MADURI LAKSHMINARASIMHAM Vs. MADURI SURYANARAYANA

JUDGEMENT

(1.) The appellant was the first judgment-debtor in O.S. No. 16 of 1932 on the file of the District Court, Vizagapatam, which on transfer was re-numbered as O.S. No. 6 of 1936 on the file of the Court of the Subordinate Judge of Chicacole. The suit was one for partition and consequential reliefs by a member of a joint Hindu family. The final decree which is dated 31 March, 1939, provided inter alia for the payment of Rs. 4,515 by the first defendant personally and by defendants 2 and 3 out of their family properties towards mesne profits from the year 1924 till date of suit (3 1 August, 1932) with interest thereon at the rate of six per cent per annum from date of plaint and also for the payment similarly of three sums of Rs. 530 each towards mesne profits for the years 1932-33, 1933-34 and 1934-35 with interest on the respective amounts at six per cent, per annum from 1st March, 1933, 1 March, 1934, and 1 March, 1935. Costs of the suit were also awarded to the plaintiff in a sum of Rs. 1,019-15-0. As the three sums of Rs. 530 together amounting to Rs. 1,590 were profits which arose subsequent to suit and on which therefore no court-fee was paid with the plaint there was a direction that the plaintiff should pay Rs. 157-7-0 towards the court-fee payable on that amount. The plaintiff applied for execution of the decree as to past mesne profits and costs in E. P. No. 59 of 1939 which was filed on 1 July, 1939. He made a reservation in the execution petition that as regards mesne profits due to him from the year 1932 up to the end of 1934 he "will take out execution proceedings later on." The execution petition was finally dismissed on 25 August, 1941, with a direction that the attachment should continue for one month. On 23 September, 1941, the decree-holder again applied for execution in respect of past mesne profits and costs with a similar reservation as to mesne profits subsequent to suit. Certain properties of the judgment-debtors were sold in execution on 27 March, 1944. The judgment-debtors deposited Rs. 9,503 under Order 21, Rule 89 of the Civil Procedure Code and on 6 July, 1944, the sale was set aside, part satisfaction of the decree was entered up, the execution petition was struck off and the attachment was raised. Meanwhile in E. P. No. 92 of 1943, dated 25 March, 1943, the decree-holder applied for delivery of properties allotted to him but this petition was dismissed on 17 February, 1944.

(2.) On 24 April, 1944, the decree-holder applied in E. P. No. 65 of 1944, out of which the present Letters Patent Appeal has arisen for recovery of Rs. 2,756-9-6 being the amount of subsequent mesne profits and interest thereon and the court- fee payable in respect of the former amount, by bringing the immoveable properties of judgment-debtors 1 and 3 to sale. On 24 April, 1944, the decree- holder also applied in E. P. No. 264 of 1944 for extension of time for payment of the court-fee payable in respect of subsequent mesne profits and on the Court granting him the permission asked for he paid the court-fee on that day itself. In E. P. No. 65 of 1944, the principal contention was that it was barred by limitation. Upholding this contention the learned Subordinate Judge of Chicacole dismissed the petition but on appeal to this Court, Chandrasekhara Aiyar, J., held that the petition was in time. The present Letters Patent Appeal is against the latter finding and the only question that has been argued before us is one of limitation.

(3.) The first step in the argument of Mr. Narasaraju, the learned Advocate for the appellant is that even in respect of that portion of the decree which directs the payment of Rs. 1,590 towards the mesne profits subsequent to suit, limitation tegan to run on the date of the decree itself notwithstanding that execution of that part of the decree could not be sought without the previous payment of the court- fee payable on it by virtue of the provisions of Section 11 of the Court-Fees Act. This argument is fully supported by two decisions of this Court reported in Venkatappa V/s. Venkatappa and Venkatmya Goundan V/s. Mallappa Goundan , the former of which refers with approval to a decision of the Calcutta High Court reported in Kishorimohan Pal V/s. Provashchandra A.I.R. 1024 Cal. 351. Dealing with the requirement that a decree for partition must be drawn up on non-judicial stamp paper in accordance with Art. 45 of the Indian Stamp Act, before it is put in execution, it was held in these decisions that the date of the decree for the purpose of Art. 182 of the Indian Limitation Act is the date on which the judgment is pronounced and limitation runs from that date although the party in whose favour the decree is passed has not furnished the stamp paper for purpose of the drawing up of the decree.