laid by the appellant for recovery of possession on the footing of the usufructuary mortgage in his favour. A decree followed both for possession and for mesne profits. The execution petition, which has led to the appeal, was filed on 20th November, 1957. It was clearly beyond three years from the date of the decree, arid to the objection raised on the administrative side of the District Munsif's Court, an endorsement was made on the execution petition, setting up Ordinance V of 1953, Act V of 1954 (Act of 1955) as saving the bar of limitation. The question that arose, therefore, was whether the bar of limitation was overcome by one or other or both the enactments.

(2.) THE learned District Munsif held, and the lower appellate Court agreed with him that under Proviso 3 to Section 3 of Act V of 1954, the suit for possession of land should not be deemed to be a suit for recovery of debt. In answer to the further contention that the period of time, during which the decree -holder believing in good faith that Section 3 of the Act applied to the execution application, should also be excluded under Section 5 of the Act, both the Courts held that the plea was far from convincing and could not avail the decree -holder. The execution petition was accordingly dismissed as barred by time. Hence this appeal.

(3.) THE question that arises is, therefore, whether this is a Suit which would come within the scope of the expression " suit for the recovery of a debt ". Debt has been defined in the Act to mean any sum of money which a person is liable to pay under a contract for consideration received and includes rent in cash or kind which a person is liable to pay or deliver in respect of the lawful use and occupation of land. On a plain reading of the section, read with the definition of the expression "debt", it would seem to follow that, where a suit is for recovery of possession of land, it would not be governed by Section 3 of the Act. The Proviso to the section removes, to my mind, all possible ambiguity. It states: