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Andhra Pradesh High Court
Judges : M.SESHACHALAPATI, O.CHINNAPPA REDDY, P.JAGMOHAN REDDY
Katragadda Ramayya - Appellant
Versus
Kolli Nageswararao - Respondent
Decided On : 09-25-67
The 12-year outer limit prescribed in Section 48 of the Code of Civil Procedure (CPC) cannot be extended by a fresh period by reason of an acknowledgment under Section 19 of the Limitation Act, 1908 (LA). Section 48, CPC, is a special law relating to limitation embedded in a general law prescribing procedure. Section 19, LA, which provides for a fresh period of limitation from the date of acknowledgment, is not applicable to Section 48, CPC, as it is not one of the sections specified in Section 29(2) of the LA. The scope and object of Section 48, CPC, and Section 19, LA, are totally different. Section 48, CPC, prescribes a period of limitation and enumerates the contingencies under which that period could be extended. Section 19, LA, provides for a fresh period of limitation from the date of acknowledgment. The period prescribed for an application for execution of a decree or order is extended by the application of Section 19, LA. However, no period for filing an application for execution of a decree or order has been fixed or prescribed under Section 48, CPC. Section 48, CPC, prohibits a court from executing a decree after the expiration of 12 years from the date of the decree.
Fact of the Case:
The appellants filed an execution petition (E.P.) in 1952 to execute a decree passed in 1937. The judgment debtors contended that the E.P. was barred by limitation under Section 48 of the CPC. The appellants argued that the period of limitation was extended by an acknowledgment made in 1943 under Section 19 of the LA. They also contended that the period during which an order of attachment subsisted under Order 21, Rule 53 of the CPC should be excluded from the period of limitation under Section 15 of the LA.
Finding of the Court:
The court held that Section 48, CPC, is a special law relating to limitation embedded in a general law prescribing procedure. Section 19, LA, which provides for a fresh period of limitation from the date of acknowledgment, is not applicable to Section 48, CPC, as it is not one of the sections specified in Section 29(2) of the LA. The scope and object of Section 48, CPC, and Section 19, LA, are totally different. Section 48, CPC, prescribes a period of limitation and enumerates the contingencies under which that period could be extended. Section 19, LA, provides for a fresh period of limitation from the date of acknowledgment. The period prescribed for an application for execution of a decree or order is extended by the application of Section 19, LA. However, no period for filing an application for execution of a decree or order has been fixed or prescribed under Section 48, CPC. Section 48, CPC, prohibits a court from executing a decree after the expiration of 12 years from the date of the decree. The court also held that the period during which the order of attachment subsisted under Order 21, Rule 53 of the CPC cannot be excluded from the period of limitation under Section 15 of the LA.
Issues: 1. Whether E.P. No. 83/52 is a fresh application or is it merely to revive an earlier E.P. viz, 3/46 which was dismissed as not pressed. 2. Whether E.P. 26/40 dated 19-4-1940 which was closed by reason of Act IV of 1938 can be revived and proceeded with. 3. Whether the period during which the precept, issued by the Subordinate Judge, Tenali on 11-11-1940 to the District Judge, Masulipatam, served on the Sheristadar on 15-11-1940, subsisted can be excluded under Section 15 of the Limitation Act for the purpose of computing the 12 years outer limit prescribed in Section 48, Code of Civil Procedure. 4. If the 5 years 2 months and 21 days, i. e. , the period during which the precept subsisted, cannot be excluded by the application of Section 15 of the Limitation Act, whether by reason of acknowledgment in Ex. A-10 the decree-holder is entitled under Section 19 of the Limitation Act to a fresh period of 12 years from the date of the acknowledgment, namely, 4-1-1943; and 5. Whether the execution petition Ex. A-7 filed on 6-4-1949, which was obviously beyond the period of 12 years from the date of the decree passed on 26-2-37 regarding which, notwithstanding an objection by the judgment-debtors that it is barred by Limitation, was dismissed as not pressed on 31-8-1949, operates as res judicata.
