SRIMATH DEIVASIKAMANI ANNAMALAI DESIKAR, PANDARA SANNADHI OF TIRUVANNAMALAI ADHINAM (DEAD) Vs. RAJU PILLAI ALIAS MARGASAGAYAM PILLAI

JUDGEMENT

(1.) In this case a decree was made that the plaintiff should recover certain property from the defendants and that he should pay to certain of the defendants amounts for improvements. Grammatically those might be two separate provisions in the decree; but I think there is no doubt that the intention of the decree was that on the payment of those amounts the plaintiff should be entitled to recover possession. The learned District Judge adopted a rather curious course in making his decree in respect of those amounts to be paid for improvements. He fixed them provisionally. He provided in the decree that they were subject to revision on the report of a commissioner to be appointed by the Court. There was an appeal against the decree; but it was dismissed by this Court in December, 1918. On the 15 of December, 1919, the plaintiff put in an execution petition, in which he prayed for the appointment of a commissioner to fix the amounts to be paid for improvements and for possession of the property. Eventually the commissioner made his report, and the District Judge after considering it adopted the amounts suggested by the commissioner on the 12 of November, 1920 and ordered that the plaintiff should pay those amounts into Court by the 17 of December, 1920. The amounts were not paid by that date, and the execution petition was adjourned from time to time; and eventually on the 8 of August, 1921, the plaintiff put in an application that further time might be granted to him for payment, and time was granted to him up to the 16 of August, 1921. On that date the money had not been paid and the execution petition was dismissed. Then on the 6 of August, 1924, the plaintiff put in E.P. No. 26 of 1924 for delivery of the property on payment of the amounts fixed. Objection was taken by some of the defendants that that petition was time-barred, because it was put in more than three years after the previous execution petition. The plaintiff contended that the bar of limitation was saved by his application of the 8 of August, 1921, for the adjournment of the previous execution petition in order to allow him time to make the payments. The learned District Judge decided against that contention and dismissed the second execution petition. The present appeal is against that order of dismissal.

(2.) Mr. Rajah Aiyar, who appears for the plaintiff, has first contended that the application for extended time for payment, which was made on the 8 of August, 1921, was a step-in-aid of execution within the meaning of Art. 182 of the Limitation Act. He has first referred us to Sankara Nainar V/s. Thangamma (1921) I.L.R.45 M.202 : 41 M.L.J. 374 in which it was held that an application made by a mortgagor for extension of the time allowed him for payment in a decree for redemption was a step-in-aid of execution. With very great respect I am not able to understand that decision. The application of the mortgagor in that case appears to me to have been an application to extend the time fixed in the original decree, that is an application to vary the original decree. There are provisions for making such applications in respect of redemption decrees. I do not myself understand how such an application could be treated as coming within the words "step-in-aid of execution" in Art 182 of the Limitation Act. But that, as I have said, was a decision in a mortgage suit and so perhaps may be regarded as not exactly applicable to the present case. What appears to be of more use to the plaintiff in this case is the decision in Abdul Kader Rowther V/s. Krishnan Mala-val Nair(1913) I.L.R. 38 M.695: 26 M.L.J. 433 in which an application for time to get an encumbrance certificate for the purpose of a sale in execution was regarded as a step-in-aid of execution. Mr. Justice Ayling in Masilamani Mudaliar V/s. Sethuswami Aiyar (1916) I.L.R.41 M.251:33 M.L.J. 219 expressed dissent from that view; and it has to be noticed that there is a decision directly in conflict with it in Ramaswami V/s. Veeranna . But Mr. Rajah Aiyar has brought to our notice two cases of the Bombay High Court, Haridas Nanabhai V/s. Vithaldas Kisan-das (1912) I.L.R. 36 B. 638 and Seshadasacharya V/s. Bhimacharya (1912) I.L.R. 37 B. 317 in which applications for time for getting copies of decrees or other documents were held to be steps-in-aid of execution, and has also quoted Pitam Singh V/s. Tota Singh (1907) I.L.R. 29 A. 301. Bhairon Prasad V/s. Amina Begam (1916) I.L.R. 38 A. 690 and Raghunath Prasad Singh V/s. Lachmi Narain Singh (1925) I.L.R. 47 A. 667 which are to the same effect. But, even if to ask for time to. get from other persons documents necessary for execution proceedings can properly be regarded as a step-in-aid of execution, in my opinion to defer, or to ask time for, doing something which concerns the decree-holder himself cannot properly be regarded as aiding execution. It is rather in my opinion postponing execution. To say that it is aiding execution to ask for extended time for payment, because the decree- holder, if he gets time, may be able to earn or borrow or otherwise raise money, appears to me unreasonable; and no decision has been brought to our notice in which an application for time for that purpose has been held to be a step-in-aid of execution. The payment of the money may well be a step-in-aid of execution; but the means and the opportunity of the decree-holder for raising it appear to me to be entirely unconnected with execution. In my opinion, therefore, the application of the plaintiff for further time to make the payment was not a step-in-aid of execution.

