CHUMMAR PAVU Vs. GOVERNMENT OF KERALA
HIGH COURT OF KERALA
GOVERNMENT OF KERALA
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(1.) The first judgment debtor in O. S.31 of 1949 on the file of the Sub Court of Ottapalam is the appellant and the appeal is against the order of the learned Subordinate Judge holding that the execution application is not time barred.
(2.) E. P. 257 of 1962 was presented by the decree holder, on 17 9 1962. The decree in the case was passed on 22-3-1950. The judgment debtor contended that being beyond 12 years of the decree, the right of the decree holder to execute the decree was lost under S.48 CPC. As against this contention the decree holder pointed out that in view of the periods excluded under special enactments that came after the date of the decree like Act V of 1954 and Act I of 1955 (both Madras Acts) and the Kerala Act 31 of 1958, execution was not barred. Under these Acts the execution of decrees was directed to be put off for specified periods, and when those periods are excluded the execution will not be barred by the 12 year rule provided by S.48 CPC. Learned counsel for the judgment debtor would argue that the temporary suspense of execution of decrees provided in the special enactments cannot curtail the 12 years provided under S.48; in other words, in computing the period of 12 years under S.48, the time excluded by the intervening special enactments ought not to be given credit to. No decree is executable, according to him, after 12 years of the date of the decree even though the right to execute decree is banned in the meantime by special enactments.
(3.) This question seems to have come up for judicial consideration in the various High Courts and the matter was finally set at rest by a Full Bench decision of the Madras High Court rendered in Kandaswami Pillai v. Kannappa Chetty ( AIR 1952 Mad. 186 ) wherein Rajamannar, C. J., reviewing the position in the light of prior decisions both of the Madras High Court and other High Courts, stated as follows:
"On a careful consideration of the decided cases on the point and the course of legislation I have arrived at the following conclusions:
The expression "prescribed" in S.15 (l)of the Limitation Act does not mean "prescribed by the first schedule" to the Act. It would include a case where a period of limitation is prescribed by any general statute like the Civil Procedure Code. Even if it be understood in the strictest sence, the period 6xed by S.48 of the Code must be deemed to have become a part of the Limitation Act by a process of incorporation in Art.181 and 182. Whether the word "prescribed" in S.15 (1) would apply to periods of limitation provided by other statutes or not, it is clearly indicated by Art.181 that the period fixed by S.48 is in 'pari materia' with the periods of limitation provided in the schedule to the Limitation Act."
It was contended in that case that the Civil Procedure Code should be treated as a special law in so far as it provides a period of limitation in S.48. The learned Chief Justice disagreeing with that view observed:
"I am unable to agree with this view. The expression "special law" which has not been defined in the Limitation Act, was intended to cover only laws like the Rent Act of 1859 which was a complete code in itself. In the ordinary sense -special" is used in antithesis to "general". A special Act as opposed to a general or public Act means one that is directed towards a special subject or special class of objects. The special law contemplated is the law which gives rise to special causes of action and which itself provides for the method of enforcement of rights conferred by that Act or for redress of injuries suffered by the application of the provisions of that Act. The Provincial Insolvency Act, for instance, would be a special law; likewise the Income Tax Act. The Civil Procedure Code is not such a special law. It is a general law relating to procedure.";
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