MAMMAD Vs. ABDUL SALAM
LAWS(KER)-1963-1-16
HIGH COURT OF KERALA
Decided on January 03,1963

MAMMAD Appellant
VERSUS
ABDUL SALAM Respondents


Referred Judgements :-

GOPAL UDAYAR V. MANGALA UDAYAR [REFERRED TO]
M K KURUVILLA VS. M S JOSEPH [REFERRED TO]



Cited Judgements :-

APPICHA ASARI UNNI ASARI VS. VAIRAVAN ASARI SASTHAVASARI [LAWS(KER)-1974-8-10] [REFERRED TO]
KRISHNA PILLAI VS. PARAMESWARAN PILLAI [LAWS(KER)-1966-6-16] [REFERRED TO]
OUSEPH THOMMAN VS. DEVASIA OUSEPH [LAWS(KER)-1965-12-11] [REFERRED TO]


JUDGEMENT

- (1.)In this civil revision petition by the decree holder, the point, which arises is one of limitation for the execution of the decree. The decree is dated the 22nd September, 1952. The first execution petition was made on the 21st September, 1953, and was dismissed on the 7th November, 1953; the next was made on the 19th September, 1957, and was dismissed on the 2nd December, 1957. The execution petition now under consideration was made on the 17th August, 1961. The Court heard the decree holder before numbering and registering the execution petition and dismissed it as time-barred. For the decree holder, this revision petition was supported on the ground, that under the Kerala Agriculturists Debt Relief Act, 1958 (Act 31 of 1958) which came into force on the 14th July, 1958, the decree became executable for the amount of each instalment from the date thereof, and for the whole amount of the decree from the date of the 6th instalment, no payment or deposit having taken place in the meanwhile, and therefore the present petition is within time. The judgment debtors who have appeared to contest this revision petition, disclaimed that they are agriculturists and contended that the prior execution petitions having been finally disposed of, the decree bad become barred by limitation even before Act 31 of 1958 came into force. These contentions must be regarded as still open to them in the lower Court. They have also contended, that even if the decree was alive on the date of the Act, the dates of the several instalments did not furnish fresh starting points for limitation.
(2.)It is this contention that I propose to examine. It is plain that if a decree directs payment in instalments, the dates of the instalments would be the starting points. There is nothing opposed to principle, if the same conclusion is reached, if a statute were to stipulate payments to be made in instalments. In Sankaralinga Konar v. Venktachala Konar alias Govinda Konar (1960 (II) MLJ 67, this view was taken under the Madras Indebted Agriculturists (Repayment of Debts) Act I of 1955, the court observing that "by reason of the operation of this statute the decree amount is payable only in instalments as provided therein and the decree has become an instalment decree by the force of the statute. An instalment decree does not necessarily mean a decree which ex facie makes the amount due under the decree payable in instalments. If the decree holder can recover money only in instalments as provided by the statute and has to wait for the instalments to become due, it would be unreasonable to hold that all the time he was made to wait for the payment of the instalment, the statute of limitation was running against him." This case arose in execution of a decree. A division bench of the Madras High Court in Bichal Naidu v. S. K. Muthuramalingam 1962 (II) MLJ 352, applied the same reasoning to a suit observing, that "where a special enactment, which is invested with an overriding power with regard to any other law, created this effect of a liability to pay the debt only in instalment, it is a reasonable interpretation to hold that each instalment will furnish a distinct cause of action. At least for the purpose of limitation, and the right to sue, the integrality of the debt must thus be held served into distinct parts." The bench affirmed a similar view held in Gopal Udayar v. Mangala Udayar (1961 (74) LW 601).
(3.)In Act 31 of 1958 aforesaid, S.4 sub-s.(5) has enacted, that where any instalment of any debt is not paid on the due date, the creditor shall be entitled to recover the same as provided in S.10, though if there had been default in the payment of six consecutive instalments, the whole amount due shall become payable forthwith. S.10 sub-s.(1) has provided that where, under a decree passed before the Act, a debtor has failed to make payment for any one of the instalments, the decree holder shall be entitled to execute the decree only for the realisation of the amount of the Instalment which is in arrear, and so on, in respect of other instalments, though in the event of six consecutive defaults, the whole amount is realisable. The necessary implication of this is that the right to execute the decree in the above manner arises as on the dates of the concerned instalments, in other words, time starts running from such dates, for as pointed out, it is unreasonable to hold, that during the period that the decree holder was prevented from realising the decree amount the statute of limitation had been operating against him. S.7 of the Act which enables a decree holder or a judgment debtor to have the decree amended in terms of the Act, does not impinge on this line of reasoning, for even without an amendment of the decree, the judgment debtor would have a right to pay in instalments. This has been so held in Kurivilla v. Joseph 1960 KLT 1207 . The provision which has some relevance, is S.21 which reads as follows:
''Where a debt is payable by an agriculturist either by himself or jointly with a non agriculturist and where the agriculturist makes payment or deposits amount towards that debt as provided for in S.4, 8, 11, 12 or 14, a fresh period of limitation shall be computed from the time when the payment or deposit was made both against the agriculturist and non agriculturist."

There is a similar provision in S.9 of the Madras. Act above referred to, which was not adverted to in the Madras cases cited. Prima facie S.21 is applicable also to a decree passed against an agriculturist alone, as distinguished from a decree passed against an agriculturist and a non agriculturist, and the language suggests that a fresh period of limitation shall be computed only upon payment or deposit by the agriculturist under S.4 and not otherwise. But so to construe the section would involve the. consequence already pointed out, that though the decree holder has a right to execute the decree, in case of non payment, only for the amounts of the several instalments, that right might have become lost by the running of time against him during the very period when he could not have exercised it. The better view seems to be to hold, notwithstanding the inaccurate language employed, that S.21 is intended to provide for a fresh period of limitation against the non agriculturist, upon payment of the debt in terms of the Act by the agriculturist debtor.

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