VARGHESE Vs. OUSEPH
LAWS(KER)-1974-6-6
HIGH COURT OF KERALA
Decided on June 05,1974

VARGHESE Appellant
VERSUS
OUSEPH Respondents

JUDGEMENT

- (1.) This Second Appeal has been referred to a Bench by Namboodiripad, J. The question raised is one of limitation in regard to the execution of a decree in O. S. No. 125 of 1952, Munsiff's Court, Kanjirappally. The decree was dated 18-1-54; and the first execution petition was filed on 18-1-1957 and dismissed on 31-1-1957. The present execution, petition, in regard to which the question of limitation arises, was filed on 12-8-1969. The Kerala Act 31 of 1958 came into force on 14-7-1958. It did affect execution of decrees against agriculturists like the judgment debtor in this case. The decree could be executed in terms of its apparent tenor only on 15-7-1961, after the 6th consecutive default was made by the judgment debtor in paying up the decree in instalments a benefit conferred on an agriculturist under the provisions of the Act. It has been found by both the courts below that this period of limitation is liable to be excluded in computing limitation for the E. P. There can be no quarrel with this proposition. But even after excluding the said period, it is difficult for us to sustain the conclusion that the present execution petition filed beyond three years of the dismissal of the previous one and beyond twelve years of the decree, is still within time. Counsel for the decree holder respondent sought to sustain this conclusion by contending that after the coming into force of Act 31 of 1958 on 14-7-1958, there was an automatic transmutation of the character of the decree into an instalment decree, the judgment debtor being entitled to pay up the decree in seventeen equal instalments, and the decree holder being entitled to execute the decree only on the sixth consecutive default, (unless he executed for the defaulted instalment), under the provisions of the Act. The result, it was said, was. that limitation will start running at all only from 15-7-1961. From that date, the decree holder would have three years' time to file the execution petition. But before that period, the Limitation Act of 1963, came into force, under which, the time limit was enlarged to twelve years under Art.136. In this view, it was said, that the execution petition was not barred by limitation. We may examine the provisions of the Act to consider the tenability of this argument.
(2.) S.3(1) of the Act prohibits applications for execution of a decree in any court before expiry of six months from the commencement of this Act. S.3(2) provides that if a creditor files a suit for recovery of a debt before expiry of six months from the commencement of this Act, or after the agriculturist has paid or deposited the sums in the instalments specified in S.4, the Court shall deny costs to the plaintiff and direct him to pay the costs of the defendant. S.4(1) provides that notwithstanding any law or contract or decree of court, any debt may be discharged in the manner provided in sub-s.(2) and (3). Sub-s.(2) ordains the discharge of the debt together with interest in seventeen equal half yearly instalments. Sub-s.(3) provides for the dates on which each of the instalments has to be paid. Sub-s.(5) enacts that where the instalment is not paid on the due date, the creditor shall be entitled to recover the same as provided in S.10; and that if default is made of six consecutive instalments, the debtor shall not be entitled to the benefits of sub-s.(2) and (3) and the whole debt less what has been paid shall be forthwith payable. S.10, to which reference is made in S.4(5) of the Act, provides in sub-s.(1) that where any instalment is defaulted, the decree holder shall be entitled to execute in respect of the defaulted instalments.
(3.) We may then refer to the provisions of S.7 and 20. S.7 provides for the amendment of a pre - Act decree on the application of any agriculturist judgment debtor or of the decree holder, so as to apply the provisions of the Act. Sub-s.(2) makes the provisions of sub-s.(1) applicable also to cases of post - Act decrees. S.20 enacts that in computing the period of limitation for application for execution of a decree in respect of a debt, the time during which the making of the application was barred under S.3 shall be excluded.;


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