K NAGALINGA CHETTY Vs. OKSRINIVASA AIYANGAR

JUDGEMENT

(1.) This is an appeal from an order of the learned Principal Judge of the City Civil Court in E. P. No. 759 of 1938 in M. S. C. No. 7395 of 1925. The question is whether the execution is barred by Section 48 of the Civil P. C.. The decree in the small cause suit was passed on the 2nd February, 1926. The execution petition was filed on 27 October, 1938. It was a fresh application for execution. Prima facie Section 48 prevents the Court from passing any orders for execution on such application. The decree-holder's plea was that he was entitled to execute because subsequent to the decree passed by the Court of Small Causes he had filed a new trial application in 1926 and that when that failed he had filed a revision petition in the High Court (C.R.P. No. 127 of 1927). That revision petition was dismissed with costs on 7 March, 1928 and the decree-holder contended that the period of twelve years indicated in Section 48 should be calculated from 7 March, 1928. In that case the application would of course be well within twelve years. The learned Principal Judge of the City Civil Court had decided in favour of the decree-holder. Considering what he calls an analogous provision in Art. 182 of the Limitation Act he has found that for the purpose of that article the date of the decision of a revision petition against a decree of a Small Cause Court is to be taken into account and not the date of the decree of the Small Cause Court. He has referred to the decision of the Privy Council in Nagendra De V/s. Sureschandra De (1932) 63 M.L.J. 329 : L.R. 59 I.A. 283 : I.L.R. 60 Cal. 1 (P.C.). In that case their Lordships pointed out that there was no definition of the word appeal in the Civil P. C. and that for the purpose of Art. 182 any application by a party to an appellate Court asking it to set aside or revise the decision of a Subordinate Court would be an appeal within the ordinary meaning of the word. The learned Judge of the Court below, therefore, considered that the "reasons for which an appeal was held to include a revision petition in connection with Article 182 would apply with equal force to enable a revision petition to give a fresh starting point under Section 48, Civil Procedure Code." But curiously enough after coming to this conclusion the learned Judge goes on to say: So that in computing the period of twelve years, the time taken in the revision petition will have to be deducted.

(2.) This looks as though he were applying the principle of Section 15 of the Limitation Act. But that was not a contention that was ever raised before him nor was it a contention which he appeared to be considering. The only point in dispute before him was whether the period of twelve years ought to begin on the 2nd February, 1926 or on the 7 March, 1928. The time taken for the prosecution of the civil revision petition was quite irrelevant to this question.

(3.) Learned Counsel for the appellant (judgment-debtor) has pointed out that the terms of Section 48 are very different from the terms of Art. 182 and that Art. 182 of the Limitation Act only applies to cases which do not fall within Section 48. Where an application has been made to the High Court for revision of a decree of a Small Cause Court the period of three years prescribed in Art. 182 of the Limitation Act begins to run from the date of the High Court's order on the revision petition, whether the decree of the Small Cause Court is confirmed, modified or reversed (vide Chidambara Nadar V/s. Rama Nadar . That decision, however, does not deal with Section 48 of the Civil P. C.. Now Section 48 says that: Where an application to execute a decree not being a decree granting an injuncton has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from the date of the decree sought to be executed.