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1919 Supreme(Mad) 53
IN THE HIGH COURT OF MARAS
Oldfield, S Aiyar
A.T.S. Valasubramania Pillai
Versus
T.A.B Chit Company Yela Nidhi,
Decided On : 17 February, 1919
The date of the original presentation of the execution application is the starting point for limitation, as per Order XXI, Rule 17 (2) of the Code of Civil Procedure.
Headnote:
Limitation - Execution Application - The court held that the date of the original presentation of the execution application, not the date of its re-presentation, is the starting point for limitation, as per Order XXI, Rule 17 (2) of the Code of Civil Procedure. The court rejected the argument that the rule provided alternative rights to the decree-holder and affirmed that the legislature deliberately enacted that the original presentation date starts the limitation period.
Fact of the Case:
The execution application was initially presented in an improper form and was later amended after several extensions of time were granted by the lower court. The appellant argued for a later starting point for limitation based on the date of re-presentation, and also contended that the extensions of time granted were steps in-aid of execution.
Finding of the Court:
The court dismissed the appeal against the appellate order, affirming that the date of the original presentation of the execution application is the starting point for limitation. The court also rejected the argument that the extensions of time granted were steps in-aid of execution.
Issues: Proper form of execution application, starting point for limitation, and whether extensions of time granted were steps in-aid of execution.
Ratio Decidendi: The date of the original presentation of the execution application, as per Order XXI, Rule 17 (2) of the Code of Civil Procedure, is the starting point for limitation. Extensions of time granted to make an irregular application a regular one are not steps in-aid of execution.
Final Decision: The appeal against the appellate order was dismissed with costs.
Oldfield, J.
1. The execution application before us was so far from being in the proper form when it was presented, that after eight months the petitioner appellant here crossed it out and amended it byre-writing it as a whole. The interval had been spent almost entirely in appellants Vakil asking for and the lower Court mechanically granting extension of time in instalments of two weeks. The case is not creditable either to the Vakil or the Court.
2. The first point taken is that for purposes of limitation the date on which the application was finally admitted, not that on which it was first presented, is the starting point, because appellants interest is to put that starting point as late as possible. Order XXI, Rule 17 (2), of Schedule I of the Code of Civil Procedure, however, lays down that an amended application shall be deemed to have been presented on the date on which it was first presented. It is suggested that this provision does not abrogate the law, as it stood before its enactment, that the presentation should be treated as effected when the application was finally accepted, the decree-holder thus having his choice between two dates. It is sufficient that, even if the Jaw before 1908 stood as is alleged, the wording of Order XXI, Rule 17, is clear and general and does not countenance this suggestion.
3. Next it is said that time should run from some one of the various applications for time inscribed on the application, which have been referred to above, as a step in-aid of execution. Bat when the alleged step was taken there was no execution pending before the Court, which it could aid. This, therefore, also fails.
4. Lastly, it is urged that the appellant should be regarded as having really presented two applications, one of which must be deemed to have been withdrawn when he made a fundamental and comprehensive amendment above mentioned. In fact he then put in the original petition with an endorsement "filed amended" and paid for no second stamp; and it is impossible to identify any withdrawal of the old petition or presentation of a new petition with what he did.
5. The appeal against appellate order is dismissed with costs.
Seshagiri Aitar, J.
6. I agree.
7. Mr. S. Subramania Ayyar for the appellant has raised some ingenious contentions. The first is that the application for execution must be taken to have been presented on the date of its re-presentation and not on the date of its original presentation, Order XXI, Rule 17, Clause 2, Schedule I of the Code of Civil Procedure, is against this argument. Then it was suggested that this rule is only an enabling provision and that the Legislature intended to provide alternative rights to the decree-holder and not to deprive him of the existing rights. This contention was based on the facts that before the Procedure Code of 1908 was passed, there was no provision corresponding to Order XXI, Rule 17 (2) and that it was held by some Courts that for purposes of computing the period of limitation under Article 179 of the Limitation Act, it is the date of the re-presentation that should be regarded as the date of applying in accordance With law. The learned Vakil from these facts advanced a bold argument that the Legislature notwithstanding Order XXI, Rule 17 (2), intended to perpetuate the old view of the law and provided an additional right to the decree-holder to enable him to count the original presentation date as also enduring for his benefit. I am unable to accept this contention. With knowledge of the old decisions the Legislature has deliberately enacted that it is the date of the original presentation that starts limitation.
8. The next contention was that inasmuch as the Court granted a dozen times time to enable the applicant to comply with the requirements of the Code, each of those endorsements granting time was a step in-aid of execution. Reliance was placed on Abdul Kadur Rowther v. Krishna Malamal Nair 23 Ind. Cas. 533 : 38 M. 695 : 26 M.L.J. 438 : 15 M.
