VEMPATI MANGAMMA Vs. DYTA NARAYANAPPA

JUDGEMENT

(1.) The question is whether the appellant's (decree-holder s) execution petition, dated 9 June, 1928, is barred by limitation. He obtained his decree for money on 20 April, 1922. The judgment-debtor (respondent) on 3 May, 1924, put in a petition stating that he had discharged the debt and to enter up satisfaction which was ordered on 23 December, 1924. Thus the decree was declared incapable of execution as it was discharged about 4 months before the expiry of the first period of 3 years from the date of the decree. The decree-holder appealed from this decision and the appellate Court on 26 February, 1926, reversed it and held that the decree was unsatisfied. The decree-holder's first execution petition was the one dated 9 June, 1928, which both the Lower Courts have held to be barred by limitation under Art. 182 of the Limitation Act.

(2.) It is clear that if the starting point is calculated from the date mentioned in Art. 182(1) and if that date is taken as 20 April, 1922, without giving any effect to the fact that though that was the original date when the decree was passed, the decree as such ceased to have legal effect between the parties or to be executable as such on 23 December, 1924, when it was declared satisfied and was restored to force and executability only on 26 February, 1926, the petition would be barred. The appellant's argument is that those facts cannot be ignored and that a new starting point must be calculated from 26 February, 1926, when the decree was restored to life and invokes the principle of Peer Annual V/s. Nalluswami Pillai (1930) I.L.R. 54 Mad. 455 : 60 M.L.J. 239 for dating the date of the decree from the time when having been declared inexecutable that declaration was itself set aside on appeal. Alternatively he argues that by reason of those facts, a fresh right to apply has arisen and the application must be taken as falling within Art. 181. Both these are merely different means of arriving at the same result - that a fresh right to execute the decree arose on 26 February, 1926. On the other hand the respondent urges that there is no such fresh right and that the only right is to execute the decree of 20 April, 1922, within any of the periods mentioned in column 3 of Art. 182. The decision depends on acceptance of either of these arguments.

(3.) As the Privy Council observed in Nagendra Nath Dey V/s. Suresh Chandra Dey (1932) L.R. 59 I.A. 283 : I.L.R. 60 Cal. 1 : 63 M.L.J. 329 (P.C.) the only course open to the Court is to give effect to the words of the statute. But in so doing the Privy Council themselves and the Courts in India have by interpretation understood the applicability of Art. 182 as a whole or the words in the third column of that and other Articles in such a way in particular situations and classes of cases as to avoid obvious injustice and inconvenience to which the opposite interpretation would lead. The theory of continuation or revival of execution petitions dismissed for statistical purposes and without any fault of the decree- holder but because there was some collateral proceeding which made execution practically impossible is one of the methods by which injustice is avoided in some cases. That theory is of no use in this case because the decree-holder had not put in any execution application before the present one. As to this theory limited in the above way Viscount Cave remarked drily during the argument in Rameshvar Singh V/s. Homeshvar Singh (1920) L.R. 48 I.A. 17 : 40 M.L.J. 1 at 2 (P.C.) that you must make a hopeless application or this principle will not apply. If for instance this decree-holder had in the 4 months left to him between 23 December, 1924 and 20 April, 1925, filed an application for execution it would certainly have been dismissed as the District Munsif had held on 23 December, 1924, that the decree was satisfied. Such dismissal was however necessary for this principle to be of avail. But it would keep the decree alive.