N V RANGANANDHAM Vs. MPONNACHARAMMA

JUDGEMENT

(1.) The question for determination in this appeal is whether an application for execution of a decree is barred by limitation. The decree in question was passed by the Presidency Small Cause Court of Madras on 13 October 1925. It was transferred for execution to the District Munsif's Court at Berhampore, and the present application was filed in that Court on 6 May 1938. The execution was thus filed beyond 12 years from the date of the decree. There were some previous execution eases, and it is not disputed that the present execution is not barred under the three years rule prescribed by Art. 182 of Schedule 1, Limitation Act. The objection was taken by the judgment-debtor that the execution was barred under Section 48, Civil P.C., and also under Art. 183 of Schedule 1, Limitation Act. The learned Munsif overruled the judgment-debtor's objection and allowed the execution to proceed. On appeal to the District Judge, the objection was confined only to Art. 183 of Schedule 1, Limitation Act. The learned District Judge, agreeing with the Munsif's view, dismissed the appeal. Hence this appeal by the judgment-debtor. Mr. S.N. Sen Gupta for the appellant, in the first place contends that Section 48, Civil P.C., bars the present execution. That section enacts: Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from?(a) the date of the decree sought to be executed.

(2.) But Section 8, Civil P.C., provides: Save as provided in Secs.24, 38 to 41, 75, Clause (a), (b) and (o), 76, 77 and 155 to 158, and by the Presidency Small Cause Courts Act, 1882, the provisions in the body of this Code shall not extend to any suit or proceeding in any Court of Small Causes established in the Towns of Calcutta, Madras and Bombay.

(3.) It is, therefore, obvious that Section 48 of the Code does not apply to any proceeding in, any Court of Small Causes established in the towns of Calcutta, Madras and Bombay It is conceded that if the present execution had been taken out in the Presidency Small Cause Court of Madras, Section 48 of the Code, would not, by virtue of the provisions of Section 8 of the Code, have been applicable. It is, however, contended that as the present execution is a proceeding in a Court other than "any Court of Small Causes established in the towns of Calcutta, Madras and Bombay" Section 8 of the Code will not operate so as to make Section 48 inapplicable. This contention, if accepted, would lead to an obvious anomaly: if Section 48 is to govern the present execution, it will be barred, but if the next day a fresh application for execution is made in the Presidency Small Cause Court of Madras, the execution will not be barred. Such inconsistent position could not possibly have been contemplated by the Legislature. It seems to me that when Section 8, Civil P.C., says that "the provisions in the body of this Code shall not extend to any suit," it means that the provisions shall not also extend to any decree passed in any such suit. In this view Section 48 of the Code will not apply to a decree passed by a Presidency Small Cause Court. The point is covered by the decision of the Madras High Court in Sree Krishna Doss V/s. Alumbi Ammal 36 Mad. 108 . In that case, a decree passed by the Presidency Small Cause Court of Madras was transferred for execution to the City Civil Court. In the latter Court an application for execution was filed beyond 12 years from the date of the decree. The judgment-debtor raised the objection that the execution was barred under Section 48, Civil P.C. The lower Court gave effect to this objection and dismissed the execution case. On appeal the High Court reversed the decision, holding that Section 48 had no application. Mr. Sen Gupta argues that in that case the question of the true interpretation of Section 8, Civil P.C., as suggested by him, was not raised or decided. But the learned Judges obviously had Section 8 in their mind, because they observed: "This section Section 48, Civil P.C., is not applicable to any suit or proceeding in the Presidency Small cause Court." They further said: In our opinion the exception relating to Section 48, Civil P.C., should also naturally be understood as applicable to decrees passed by the Courts to which that section is applicable.