SAHUL HAMEED ROWTHER Vs. P.R.S.A. ARUNACHALAM PILLAI AND ANR.
LAWS(MAD)-1944-4-2
HIGH COURT OF MADRAS
Decided on April 04,1944

SAHUL HAMEED ROWTHER Appellant
VERSUS
P.R.S.A. Arunachalam Pillai And Anr. Respondents

JUDGEMENT

Leach, C.J. - (1.) THE learned Judges who have referred this appeal to a Full Bench have done so because they are of the opinion that the decision of this Court in Soorayya v. Venkataratnam, A.I.R. 1924 Mad. 210 requires reconsideration. We consider that the opinion is well founded, but as the whole appeal has been placed before us it is necessary for us to travel further a field. The facts are somewhat complicated and in order to appreciate the position we have to bear in mind what has happened in three suits. The first of the suits is O.S. No. 11 of 1931 of the Court of the District Munsif of Tuticorin. It resulted in a money decree being obtained by one Ibrahim against respondent 2 on 2nd April 1932. The second case is O.S. No. 13 of 1932 of the Court of the Subordinate Judge of Tuticorin. Here respondent 1 obtained a preliminary mortgage decree against respondent 2. This was made final on 31st October 1933. On 8th October 1935, respondent 1 assigned the decree to one Mohideen, who on 2nd June 1942 assigned it to the appellant, who is the son of Ibrahim. The third suit is O.S. No. 95 of 1932. It was filed in the Court of the District Munsif of Kumbakonam by one Srinivasa Chettiar against Ibrahim. He obtained a decree on 16th February 1933 and on 27th November 1933 he assigned it to respondent 2, who caused it to be transferred to the Court of the District Munsif of Srivaikuntam for execution. Therefore the position was that Ibrahim and respondent 1 had each obtained a decree against respondent 2, who had become entitled to a decree against Ibrahim.
(2.) ON 2nd February 1934, respondent 2 as the assignee of the decree in O.S. No. 95 of 1932, applied for the attachment of the decree which Ibrahim had obtained against him in O.S. No. 11 of 1931, which was for a larger amount. He obtained an order of attachment and on 20th March 1934 he applied to the District Munsif of Tuticorin to enter up satisfaction in O.S. No. 11 of 1931 to the extent of the amount of the decree held by him in O.S. No. 95 of 1932. On 24th September 1935 the District Munsif of Tuticorin passed an order on respondent 2's application for set -off. He allowed the decretal debt in O.S. No. 95 of 1932 to be set off against the decretal debt in O.S. No. 11 of 1931 on the condition that respondent 2 entered up full satisfaction of the decree in O.S. No. 95 of 1932 within a period of six weeks. On 2nd October 1935, respondent 2 applied to the District Munsif of Sri. vaikuntam in O.S. No. 95 of 1932 for an order entering up satisfaction of that decree. The application was opposed by Ibrahim and Mohideen. Their opposition was successful. By an order dated 18th December 1935 the District Munsif refused to enter up satisfaction. This order resulted in respondent 2 filing A. S. No. 19 of 1986 in the Court of the Subordinate Judge of Tuticorin against the District Munsif's order. Ibrahim had filed A. S. No. 111 of 1935 and Mohideen A. S. No. 121 of 1935 in the same Court against the order passed by the District Munsif of Tuticorin allowing part satisfaction to be entered up in O.S. No, 11 of 1981, conditional on respondent 2 entering up satisfaction in O.S. No. 95 of 1982. A. S. No. 19 of 1936 was allowed and A. S. Nos. 111 and 121 of 1935 were dismissed. The dissatisfied parties carried the matters to this Court, either by way of appeal or civil revision petition. The final result was that the order of the District Munsif of Srivaikuntam of 18th December 1935 was upheld and the order of the District Munsif of Tuticorin of 24th September 1935 was set aside. We must now return to O.S. No. 13 of 1932. On 12th November 1934, respondent 1, as the then holder of the decree in that suit, applied for a personal decree and at the same time asked for an attachment before judgment of the decree in O.S. No. 95 of 1932 which was held by respondent 2. On 19th November 1934 the Subordinate Judge passed an interim order of attachment before judgment. On 10th August 1935 he granted respondent 1 a personal decree and at the same time he made the order of attachment before judgment absolute. The attachment was actually effected on 24th September 1935. Nothing was done by way of enforcing payment of the personal decree until 4th January 1940 when Mohideen, as the holder applied to the Subordinate Judge for an order directing its transmission to the Court of the District Munsif of Srivaikuntam for the purpose of execution. The application was granted on 12th January 1940 and Mohideen was directed to serve notice on the judgment -debtor in accordance with Order 21, Rule 22, Civil P.C. Mohideen left the matter there and on the expiration of six months the District Munsif of Srivaikuntam directed the decree to be returned to the Court of the Subordinate Judge of Tuticorin with a certificate of non -satisfaction. On 3rd July 1942 the appellant, who was then the assignee of the decree in O.S. No. 13 of 1982 applied to the Subordinate Court of Tuticorin for an order recognising the assignment to him and directing the re -transfer of the decree to the Court of the District Munsif of Srivaikuntam for execution. The Subordinate Judge held that the application was barred by the law of limitation and consequently dismissed it without going into the merits. The present appeal is from that decision. The learned Judges who have made this reference have indicated that they are in agreement with the Subordinate Judge.
(3.) FOR the appellant it is said that the decree in O.S. No. 13 of 1932 remained alive by reason of the application which Mohideen had made on 4th January 1940 for its transmission to the Court of the District Munsif of Srivaikuntam. If the decree were then alive, no doubt this application would be sufficient to start another period of limitation; but the question in this case is whether the decree was alive on 4th January 1940. As we have pointed out, it was passed on 10th August 1935, and more than four years had elapsed. The learned advocate for the appellant says that the attachment before judgment had the effect of keeping the decree alive indefinitely, irrespective of any application for execution. In other words he maintains that once there has been an attachment before judgment the decree which is subsequently passed remains effective until the attachment is removed, however many years may pass in the meantime. The learned advocate here relies on certain observations of Coutts -Trotter J. in Meyyappan Chettiar v. Chidambaram Chettiar, A.I.R. 1924 Mad. 494 and the judgment of Pandrang Row J. in Ramanadhan v. : AIR1937Mad84 . He has advanced two further contentions. One is that Article 181 and not Article '182, Limitation Act, applies and the other is that, even if Article 182 applies, the decree was still alive on 3rd July 1942 when the appellant applied for the retransmission of the decree to the Srivaikuntam District Munsif's Court. We are unable to accept the argument that once there has been an order of attachment before judgment, the decree which is subsequently passed remains alive until the order of attachment is cancelled. This contention is contrary to the provisions of the Limitation Act. Article 182 (1) provides that in respect of the execution of a decree or order of a civil Court, not provided for by Article 183 or by Section 48, Civil P.C., the period of limitation is three years and commences from the date of the decree or order. In our judgment this decree falls within Article 182. Section 9, Limitation Act, states that once time has begun to run, no subsequent disability or inability to sue stops it. Order 38, Rule 11, Civil P.C., makes it clear that where there has been an attachment before judgment, it is unnecessary to apply for a further order of attachment; but it makes it equally clear that there can be no order for execution without an application in that behalf, and Article 182, Limitation Act, requires the decree -holder to do this within three years.;


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