KESAVA PILLAI Vs. JATHAVETHARU BHATTATHIRI

JUDGEMENT

(1.) IN view of the importance of the question of limitation raised in this appeal the Division Bench before which the appeal first came up for hearing referred the case for decision by a Full Bench and accordingly it has come up for decision before this Full Bench. The facts relevant for the purpose of this appeal are the following: The trial court's decree was passed on 13-12-1109. The decree is a registered decree and under it the plaintiff has been allowed to recover the plaint items 1 to 4 from defendants 1 and 2 on depositing in court Rs. 681 Ch. 19 Cash 8 for payment to these defendants on account of the value of improvements effected on the properties. The first defendant has also been made liable for a sum of 2117/8 Fs. by way of arrears of pattom and interest. This amount has been directed to carry future interest at 6% per annum. Title to plaint item 5 has been also declared in favour of the plaintiff and the 3rd defendant and the plaintiff have been allowed to recover this property also with mesne profits at the rate of 9871/2 fanams per year from the date of suit to the date of the decree and for a further period of 3 years or till date of recovery of the property at an earlier period. The decree disallowed the other reliefs that the plaintiff had claimed against the 2nd defendant and his tarwad. As between the plaintiff and the first defendant, costs have been allowed in proportion to their success in the suit. IN respect of the matters which were decided against the plaintiff he preferred an appeal to the Travancore High Court. The appeal was admitted and filed as A. S. No. 328 of 1110. Defendants 1 to 6 were respondents 1 to 3 in that appeal. During the pendency of that appeal the first defendant first respondent died on 11-6-1110 (as seen from the records ). His legal heirs were not brought on record within the period of 90 cays allowed by Article 172 of the Travancore Limitation Act corresponding to Article 177 of the INdian Limitation Act. The question of abatement of the appeal was raised at a later stage and the matter finally came up before a Bench of two judges who passed the following order on 4-12-1115 : "this appeal has abated and is dismissed. No order as to costs. " After the records were received back in the first court, the plaintiff-decree-holder filed the present execution petition on 4-12-1121 for executing the decree dated 13-12-1109 after impleading the legal representatives of the first defendant as additional defendants 4 to 14. The additional 7th defendant resisted the execution petition on several grounds, the most important of them being, that the first defendant's legal representatives cannot be impleaded in execution, that the decree has become barred by limitation, that the claim for future mesne profits for a period more than three years is unsustainable, that the amount as claimed in the execution petition is not due to the plaintiff and that none of the reliefs claimed in the petition can be granted. These objections were disposed of by the execution court by a summary order which has adverted only to the plea of limitation raised by the 7th defendant. Even that plea has been overruled by simply stating that "it is seen that there is no bar as the high Court decree was on 4-12-1115 and this application is filed on 4-12-1121 ". It is this summary order that is challenged by the 7th defendant who is the appellant before this Court.

(2.) IF the appellant's contention that the execution of the decree in the case has become barred by limitation is to prevail no further question will arise for consideration. IF on the other hand his plea of limitation fails the other objections raised by him have to be considered before proceeding with the execution of the decree and since the execution court has completely overlooked those objections the case has necessarily to be sent back to that court for a proper consideration and disposal of those objections also.

(3.) IT is obvious that article 182 is worded in general terms so as to apply to all executable decrees or orders. In the present case we are concerned with the execution of the decree that had been passed in the suit on 13-12-1109. If there was no appeal against that decree the period of limitation for the execution of that decree would undoubtedly have run from 13-12-1109 itself as per clause (1) of column 3 of Article 182; but as a matter of fact there was an appeal against that decree and it was admitted and filed as A. S. No. 328 of 1110 and necessarily, therefore, the starting point for computation of the period of limitation for execution of the decree is the one indicated by clause (2) of column 3. As per clause 2 the period of limitation for the execution of the decree begins to run from the date of the final decree or order of the appellate court or the withdrawal of the appeal. The latter part of this clause does not apply to this case because there has not been any withdrawal of the appeal which had been preferred against the decree in this case. IT has only to be seen whether the appeal has been disposed of by a final decree or order of the appellate court and if so what is the date of such final decree or order. The records show that the appeal A. S. No. 328 of 1110 came up for final hearing on 4-12-1115 and that on the same day the Division Bench before which it came up for hearing disposed of the appeal in the following terms: "the appeal has abated and is dismissed. No order as to costs. " There is hardly any room for doubt that this is the final order passed by the appellate court in A. S. No. 328 of 1110 so as to bring it within the letter and spirit of clause