MUTHUSWAMI UDAYAR Vs. SAMINATHA UDAYAR

JUDGEMENT

(1.) THIS is a petition filed by the plaintiff (decree-holder)against the order passed in E. P. No. 170 of 1979 in O. S. No. 444 of 1959 on the file of the Court of the District Munsif of Ariyalur, dated 29th August, 1979. The learned District Munsif dismissed the execution petition which was filed under Order 21, rules 11, 54 and 66 of the Code of Civil Procedure for execution of the decree by attachment and sale of the immovables of the first mdg-ment-debtor for the realisation of past and future mesne profits. The judgment in the second appeal (Natesa Udayar v. Muthuswami Udayar, Swamintha udayar1, on the file of the High Court, Madras ), was passed on 14th September, 1966. The certified copy of the decree in the second appeal also bore the date 14th September, 1966, on top of the decree in the preamble portion. However, the date as against the designation of the officer of the High Court, viz. , the Deputy Registrar, Appellate Side, who signed the decree after it was prepared, appeared to be 29th October

(2.) 1966. On the basis of the date appearing as 29th October, 1966 as against the designation of the officer who signed the decree, it is contended by Mr. Srisailam, learned counsel for the revision petitioner, that though in the preamble portion the decree bears the date 14th September, 1966, yet, as the decree bears the date of 29th October, 1966 at the end on which date it was signed by the officer, the period of limitation for execution of the decree should be computed as from the date 29th October, 1966, namely the date on which the decree was prepared and signed and, as such, the revision petitioner is entitled to have the decree executed within twelve years from 29th October, 1966, as contemplated by Article 136 of the Limitation Act, 1963, (corresponding to Article 182 of the Limitation Act, 1908 ). The lower Court in its order under revision , had held that the period between the date of the judgment, viz. , 14th September, 1966 and the date on which the decree is seen to have been signed, viz. , 29th October, 1966. cannot be excluded under section 12 (2) of the Limitation Act and the same has no application as per the decision in Lalchand Ram-chand v. Kanhaialal rambharose1, and, as such, as per rule 118 of the Civil Rules of Practice, the decree can be enforced forthwith, even if the costs are not ascertained by the high Court, when exercising its original jurisdiction and, inasmuch as the execution petition is not for costs only, the time as stated by the learned counsel for the petitioner cannot be excluded and that as per Article 136 of the Limitation Act, 1963, the execution petition had to be filed within twelve years, from the date of the decree, i. e. , 14th September, 1966 as the decree became executable as from that date, and not 29th October, 1966. because the judgment in the second appeal was passed on 14th september. 1966, itself, and though the decree bore the date 29th October, 1966, as its end as against the designation of the officer, who signed the decree, the execution petition had to be construed as one filed beyond the period of limitation of twelve years. In other words, the lower Court held that the execution petition was barred by limitation when it was filed, by virtue of Article 136 of the Limitation Act, 1963. On this view, the lower Court dismissed the execution petition and hence the plaintiff (decree-holder) has come forward with this civil revision petition assailing the said order of the lower Court.

(3.) NALINI Kanta v. Kamaraddi4, already referred to, would not be applicable to this case because, in that case, a decree was by mistake dated 16th February, 1929, whereas the date of the decision was actually 11th february, 1929. The decree-holder took a certified copy of that portion of the summons books which contained the formal decree and was therefore led to believe that the decree was passed on 16th February, 1929. His application for execution was filed on 15th February, 1932. In those circumstances, it was held that although the Court had no power to extend the time of limitation, yet in the interests of justice the decree ought to be regarded as having been passed on 16th February, 1929, on the principle of'actus curiae nominem gravabit' (the act of Court shall prejudice no man ). In the instant case, therefore the contention of the revision petitioner's counsel that it is the date 29th October, 1966, when the decree was prepared and signed that has to be taken into consideration for computing the period of limitation for execution, is untenable and unsustainable.