NAGALINGAM PILLAI Vs. SIVACHIDAMBARA SABAPATHY DEEKSHITAR

JUDGEMENT

(1.) The learned District Munsif of Chidambaram dismissed the execution petition filed by the assignee decree-holder in Small Cause Suit No. 682 of 1923 on the ground that the same was barred by limitation under Art. 182 of the Limitation Act. The assignee decree-holder has preferred this Revision Petition.

(2.) The facts are these. The decree in Small Cause Suit No. 682 of 1923 was passed on 20th June, 1923. On 9 January, 1925, an application for execution was filed, which however was dismissed on the 23 March, 1925. On the 1 January, 1928, the Limitation (Amendment) Act IX of 1927 - amending Art. 182 of the Limitation Act - came into force. On the 23rd March, 1928, the assignee decree-holder filed another application for execution which also was subsequently dismissed for default of prosecution. The present execution petition was filed on the 25 April, 1928, and it is with reference to that petition that the learned District Munsif observe^ that it was barred by limitation. Judged by the provisions of the old Art. 182 - before it was amended in 1927 - it is clear that the learned District Munsif's decision was right. But as the amended Act came into force on the 1 January, 1928, we have to consider whether the right of the decree-holder to execute the decree had become barred by limitation on that date, i.e., on the date on which the new Act came into force. If his right had not become barred and extinguished on that date, then any application for execution which he might make after that date would be governed by the provisions of the amended Act. Now, the decree having been passed on the 20 June, 1923, the application made on the 9th January, 1925, for execution was clearly within time. The decree-holder will have time till the 9 January, 1928, for filing a petition for executing his decree, and some eight days prior to that, i.e., on the 1 January, 1928, the new Act came into force. It being therefore clear that when the new Act came into force, the right of the decree-holder to execute this decree was not barred by limitation, any subsequent application made by him to execute the decree would be governed by the provisions of the amended Act. The application made on the 23 March, 1928, was therefore in my opinion in time, the same having been made within three years from the 23 March, 1925, the date of order passed on the prior execution petition. Applying therefore the general principles that should govern a case when a new Limitation Act is passed, I think I must allow this Revision Petition.

(3.) I find that both the Calcutta High Court as well as the Patna High Court had to consider this very question. In Kanai Lall Sabui V/s. Puma Chandra Chatterjee (1930) 34 C.W.N. 733 Mallik, J., of the Calcutta High Court had to consider substantially a similar point. The learned Judge observed that the law of limitation applicable to a suit or proceeding is the law in force at the date of the institution of the suit or proceeding unless there be a distinct provision to the contrary in the Act. On facts similar to the facts of the present case the learned Judge held that if execution of the decree be not barred when the new Act of 1927 came into force, any subsequent execution application would be in time if it should fulfil the conditions prescribed by the new Act. To the same effect is the decision by a Bench of the Patna High Court-in the case reported in Sapani Patra V/s. Damodar Kar A.I.R. 1930 Pat. 207. As observed in that case, an amending Act will not disturb vested rights. If at the time an amending Act came into force the decree-holder's right to execute the decree had not become barred by limitation, the learned Judges held that the subsequent application for execution would be in time if filed within three years from the date of the orders passed on the prior execution petition.