VARADARAJA MUDALI Vs. MURUGESAM PILLAI

JUDGEMENT

(1.) The judgment-debtor is the appellant. His learned Vakil Mr. T.R. Venkatarama Sastriar has raised two contentions in his arguments before us, those two contentions being: (a) that the application in execution made by the decree-holder dated 4th March 1908 was barred by limitation and, (b) that the relief prayed for in that application could not be granted to the decree- holder, the matter being res judicata against the decree-holder by reason of a prior execution petition dated 13th September 1905 praying for the same relief having been dismissed on the ground that by Section 99 of the Transfer of Property Act the decree-holder could not brin to sale the attached property subject to the decree-holder s own mortgage in execution of the money-decree, though that decree was obtained-on a cause of action other than the mortgage document. (Some other contentions suggested before us need not be noticed as they have not been raised in the grounds mentioned in the memorandum of appeal.)

(2.) Contention (a) on the question of limitation is based on the argument that the application of 13th September 1905 was not in accordance with law as it prayed for a relief which could not be legally granted by the court and that an application not in accordance with law cannot furnish a fresh starting point of limitation as the expression used in Clause 5 of Article 182 of the Limitation Act is " the date of applying in accordance with law to the proper Court for execution, or to take some step in aid of execution of the decree or order. "But the learned District Judge does not rely on Clause 5 of Article 182 but on Clause 6 of the same article. Mr. Venkatrama Sastriar therefore further argued that clause 6, though it used the wide phrase " the date of issue of notice to the person against whom execution is applied for to show cause why the decree should not be executed against him ", must be confined to the date of the issue of such notice in respect of an execution application made in accordance with laio and ought not to be extended to the date of issue of notice in respect of an application not in accordance with law. (The execution petition of 1905 was dated 13th September 1905 and the date of the issue of such notice seems to have been about a week later). I see no sufficient reason why the words " in accordance with law" found in Clause 5, should be introduced into clause 6 when the legislature has not thought fit to do so. Mr. Venkatrama Sastriar argued that if those words are not introduced the mere issue of a notice in respect of an execution petition which is itself barred by limitation might be contended to give a fresh starting point for limitation. The answer to this objection is that a fresh starting point can be given to a right to sue or to apply only when the right had not become barred on the date of the alleged fresh starting point and that a right to sue to apply once barred by limitation cannot be revived. This was the answer made to a similar argument addressed for the judgment-debtor in the case reported in Jamna Did v. Bishnath Singh (1909) 6 A.L.J.R. 944.

(3.) Next it was argued that the issue of notice in respect of an execution application not made to the proper court might be contended to give a fresh starting point of limitation if clause 6 was given too wide an interpretation. The answer to this objection is that an application made to a court having no jurisdiction will be treated as waste paper and the notice issued on such an application by such a court is also of no value in the eye of the law.