MUHAMMAD HUSSAIN Vs. GANGA NAICKEN ALIAS GANGAMA NAICKEN

JUDGEMENT

(1.) THIS is an application for leave to appeal to the Supreme Court against the judgment and decree of this court in L. P. A. No. 7 of 1958. That appeal, which was disposed of by Rajamannar, C. J. , and one of us, was preferred against the judgment and decree of Ramaswami, J. , in A. A. A. O. No. 102 of 1957. which, in turn, was the appeal against the order of the District Court, Tiruchirapalli, in A. S. No. 354 of 1956 confirming the order of the court of tile Subordinate Judge, tiruchirapalli in E. P. No. 64 of 1955 in O. S. No. 128 of 1945.

(2.) THE question related to limitation. The decree directed delivery of possession of certain immovable property and payment of Rs. 135 for past mesne profits and further directed ascertainment of future mesne profits from date of plaint under order 20 Rule 12 C. P. C. E. P. No. 64 of 1955 was filed by the decree-holder, the applicant before us, for delivery of possession of the property. This execution petition was filed admittedly more than three years after the date of the original decree and also the date of a prior E. P. which was dismissed on 24-2-1947 for non-payment of batta. But, the decree-holder claimed that this execution petition was in time because, according to him, the three years period should be calculated only with reference to the decree for mesne profits passed by the District Judge, tiruchirapalli, on 10-3-1953 in pursuance of the directions in the preliminary decree. This contention, if accepted, would have saved the execution petition from the bar of limitation, but all the courts have negatived this contention and held that the decree for possession was capable of execution without reference to the decree for mesne profits and consequently no fresh starting point for limitation purposes would be furnished by the decree passed for mesne profits in 1953.

(3.) LEARNED counsel for the applicant contends that though the judgment is one of affirmance and though the subject-matter of the dispute, viz. , the property, does not satisfy the test of valuation, a question of great public importance is involved in this appeal since there is considerable difference of opinion between the various high Courts on this point which involves the interpretation of Article 182 of the first Schedule to the Limitation Act. Clause 2 in the third column of that Article provides for a period of limitation for execution of a decree in cases where there has been an appeal, Learned counsel pointed out that the decision of the Bench against which an appeal is sought to be preferred is in conflict with the Full Bench decision of this court in Krishtnama Chariar v. Mangammal, ILR 26 Mad 91 (FB ). The provision of the Limitation Act which came up for consideration before the Full bench was Clause 2 of Article 179, of the Second Schedule of the Limitation Act xvi of 1877. But the language of that clause is identical with Clause 2 of Article 182 of the First Schedule of the present Limitation Act. That in a case, of a suit including two reliefs, one for recovery of possession of immovable property and the other for recovery of mesne profits of that property, this decision of the Full bench would apply was held, in Kunjammal v. Krishna Chettiar, The argument that was addressed be, fore the Bench in was that the rule laid down in the Full Bench would not. apply to cases where the decree sought to be executed is against persons who were not parties to, the appeal. It was contended that the rule laid down by the Full Bench should be limited to cases. where the parties against whom execution was, sought were parties to the appeal. In repelling, this argument the Bench relied upon the Privy council decision in Nagendra Nath Dey v. Suresh Chandra Dey, 63 Mad LJ 329 : (AIR 1932 PC 165), where their Lordships held that in construing clause 2 of article 182 no distinction could be made between appeals which comprised the wholes subject-matter of the suit and appeals which were preferred only against a part of the subject-matter of the litigation. This decision was not brought to the notice of the Bench which heard the appeals with which we are now concerned.