GOPALAN Vs. ABDUL KADIR
LAWS(KER)-1955-2-3
HIGH COURT OF KERALA
Decided on February 18,1955

GOPALAN Appellant
VERSUS
ABDUL KADIR Respondents

JUDGEMENT

- (1.) This appeal arises out of proceedings in execution of the decree in OS No. 145 of 1110 on the file of the District Court, Alleppey. The decree is one for sale of the hypotheca and it was passed on 20.3.1111. It provided a period of 2 months for payment of the decree-debt. The decree holder was therefore entitled to take out execution only after 20.5.1111. The decree was a registered one and under the Travancore Limitation Act, VI of 1100 (Art. 166), which governs the case, the period of limitation prescribed for execution of such a decree was 6 years. The decree, therefore remained executable till 20.5.1117. The first execution application in the case was, however, filed only on 20.11.1122 and that application was filed by an attaching decree holder.
(2.) The Travancore National and Quilon Bank Ltd., which had obtained a decree in OS 122 of 1115 against the decree holder in OS 145 of 1110 had attached the latter decree on 25.5.1120 and it was the said Bank, as attaching decree holder, that filed the execution application mentioned above. To escape from the bar of limitation reliance was placed upon the provisions of S. 7, Limitation Act (VI of 1100, Travancore) which provided for suspension of limitation during the disability of the legal representative of a person entitled to bring a suit or to make an application for the execution of a decree. The petition averred that the decree holder in OS 145 of 1110 died on 15.5.1116 and that his legal representatives were all minors even on the date of the petition. Subsequently the decree in OS 122 of 1115 was assigned in favour of the present appellant and he sought to get himself impleaded in place of the Bank to continue the execution proceedings. On notice of that application being given to the judgment debtors in OS 145 of 1110, judgment debtor No. 4 contended inter alia that the execution was barred by limitation. According to the objection petition filed by him the decree holder in OS 145 of 1100 died on 14.5.1117 and not on 15.5.1116 as stated in the execution petition. Thereafter on 4.1.1125, judgment debtor No. 4 moved the court by a fresh petition to have the question of limitation heard on the basis that the decree holder died on 15.5.1116 as mentioned in the execution petition and stating that the question of the correct date of the decree holders death and the other objections raised by him to the execution, need be inquired into only in case the execution was found to be not barred on the attaching decree holders own showing. This course was agreed to by the present appellant and the lower court after hearing the question of limitation as a preliminary point, held that the execution was time-barred. The present appeal is against that decision. The basis of the decision is that the provisions of the Limitation Act enabling persons under disability to have extended periods of limitation to file a suit or make an application in execution, applied only to those persons and not to their assignees.
(3.) The Division Bench before whom the appeal originally came up for hearing found that the questions raised by it are of considerable importance and that it was desirable that those questions are decided by a Full Bench of the Court. The learned Judges of the Division Bench while holding that it was well settled that the benefit of S. 6 of the Limitation Act could not be extended to the assignees of persons under disability, thought that the decision of this court in Lakshmi Amma v. Kunjukunjamma 1951 KLT 557 to the effect that the benefit of S. 8 of the Travancore Limitation Act (corresponding to S.7 of the Indian Limitation Act) was available not only to persons under disability but also to their assignees supported the appellants contention. On the strength of that decision it was contended before them that the benefit of S. 7 of the Travancore Limitation Act should not be confined to persons under disability but that it should be extended to their assignees as well. The question whether the benefit under S.7 of the Travancore Limitation Act was personal to those under disability or can be availed of by their assignees is bereft of authority. The further contention raised before the Division Bench that the attaching decree holder was not in the position of an assignee of the attached decree but was only a representative of the holder of the attached decree, that he executes the attached decree on behalf of the holder thereof and that the period of limitation that applies to him will therefore be the same as that applicable to the holder of the attached decree, was also taken to be not covered by the authority of any decided case. The learned Judges accordingly referred the case for decision by a Full Bench.;


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