Decided on August 20,1970

M. Kanthamma Respondents


S.Maharajan, J. - (1.) THE question that arises for determination in this Civil Miscellaneous Second Appeal is one of limitation. Kanthamma, the respondent herein, obtained a preliminary decree on 28th August, 1955 against one Veeraswami Chetti on foot of an equitable mortgage. A final decree was passed in pursuance thereof on 5th March, 1956. About a year after the final decree, Kamalamma, the appellant, obtained from Veeraswami Chetti, the judgment -debtor, a sale of the hypotheca. This sale deed did not provide for the discharge of the mortgage decree obtained by the respondent. Subsequently, the appellant instituted O.S. No. 578 of 1958 on the file of the City Civil Court, Madras, against the respondent (mortgagee -decree -holder) and Veeraswami Chetti (mortgagor) praying for declaration that the mortgage decree was invalid. This suit was resisted by the respondent. Eventually, the parties entered into compromise in this suit whereby a joint endorsement on the plaint was made by the appellant and the respondent on nth December, 1959. This endorsement provided that if the appellant paid Rs. 400 towards the mortgage decree dated 5th March, 1956 on or before nth December, 1960, the respondent should record full satisfaction of the decree and that in case the appellant failed to pay the amount of Rs. 400 with the prescribed period, the respondent would be entitled to the full amount due under that decree. This endorsement was recorded by the Court nth December, 1959 and the suit O.S. No. 578 of 1958 was consequently dismissed.
(2.) EVEN before the institution of O.S. No. 578 of 1958, the respondent had filed E.P. No. 167 of 1957 seeking execution of her mortgage decree. While the said E.P. was pending, the appellant, who instituted O.S. No. 578 of 1958, obtained an injunction restraining the respondent from bringing the hypotheca to sale pending the disposal of the suit. After receiving the order of interim injunction, the executing Court dismissed E.P. No. 167 of 1957 on 9th July, 1958. It was subsequent to the dismissal of the E.P. that the suit, O.S. No. 578 of 1958 was compromised, as already stated, on nth December, 1959. As the appellant filed to pay the amount of Rs. 400 on or before nth December, 1960, the date mentioned in the compromise, the respondent failed E.P. No. 314 of 1963 on 10th December, 1962, for execution of the mortgage decree by sale of the hypotheca after notice to the appellant. The E.P. was returned on 25th January, 1963 by the office, which raised the objection that no notice could be issued to the appellant unless she was brought on record as party to the E.P. In compliance with this return the respondent represented a E.P. No. 314 of 1963 on 7th February, 1963, impleading the appellant as a party and prayed for sale of the hypotheca after issuing notice to the appellant. The appellant entered appearance and contended that the execution petition was barred by time. The executing Court rejected this contention and held that the joint endorsement made by the appellant in O.S. No. 578 of 1958 on nth December, 1959 was a sufficient acknowledgment of the liability and that E.P. No. 314 of 1963, which has been filed within three years from the date of acknowledgment, was in time. Against this order, the appellant preferred C.M.A. No. 66 of 1964 on the file of the Additional Judge, City Civil Court, Madras, who after upholding the findings of the executing Court, dismissed the appeal with costs. Against this judgment, the present appeal has been filed.
(3.) E .P. No. 167 of 1957 was filed within three years after the date of the final decree and was dismissed on 9th July, 1958, not for any default on the part of the decree -holder, but for the reason that in O.S. No. 578 of 1958 the appellant had obtained an injunction restraining the respondent from executing the decree. The suit, in which the interim injunction was granted was dismissed, as I have already observed, on nth December, 1959. In the absence of evidence to the contrary, the first appellate Court was right in presuming that the injunction must have been in force till nth December, 1959. Under Section 15 of the Indian Limitation Act (IX of 1908): In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuation of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.;

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