P P KOYAKUTTI Vs. AVEERANKUTTI

JUDGEMENT

(1.) The main question argued in this appeal is whether an application to execute the final decree in a suit on a mortgage is barred by limitation. The relevant dates necessary for its disposal are as follows:

(2.) The learned District Munsif held following the decision in Somar Singh V/s. Deonandan Prasad Singh (1927) I.L.R. 6 Pat. 780 that the application was not barred by limitation. But the learned Subordinate Judge following the decision of Madhavan Nair, J., in Ahammad Kutty V/s. Kottekkat Kuttu (1932) 64 M.L.J. 251 : I.L.R. 56 Mad. 458 held that it was barred. The Art. of the Limitation Act applicable to the case is Art. 182(2):

(3.) The view of Madhavan Nair, J., is that the appeal in column 3 must be from the decree or order sought to be executed, that the appeal from the preliminary decree could not be held to be an appeal from the final decree sought to be executed and when there is no appeal against the final decree, limitation would run from the date of the said decree. The view of the learned Judges of the Patna High Court in Somar Singh V/s. Deonandan Prasad Singh (1927) I.L.R. 6 Pat. 780 which was dissented from by Madhavan Nair, J., is thus expressed by Kulwant Sahay, J., at p. 785: There is nothing here to show that the appeal must be against the decree sought to be executed. In my opinion the intention of the Legislature in making the provision was that if an appeal in any way imperils the decree sought to be executed then the date of the final disposal of the appeal should be the date from which the period of limitation ought to be computed.