K.P. Chidambara Mudaliar vs V.S. Rukmani Ammal

Maharajan, J.—This is an appeal against the judgment of the District Judge of North Arcot. confirming in appeal, the order of the principal

Subordinate Judge, Vellore. holding that the execution petition filed by the respondent was not barred by time. One Govinda Ammal, who was the

wife of the appellant, Chidambara Mudaliar, obtained a decree for maintenance against her husband in O. S. No. 133 of 1948 on the file of the

Sub-Court. Vellore. Under the decree the husband was liable to pay the wife, for the term of her life, maintenance at the rate of Rs. 150 per

mensem from 9-9-1948. The maintenance decree itself was granted on 13-7-1949. On 4-10-1960 the decree was amended by providing for gale

of the charged properties in case the judgment-debtor defaulted to pay. The decree holder died on 27-9-1961. Rukmani Ammal, who was the

daughter and heir of Govinda Ammal, the decree holder filed E. A. 196 of 1963 On 20-3-1963. for recognising her as legal representative of her

deceased mother on foot of a registered will executed by her. She also filed on 19-6-1963 E. P. 147 of 1963 for execution of the decree in

respect of the amount that had accrued due upto 27-9-1961, the date of death of the decree holder. Both these applications were dismissed on 4-

6-1966. as not Dressed. The petitions were not pressed evidently because the judgment-debtor took the objection that without production of

letters of administration Rukmani Ammal was not competent to execute the decree. Subsequently, she obtained letters of administration and filed

E. P. 47 of 1969. which though numbered in 1969 had been filed on 2-12-1968 itself. It was this execution petition that the judgment-debtor

attacked as barred by limitation. Both the executing Court and the first appellate Court have repelled this contention and directed execution to

proceed. It is against the order of the first appellate Court concurring with that of the executing Court that the present appeal has been filed, in

order to find out if the decree was alive, we have to refer to certain relevant events and consider them in the light of the provisions of the Limitation

Act. 1908. The maintenance decree, as I have already noted, was granted on 13-7-1949, and it would be ordinarily barred, on 13-7-1961, in

respect of arrears due upto 13-7-1949 u/s 48. Civil P. C., but then it was amended on 4-10-1960. Under Clause (4) of Article 182 of the old

Limitation Act. a period of limitation of three years would be available for the decree holder from the date of amendment. The combined effect of

Section 48, Civil P. C. and Article 182(4) of the old Limitation Act, is to extend by three years the period of limitation of twelve years prescribed

by Section 48, Civil P. C. The decree in respect of past maintenance would then get barred on 4-10-1963, that is to say, on the expiry of three

years from the date of its amendment. As for the decree in respect of future maintenance it was a recurrent liability and the decree in respect of

liability for each month after the date of the decree would get barred on the expiry of 12 years after the concerned monthly maintenance became

due.

The decree holder died on 27-9-1961, and her daughter, who is the respondent in this appeal, filed E. P. 147 of 1963 on 19-6-1963, for

realisation of Rs. 21,805, by sale of some of the charged items mentioned in the decree. This execution petition was within time. The judgment-

debtor opposed this execution petition on the ground that without proof of the will, on foot of which the daughter of the decree holder claimed the

decretal amount, she ought not to be allowed to execute the decree. This forced the daughter to file O. P. 49 of 1966 on the file of the District

Court of Vellore for grant of letters of administration on foot of the will executed by her mother, Govindammal. That original petition was opposed

by the judgment-debtor and it was therefore pending for a considerable time. The result was that E. P. 147 of 1963 was being adjourned from

time to time for production of Letters of Administration.

On 4-6-1966, that is to say after E. P. 147 of 1963 had been kept pending for nearly three years, the decree holder''s daughter, evidently to

oblige a statistically-minded Court, made the following endorsement;--

Without prejudice to filing another petition this application is not pressed now and it may be dismissed for statistical purposes as not pressed.

The Court jumped at this endorsement and passed the following order.

Dismissed as not pressed."" The learned Subordinate Judge has rightly held that the endorsement was made by the decree-holder''s daughter, not

because she had committed any default in carrying forward the execution petition, but because, for reasons beyond her control, the letters of

administration she had applied for had not yet been wanted by the District Court. The learned District Judge erred when he held, in appeal, that the

dismissal of E. p. 147 of 1963 was not effected for statistical purposes. Any one, who could read between the lines, would see clearly that E. P.

147 of 1963 was not pressed because the execution petitioner was invited to lighten the file of the Court in which the execution petition had

remained for nearly three years. It would then follow that when the respondent filed E. P. 47 of 1969, on 2-12-1968. that is to say. within three

years after the date on which E. P. No. 147 of 1963 was dismissed for statistical purposes, that execution petition must be regarded as a

continuation or revival of E. P. 147 of 1963.

Learned counsel for the appellant contends that it cannot be so regarded for two reasons: (i) certain items not included in the earlier execution

petition have been included in the later execution petition; (ii) the amount claimed in the latter execution petition is larger than that claimed in the

earlier one.

I do not think that the additional items against which sale is craved for and the additional amount for which execution is sought to be levied, can

detract from the character of the subsequent execution petition, which is in essence a continuation or revival of the earlier execution petition. It may

be that if any claim is made in the subsequent execution petition for the first time after the period of limitation of 12 years had expired, that part of

the claim is liable to be rejected as barred by time. But then, the decree was for monthly maintenance and the amount was accruing due each

month till the original decree holder died; and the decree-holder or her legal representative could be entitled to execute the decree for each monthly

instalment within a period of 12 years there after. If any such claim, which was not barred by time, was included in the subsequent execution

petition, it goes without saving that it can be enforced notwithstanding the fact that in respect of the amount claimed in the previous execution, the

subsequent execution petition would be treated merely as a revival or continuation of the previous one. In other words, the subsequent execution

petition would be regarded as a composite petition containing a prayer to continue or revive the prior execution petition plus a fresh execution

petition in respect of such fresh claim, both as regards money and property, as might not have been barred by limitation. The mere addition of a

claim cannot ipso facto convert what is essentially an application for continuation or revival into an independent execution petition. I would

therefore hold that E. p. 47 of 1969. which was filed on 2-12-1968, must be regarded as only a continuation of E. P. 147 of 1963, which, having

been filed within the period of limitation allowed by law, was clearly in time. Consequently, the appeal of the judgment-debtor fails and will stand

dismissed with costs. Leave refused.