(3.) But Mr. Rajah Aiyar has contended alternatively that Art. 182 of the Act has no relation to this case, because in the decree no time was fixed for the payment of the amounts for improvements and they could not have been paid on the date of the decree as they had not then been determined. That appears to me to be a good argument, and, if it is so, then we must turn to Art. 181. If we do that, we find that the period of limitation is three years from the date when the right to apply accrues. Mr. Rajah Aiyar indeed goes further and has contended that, as no time was fixed for payment in the decree, the plaintiff might have paid at any time up to the end of the twelve years, and in support of that he has quoted Rukmina Knar V/s. Sheo Dat Rai (1919) 17 A.L.J. 841 and Chhedi V/s. Lain (1902) I.L.R. 24 A. 300. Neither of those cases appears to me to support that contention as each turned upon the interpretation of the particular words of the decree concerned. In the first case the decree-holder was at liberty to pay the amount at any time in a certain month in any year. In the second case, which was one of pre-emption, time was held to run from the date of the payment of the pre-emption amount within the period allowed in the decree. Neither of those cases, I think, can helpthe plaintiff. The appropriate article appears to me to be Art. 181, and we have only to determine the date when the right to apply accrued. In this case the accrual could not be a continuing thing; the right must have accrued on some particular date. Now, as I have said, the District Judge left the amounts to be paid for improvements unsettled in the decree, and under the decree they were to be fixed later on the report of a commissioner. A commissioner was appointed, and on his report the District Judge fixed the amounts on the 12 of November, 1920. In my opinion the effect of that was that those amounts were fixed upon that day and then became part of the decree. If there was anything irregular in the learned District Judge's procedure in arriving at his decree in that way, the plaintiff or any one else concerned had his right to appeal; but that is not a question to be decided in execution. The amounts were fixed on the 12 November, 1920, and the order then made was that they should be paid by the 17 of December, 1920. But, as I have mentioned, they were not paid, and that execution petition was eventually dismissed on the 16 of August, 1921. Mr. Rajah Aiyar contends that, even if we are to take the amounts as brought into the decree when the District Judge eventually fixed them in November, 1920, yet, because the execution petition was not disposed of until the 16 of August, 1921, his right to apply within the meaning of Art. 181 did not arise until the dismissal of the petition on the 16 of August, 1921. That appears to me an untenable contention. The suggestion is that the fixing of the amounts on the 12 of November, 1920, was merely an interlocutory matter, which did not really take effect until the execution petition was finally disposed of in August, 1921. But, if we look upon the fixing of the amounts as an interlocutory matter incidental to the execution petition, when that petition was dismissed, the order fixing the amounts went with it. I do not think that is the proper way to regard the matter. If we remember the way in which this decree was drawn, the fixing of the amounts by the learned District Judge on the 12 of November, 1920, appears to me to have been the final settling of the decree, and from that date the plaintiff was at liberty to make his payment and his right to apply within the meaning of Art. 181 accrued.