MANGAMMA NAYAKURALU Vs. BMRAMDASAPPA NAYANIMAVARY

JUDGEMENT

(1.) This is an appeal giving rise to a somewhat important point of limitation, and the dates are important. The appellant is the judgment-debtor, the wife of a certain Zamindar, against whom a suit was filed which resulted in a decree on the 10 April, 1911, subsequently confirmed on appeal to lower Appellate Court on 28 March, 1912. The decree-holder applied on 15 August, 1912, for execution and attempted to attach the Zamindari properties. Thereupon the defendant raised funds and satisfied the decree on 14 July, 1913, and the execution petition was dismissed. An appeal from the decree of the lower Appellate Court, dated 28th March, 1912, was preferred to the High Court which, by its decree, dated 23rd April, 1914, introduced a modification which has given rise to the question at issue as in the second appeal the High Court modified the decree by adding the words "excluding the Zamindari." After the High Court decree the 1 defendant filed I.A. No. 19 of 1916 for refund of the amount paid in 1913 in satisfaction of the decree on the ground that it was realized by the decree-holders by proceeding against Zamindari properties which were not liable under the modified decree of the High Court. The order of refund was passed on 30 March, 1918 and on 1 November, 1918, the appellant got back the amount she paid in satisfaction of the decree, i.e., the whole amount was refunded. On 22nd April, 1920, the decree-holder presented the present application for execution against the assets of the 1st defendant's husband, and the question is, is this application in time? Both the lower Courts have held it is.

(2.) We have been referred to a number of cases on the subject which may be said to fall into two main categories : (1) The class of cases which regards a subsequent proceeding in execution as a continuation of a prior one a doctrine apparently introduced in order to obviate the provisions of the Limitation Act of 1877, Section 15, which could not be applied to applications but was only applicable to suits; and (2) the other class of cases recognises that Art. 182 of the present Limitation Act is not exclusively to be applied to execution applications but there may be certain instances in which it would be right and proper to apply Art. 181. The effect of this class of cases would be to give a fresh starting point from the time when the right to apply accrues. Another possibility is suggested by the learned vakil for the appellant, namely, that the time during which the decree- holders were prosecuting their original execution application should be excluded from computation. I can, however find no authority for this unless it can be construed as part of what may be called the continuation theory. A quite possible view is that down to 1918 the decree was in fact non-executable by the decree- holders as they had been paid in full. I am in favour of regarding 1918 as a fresh starting point of limitation by the application of Art. 181. That Art. 181 can be applied to execution matter was established in Rungiah Goundan and Co. v. Nanjappa Rao (1903) 26 Mad. 780, which held that Art. 179, i.e., Art. 182 is not exhaustive of applications for execution of decrees and that it is not the law that Art. 178 (i.e., Art. 181) cannot be applied to any application for execution of any decree. See also the Privy Council case in Rameshwar Singh v. Homeshwar Singh A.I.R. 1921 P.C. 31, where their Lordships applied Art. 181 holding that Art. 182 did not apply inasmuch as the decree in question was not under certain circumstances capable of being enforced. A very similar case to the present is the case referred to by the learned District Judge, Ramineedi Venkata Appa Rao V/s. Lakkoju Chinna Ayyanna (1906) 30 Mad. 209. There the sale in execution was set aside, and the decree-holder was ordered to refund and it was held that on the decree-holder subsequently applying to execute his decree such application is governed by Art. 178, i.e., Art. 181, when time began to run against him from the date when he is ordered to refund the purchase money when alone his right to apply accrued. The Court there was obviously pressed by the difficulty of avoiding Art. 179, i.e., Art. 182, but they were equally pressed by the injustice that would accrue if the opposite view were taken. Two older authorities can be cited, one in Issurree Dassee V/s. Abdul Khalak (1878) 4 Cal. 415 which is an example of what may be called the continuation theory. There the former execution proceedings were struck off the file. Subsequently a refund was ordered, and the plaintiff 18 or 19 months after applied to execute his decree. The High Court held that under the circumstances the application should be considered as an application to continue the old proceedings. Similarly in Kalyanbai Dipchand V/s. Ghansham Lal Judanathji (1880) 5 Bom. 29 the learned Judges were pressed by the fact that Section 15 of the Limitation Act of 1877 was in terms applicable to applications. They held that if Art. 179 applied " the most monstrous injustice would ensue," and construed the application as an application to continue the former proceedings.

(3.) An objection has been advanced to regarding the present case as a continuation from the fact that a different property, i.e., non-zamindari property, is now to be proceeded against, whereas the decree was admittedly previously satisfied from the zamindari property. The answer to that objection appears to me to be twofold, namely, that this is the first application to execute the High Court decree as such, and therefore the decree-holders are perfectly justified in proceeding against any property of the appellant which is non-zamindari property; and secondly, it has been held in Gnanendra Kumar Rai Chowdhri V/s. Rishendra Kumar Rai Chowdhri (1918) 22 C.W.N. 540 that the filing of a supplementary list of properties may be taken as part of the original application and that the decree- holders need not be confined to the properties they bad originally specified. See also the remarks of Seshagiri Aiyar, J., in Rajah of Karvetnagar V/s. Venkata Reddi (1915) 39 Mad. 570" the fact that the decree holder moved the Court only for a particular remedy open to him cannot lead to the inference that he was not entitled to ask that his decree be satisfied by other means which the law enables him to adopt." Also in Mohini Mohan Sircar V/s. Navadip Chendra Biswas (1918) 47 I.C. 911, a decision of the Calcutta High Court, it was held that when on an application for execution made in accordance with law execution cannot be successfully taken against the property specified by reason of causes for which the decree-holder is in no way responsible he should not be confined to the properties first specified and it is open to him to ask the Court to proceed against other properties specified in his supplementary list. There the first application proved ineffective against the moveables of the judgment-debtor as the result of proceedings taken by the latter. His subsequent application was to attach the immovables. Here in the present case the payment in discharge of the original execution petition was of course made by the judgment-debtor, and I think it would be unfair to hold that this must be held to be a matter for which the decree- holder is responsible. Further his prior execution proceedings proved ineffectual owing to the modification of the decree by the High Court which is certainly outside the control of the decree-holder. Several other authorities were cited to us. But I do not think it necessary to review them all I think the case may fall under either of the theories that I have set out above. But it seems to me that some of the cases have proved to an extreme length on what I have called the continuation or revival theory, and speaking for myself, I think it more satisfactory to rest the case on the application of Art. 181 of the Limitation Act. It is clear that in either case the application is within time. In my opinion, therefore, this second appeal must be dismissed with costs. Wallace, J.