KUNHIKUTTY Vs. MOIDEENKUTTY
HIGH COURT OF KERALA
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(1.) THIS appeal arises from orders passed in execution on the objections raised by the judgment debtor that the execution of the decree is barred by reason of the provision in S. 48 of the Code of Civil Procedure. THIS contention found favour with the execution court and the execution petition moved by the respondent was dismissed. In appeal however the learned District judge reversed the decision of the execution court holding that there is no bar, and allowed execution to proceed.
(2.) COUNSEL on behalf of the appellant has challenged this decision. He has questioned not only the principle relied on by the District judge, which incidentally we are not going to refer to or rely on, for we think the case can be and ought to be decided on another principle, but challenged the submission made by the respondent that by virtue of S. 4 of the interpretation and General Clauses Act, 1125 the right which it is said had vested in the respondent by virtue of S. 6 (2) of the Kerala Agriculturists' debt Relief Act, 1958 as it stood before its amendment by Act 2 of 1961, is saved. Even this position we are not going to consider in this appeal for we think there is a principle, which we shall state presently, relied on by a division Bench of this Court in Velayudhan and others v. Gokulan and others reported in 1964 KLT. 600, which must answer the issue in this case, in favour of the respondent.
That principle has been stated in the decision in Bell and another v. Gosdan reported in 1950 Vol. I of All England law Reports 266. Halsbury's Laws of England Vol. 24 page 199 has summarised the position thus: "if an enactment renders a payment irrecoverable for a certain period, there may be a consequence, in default of express statutory provision, that the running of time under the appropriate limitation enactment is suspended while the payment is irrecoverable. "
This passage has been relied on by this court in a similar situation in Velayudhan and others v. Gokulan and others reported in 1964 KLT. 600. This principle we think must govern this case. We find that a similar view has been taken by Beaumont Chief Justice in Govindnaik gurunathnaik Kalghatgi v. Basawannewa Parutappa Karajgi reported in 1941 Bombay 203. His Lordship chose to rest the decision on the suspension of the running of time and had relied on the decision of the Calcutta High Court in Lakham shundar Sen v. Madhusudan Sen reported in 35 Calcutta 209. This decision of the calcutta High Court has been approved by the Privy Council in Mrityamoni Dassi v. Lakhan Chandra Sen reported in 43 Calcutta 660.
(3.) THE principle is that when by a statute it has become impossible to take action for the recovery of a debt whether it be by instituting a suit, or by filing an execution application for the realisation of the amount decreed, the period of limitation prescribed by the Law of limitation ceases to run and remains suspended till that disability is removed. This has been clearly stated by Sir Raymond Evershed M. R. in Bell and another v. Gosdan reported in 1950 Vol. I of all England Law Reports 266.
After referring to S. 17 of the Limitation Act which reads thus: "no action shall be brought. . . . to recover arrears of rent. . . . after the expiration of six years from the date on which the arrears became due. " The Master of the Rolls expressed the view that the inhibition introduced by the Regulation of 1940 which was considered in the judgment had the effect of suspending the running of time under S. 17 of the limitation Act, 1939 just read. He expressed his views thus: "the rent was due in 1940, it is argued, and it remained due although during the period of the so-called moratorium it could not be recovered by action as the result of the regulation, and S. 17 states in unequivocal terms that after the expiration of six years no action can be brought. In my judgment, the necessary effect of the regulation, which has, of course, the effect of an act of Parliament, when set beside the Limitation Act, is that, so long as it applied and the rent was irrecoverable by its terms the running of time under S. 17 must be treated as suspended. The matter may be tested in this way. Supposing this evacuation period was some fixed period, as, for example, seven years. The regulation would then provide in effect, 'during the seven years period of the evacuation no action shall be brought to recover rent'. As a necessary implication from that language, when that period was over, the ban on the bringing of an action would cease, and that in turn necessarily involves;that the running of the limitation period under the statute must be regarded as having been suspended for that period. ";
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