Period barred for institution of execution petition whether can be excluded from the period of limitation.

The petitioner in both the civil revision petitions is the decree holder in O.S. Nos.380 and 381 of 1973 on the file of the District Munsif’s Court, Thiruthuraipoondi. The respondent in both the revisions is the judgment-debtor in the suits.

2.. The short facts are, in both the suits, preliminary decree was passed on 211. 1973 and final decree on 27. 1974. The petitioner/decree-holder filed execution petitions for realising the decree amount together with interest by sale of the immovable property mentioned in the execution petitions. According to la Devar (AR.Lakshmanan, J.) 399 the petitioner, he bona fidely believed that Sec.3 of the Tamil Nadu Indebted Agriculturist (Temporary Relief) Act X of 1975 would operate as a bar to his execution petitions and hence he filed two execution petitions on 2. 1990 and 12. 1990 respectively. The time during which Sec.3 of Tamil Nadu Act X of 1975 operated as a bar shall be excluded as per Sec.5 of the said Act. The court below held that the execution petitions are out of time. It is against the said order, the above revisions have been filed by the decree holder.

3. Learned counsel for the respondent/ judgment-debtor raised an objection stating that the execution petitions have been filed beyond the period of limitation and that the decree-holder is not entitled to exclude four years, four months and 27 days (moratorium period). It is also contended that since the decree amount is being the balance of sale consideration, the same will not come under the purview of the Debt Relief Act.

4. Mr.S.Srinath, learned counsel, for the petitioner contended that the petitioner/ decree-holder believed in good faith that the respondent/ judgment-debtor would be entitled to the benefits of the Debt Relief enactments. It is further stated that the court below has failed to see that even in the counter-affidavit, the respondent does not say that he is not an agriculturist, to whom the debt relief enactments are applicable. To be more specific, the court below has failed to notice that the respondent does not controvert that he is an agriculturist and that the petitioner bona fide believed that the amount payable to him by the respondent is a debt within the meaning of the Debt Relief Act and hence, should have excluded the time.

5. The following judgments on the subject were cited by the counsel appearing on either side:

1. Rama Reddiar v. Raja Reddiar, (1982)1 M.LJ. 288, dated 9. 1981 by P.Venugopal, J.

2. Lakshminarayana Reddiar v. T.K.S. Balarama Chettiar, (1985)1 M.L.J. 148, dated 14. 1984 by V.Ratnam, J., as he then was

3.. Sivasubramaniam alias Kandaswami v. Mohideen Pitchai, 99 L.W. 198, dated 28. 1985 by S.A. Kader, J.

4. Vythilingam Chettiar v. Rangaswami Padayachi, (1988)2 M.LJ. 339, dated 9. 1988 by Sathiadev and Sivasubramaniam, JJ.

5. Sri Varalakshmi Finance Syndicate v. R.Govindarajulu, (1990)2 L. W. 351, dated 10. 1990 by T.Somasundaram, J.

6. Sri Agastheeswaraswami Devasthanam v.RajagopalKonar, (1992)1 L.W. 71, dated 37. 1991 by M.Srinivasan, J.

7. Kangan v. Kannammal, Second Appeal No. 1885 of 1982, dated 12. 1996 by D.Raju, J.

.6. The only point which arises for consideration in these two revision is: "Whether on a combined reading of Ordinance I of 1975, replaced by the Tamil Nadu Indebted Agriculturists (Temporary Relief) Act 10 of 1975, the Tamil Nadu Indebted Agriculturists (Temporary Relief) Act 15 of 1976, as amended by the Tamil Nadu Debt Relief Laws (Amendment) Act of 1977, the Tamil Nadu Debt Relief Laws (Second Amendment) Act of 1977, the Tamil Nadu Debt Relief Laws (Amendment) Act, 1978 and the Tamil Nadu Debt Relief Act 40 of 1979, the institution of an execution petition is barred from 11. 1975 to 16. 1979 for a period of 4 years, 4 months and 27 days, and if this period is excluded, the execution petitions instituted by the petitioner herein are in time?

7. The point: In all the above cited judgments, the learned single Judges and also a Division Bench