Ratio Decidendi: Section 48, CPC, is a special law relating to limitation embedded in a general law prescribing procedure. Section 19, LA, which provides for a fresh period of limitation from the date of acknowledgment, is not applicable to Section 48, CPC, as it is not one of the sections specified in Section 29(2) of the LA. The scope and object of Section 48, CPC, and Section 19, LA, are totally different. Section 48, CPC, prescribes a period of limitation and enumerates the contingencies under which that period could be extended. Section 19, LA, provides for a fresh period of limitation from the date of acknowledgment. The period prescribed for an application for execution of a decree or order is extended by the application of Section 19, LA. However, no period for filing an application for execution of a decree or order has been fixed or prescribed under Section 48, CPC. Section 48, CPC, prohibits a court from executing a decree after the expiration of 12 years from the date of the decree.
Final Decision: The appeal was dismissed with costs.
( 1 ) MANOHAR Pershad, J. (as he then was) and Kumarayya, J. , after hearing fully this Letters Patent Appeal, preferred against a judgment of Sharfuddin Ahmed, J. , referred the case to a Full Bench because not only a question as to whether Sec. 19 of the Indian Limitation Act, 1908 (hereinafter referred to as "the Limitation Act") controls Section 48, Civil P. C. but also in addition, other questions of law and fact are involved in the case. Before we set out the questions of law upon which we are required to express an opinion, it is necessary to set out briefly the relevant facts. Katragadda Rajaratnamma, whose legal representatives are the appellants herein filed a suit, O. S. No. 32/35 in the District Judges Court, Masulipatnam on the foot of a promissory note dated 28-4-1932 and obtained a decree on 26-2-1937 for recovery of Rs. 4484-11-2 together with interest and costs against defendants 1 and 2, Sunkara Ramakotayya and Kolli Seshayya personally and against all the defendants from their joint family assets. Defendants 1 and 2 died and their legal representatives have been brought on record, respondents 1 to 3 herein being the two sons and widow of defendant. An execution petition No. 26 of 1940, was filed in the executing Court on 2-2-1940, for the sale of properties which were attached before judgment. That E. P. was, however, closed on 19-4-1940, as a consequence of an application filed under Section 20 of the Madras Agriculturists Relief Act (4 of 1938), for scaling down of the debt, the decree was amended on 8-4-1941.
( 2 ) IT may however be stated that the decree-holder in O. S. 32 of 1935 viz. , Katragadda Nagaratnamma filed a suit O. S. No. 67/33 on the file of the Sub Court, Tenali against Devineni Basavayya and Devineni Raghavayya. That suit was dismissed with costs. There was an appeal against the dismissal of that suit, which also was dismissed on 9-9-1938 (vide Ex. A-8 ). Since the costs were not paid by Katragadda Nagaratnamma, the judgment-debtor, Devineni Basavayya and Raghavayya filed E. P. 67/40 for execution and had a precept issued by the Sub Court, Tenali, to the District Judges Court, Masulipatam, for staying the execution of the decree in O. S. No. 32/35. This precept was issued on 5-11-1940 and was served on the Sheristadar of the District Court, Masulipatam on 15-11-1940 (vide Ex. A-3 (a) ). After this precept was issued, Nagaratnamma filed E. P. 41/42 in O. S. 32/35 in the District Court. Masulipatam, on 6-3-1942 (vide Ex. A-4 ). But this E. P. was returned on the ground that the decree in O. S. 32/35 was attached in O. S. 67/33, Sub Court, Tenali. The Plaintiff (Nagaratnamma) stated that she had put in a petition in the attaching Court for permission to execute her decree. Notice were directed to be issued to the Sub Court, Tenali, and several adjournments were given for payment of batta and for awaiting return of those notices. Ultimately, the attaching decree-holders (Devineni Basavayya and Raghavayya) were personally served on 9-11-1942 and the case was posted for ascertainment of the result of the petition for permission said to have been filed in the Tenali Sub Court. On 12-11-1942, the District Judge noted that permission from the attaching Court was not produced and accordingly dismissed E. P. 41/42. After the dismissal of that E. P. the plaintiff filed E. P. 3/46 in O. S. 32/35 (Ex. A-5) on 29-10-1945. But since the decree was still under attachment by reason of the precept issued by the Sub-Court, Tenali, notices under Order 21, Rule-22 to the attaching decree-holders and the judgment-debtors in O. S. 32/35 were ordered on 29-1-46. But as the batta was not paid, the E. P. was dismissed on 1-3-1946.
( 3 ) THE attaching decree-holders in O. S. 67/33. filed an Execution Application No. 54/67 Ex. A-8 praying that the decree may be transmitted to the District Munsifs Court, Masulipatam for execution. That application was returned with certain objections and in resu
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