Ratnaswami Padayachi and Others vs Kuppuswami Ayyar and Others

Panchapagesa Sastri, J.—This second appeal arises out of the execution proceedings in E.P.R. No. 90 of 1943, on the file of the District

Munsif''s Court of Chidambaram in O.S. No. 289 of 1930, on the file of the District Munsif''s Court, Pattukottai. The judgment-debtors are the

appellants here. There was a decree against them for Es. 1,200 and odd passed by the District Munsif of Pattukottai on 29th November, 1930.

This decree was assigned over to the present first respondent, Kuppuswami Iyer. He had the decree transferred for execution to the District

Munsif''s Court, Chidambaram and filed E.P.R. No. 90 of 1943 therein on 30th November, 1942. The twelve years period fixed u/s 48, CPC

would expire by 29th November, 1942, but as it happened to be a Sunday on which the Court was closed the execution petition was filed on the

next day. Objection was taken by the judgment-debtor that no order could be passed on the execution petition by reason of the provisions of

Section 48, CPC which provides for an absolute term of twelve years within which the execution petition should be filed. It was contended that

there is no statutory provision which allows any extension of time beyond the period fixed in Section 48 itself and the only exceptions are those

which are recognised in that section itself. The District Munsif upheld the objection and dismissed the execution petition. On appeal the learned

District Judge of South Arcot held that the execution petition was in time and ordered execution. This second appeal is filed by the judgment-

debtors against the said judgment of the District Court.

It is argued by the learned Counsel for the appellants that Section 48 of the CPC does not provide for any extension of time except in the cases

which are provided for in that very section and that the lower appellate Court was wrong in applying Section 4 of the Indian Limitation Act or

Section 10 of the General Clauses Act or in relying on any general principle in favour of the decree-holder. Reliance is placed on the decision in

Subbarayan by Guardian Visalakshmi Achi Vs. Natarajan by their Guardian Gouri Achi and Others, where it was held that Section 15 of the

Indian Limitation Act cannot be availed of by a decree-holder to get over the bar of Section 48 of the CPC which provides for a maximum period

of twelve years only. It was held then that the period of twelve years aforesaid is not a period of limitation in the strict sense. It is further argued

that it is really a condition precedent for a proper execution petition that it should be presented within the period of twelve years provided for in

Section 48 of the CPC and in that view the principle of the decision in Kaku Chenchuramana Reddi Vs. Palapu Arunachalam, applies to the

present case. On the other hand the learned Counsel for the respondents contends that Section 4 of the Limitation Act would govern the present

case and that even assuming that it is not applicable Section 10 of the General Clauses Act would apply. In any event the decree-holder can rely

on the well settled principle of law that where the parties are prevented from doing a thing in a Court on a particular day, not by any act of their

own but by the act of the Court itself they are entitled to do it at the first subsequent opportunity. This principle has been frequently recognised and

acted upon in several decisions out of which it is sufficient to refer to the decision in Peary Mohun Aich v. Anunda Charan Biswas ILR (1891) Cal.

631 Sambasiva Chari Vs. Ramaswami Reddi, and Subramanian Patter Kariakar''s son Sivaram Patter Kariakar Vs. Edathil Madhathil V. Krishna

Aiyar (died) and Another, .

The arguments before mo have covered a wide ground and the learned Counsel on both sides have placed before me all the various aspects of

the matter very elaborately. It is not, however, necessary to deal with the various contentions as in my opinion this second appeal can be disposed

of on the application of the principle recognised in Peary Mohun Aich v. Anunda Charan Biswas ILR (1891) Cal. 631 and followed by our Court

in Sambasiva Chari Vs. Ramaswami Reddi, . In the present case we are concerned only with the question as to the effect of the Court being

closed on the last day of the twelve years period. It is unnecessary, therefore, to deal with, the wider question whether the twelve-year period fixed

is a period of ""limitation"" and if so in what sense? There is a certain amount of conflict between the decisions in Subramania v. Nataraja (1922) 43

M.L.J. 163 : ILR 45 Mad. 785 and Kalyanasundaram v. Vaithilinga ILR 1939 Mad. 611. In Drigpal Singh v. Pancham Singh ILR 1939 All. 647

there is a full and elaborate discussion of the conflicting view points. It is not necessary to pursue that matter further in the present case. The

principle that a party should not suffer for the act of the Court and that if there is no Court sitting on the last day when he should do any particular

act he will be in time if he does it on the next clay when the Court sits is too well established to be challenged now. That has been recognised by

the provisions of the General Clauses Act and also by the express provisions of Section 4 of the Indian Limitation Act. In the circumstances it is

sufficient to rest this judgment on the application of that principle. In that view it follows that the decision of the learned District Judge is right.

The decision of the Full Bench in Kaku Chenchuramana Reddi Vs. Palapu Arunachalam, bears no true analogy to the facts of the present case.

There it was held that the period of three months provided by Section 9 of the Provincial Insolvency Act is not a period of limitation for the

presentation of a petition for adjudication as an insolvent but is a condition precedent for an available act of bankruptcy. On a proper construction

of Sections 7 and 9 of the Act, an act of bankruptcy ceases after the lapse of three months to be a valid ground of adjudication.

This appeal accordingly fails and is dismissed with costs of the contesting respondents. No leave.