ALAYIL KALATHIL KAMBIL ACHUTHAN Vs. KUNNAMBRATH ABDU

JUDGEMENT

(1.) This Civil Miscellaneous Second Appeal arises in connection with the execution of the appellant's decree in A.S. No. 273 of 1918, filed against the decision is O.S. No. 733 of 1915 on the file of District Munsif's Court at Cannanore. The legal representative of the 1 plaintiff, petitioner, is the appellant.

(2.) The point for decision is a pure question of law, viz., whether the petitioner's application for execution is not barred by limitation. The application for execution was filed on the 26 of September, 1922. The date of the appellate decree, is the 27 of February, 1919. The application is, therefore, clearly barred by limitation. But the petitioner states that his application is saved from the bar of limitation, either under Section 19, or under Section 14 of the Limitation Act, as the 2nd defendant, in O.S. No. 733 of 1915, has made an acknowledgment of liability, by referring to the existence of this decree in his plaint, in O.S. No. 348 of 1921 and also that he is entitled to deduct the time taken by him, in defending the said suit (O.S. No. 348 of 1921). If he succeed a in either of these contentions, the lower Court's order will have to be set aside. The plaint in O.S. No. 348 of 1921, was filed on the 11 of July, 1921, and the suit was finally withdrawn on the 28 of July, 1922.

(3.) To appreciate the questions raised in this case, it is necessary to give a somewhat detailed statement of the facts, regarding O.S. No. 733 of 1915 (A.S. No 273 of 1918) and O.S. No. 348 of 1921. The first plaintiff, namely, the petitioner in the execution application, along with others, instituted O.S. No. 733 of 1915, for removing the 1 defendant in that suit their Karnavan, from his karnawanship and also for recovery, with future mesne profits, of possession of certain items of property, which he had given on a kanom of Rs. 500, in favour of the 2nd defendant after declaring that the kanom was not valid and binding on their tar wad. The properties, though given to the 2nd defendant on kanom, were in the possession of the karnawan, as he had taken them, on a lease from the 2nd defendant agreeing to pay an annual rent. It was decreed that on plaintiff's paying Rs. 148-14-1 to the 2nd defendant, the 1 plaintiff, as the next karnavan of the tarwad, be put in possession of the properties mentioned in the plaint. In the appeal against this decree, filed by the 2nd defendant and decided on the 27 of February, 1919 the amount payable to him was enhanced from Rs. 148-14-1 to Rs. 266-14 1, the decree of the lower Court being confirmed in other respects. On the 11 of July, 1921, the 2nd defendant in O.S. No. 733 of 1915, filed O.S. No. 348 of 1921 in the District Munsif's Court of Telliehery, to recover from the 1st defendant and the 1 plaintiff in O.S. No. 733 of 1915 this sum of Rs. 266-14-1, as well as the rent due under the lease. It will be noticed, that instead of claiming the sum of Rs. 500 for his kanom, he claimed only Rs. 266-14-1, the amount actually allowed to him, as per the appellate decree, which is now sought to be executed. This suit, as I have already said, was eventually withdrawn by him. As mentioned above, the statements made by him in the plaint in this suit are now relied upon by the petitioner in the execution application, to save his petition from the bar of limitation, under Section 19 of the Limitation Act and he also claims that he is entitled to exclude In computing the period of limitation, the time spent by him in defending the suit, O.S. No. 348 of 1921 from the date of institution, namely, the 11 of July, 1921 to the 28 of July, 1922, when it was ultimately withdrawn.