Andhra HC (Pre-Telangana)
Nalluri Veerraju vs Sri Kanchi Kamakshammavari Temple, ... on 12 November, 1996
Equivalent citations: 1997(1)ALT591, 1997 A I H C 2151, (1997) 1 APLJ 220, (1997) 1 CIVILCOURTC 644, (1997) 3 LJR 248, (1997) 1 ANDHLD 716, (1997) 3 RECCIVR 503, (1997) 1 ANDH LT 591, (1997) 2 CIVLJ 35, (1997) 1 LS 184
ORDER S. Dasaradharama Reddy, J.
1. The respondent-temple obtained decree for recovery of possession on 8-11-1978 in O.S. No. 219/70 against the petitioner (second defendant) and the first defendant, of whom the petitioner was the tenant. The petitioner did not prefer any appeal; while the appeal filed by the first defendant in A.S. No. 179/79 was dismissed by the learned District Judge, West Godavari at Eluru on 7-5-1983. In December, 1994 (exact date is not available from the record) the respondent-temple filed E.P. No. 115/94 against the petitioner, as well as the first defendant. The petitioner filed counter taking the plea that the execution petition is barred by limitation Under Article 136 of the Limitation Act, as twelve years have elapsed from 8-11-1978. Without considering the objections taken by the petitioner, the Court below passed a docket order on 19-4-1996 setting the Judgment-Debtors ex parte and ordering delivery of possession. Against this docket order, the petitioner has come up with the present revision before this Court contending that the execution petition filed by the respondent-temple before the Court below - E.P. No. 115/94 is barred by time.
2. Mr. T.S. Anand, learned Counsel appearing for the petitioner, contended that the Court below ought to have considered the objection raised by the petitioner regarding limitation before ordering the execution petition and requested that the matter may be sent back to the Court below for considering the same on merits. No doubt, Mr. Anand is correct in his submission that the Court below ought to have considered the objection raised by the petitioner. But, in my view, remand is not necessary, as it only protracts the proceedings and being a pure question of law it can be decided here itself. This ground has also been raised in the grounds of revision. As such, I am not inclined to remand the matter.
3. Mr. Anand next contended that for the purpose of Article 136 of the Limitation Act, the date of decree of the first instance i.e. 8-11-1978 has to be taken into account and merely because the other defendant has preferred an unsuccessful appeal, which was dismissed on 7-5-1983, the limitation period cannot be computed from 7-5-1983.
4. Mr. K. Chidambaram, the learned counsel appearing for the respondent-temple, opposed this plea and relied on wo Bench decisions of this Court in Thodakamalla Venkata Laxmi Naraycna Rao v. Kishanlal and Posani, Ramachandraiah v. Daggupati Seshamma, . Under Article 136 of the Limitation Act (for short 'the Act') any decree other than a decree granting a mandatory injunction can be executed within twelve years from the date when the decree becomes enforceable. To the same effect was Section 48 of Code of Civil Procedure asit then stood before it was revealed by the Limitation Act, 1963. Interpreting this Article, a Division Bench of this Court in Posani Ramachandraiah's case held that the interpretation given by the Courts to Section 48 CPC must govern this Article also, since it substantially reproduces Section 48 and replaces Article 182 of the Old Limitation Act and accordingly following the decisions of Madras High Court in Nacharammal v. Veerappa, AIR 1946 Madras 231 and Vyravan v. Rayalu Ayyar, it was held that the period of limitation Under Article 136 has to be reckoned from the coate of appellate decree in which the original decree merges, even though there was no stay in the appeal. Mr. T.S. Anand distinguished this case saying that in the present case no appeal at all has been filed by the petitioner and hence limitation runs from the date of original decree, as far as the petitioner is concerned. But the decision rendered in Thodakamala Venkata Laxmi Narayana Rao's case is the answer to this contention. In that case a money decree was passed in 1944 against the first defendant and the suit was dismissed against the other defendants. The appeal filed by the plaintiff was dismissed on 13-11-1956. The execution petition filed on 22-8-1957 was challenged by the first defendant as barred by limitation. Interpreting the expression 'where there has been an appeal' occurring in Article 182 of the Limitation Act, 1908, a Division Bench of this Court held that 'Article 182 does not admit of any distinction with reference to the result of the appeal or to character of the appeal or to the parties to it and that the execution petition was not barred by time in view of filing of the appeal'. Though this decision arose Under Article 182 of the old Limitation Act and Section 48 of the CPC (Old), as held in Posani Ramachandraiah's case (2 supra) it must be taken that the Legislature was aware of the interpretation of Section 48 of CPC (Old) and Article 182 of the Limitation Act, (Old), when it enacted Article 136 of the Limitation Act, 1963. The facts of the present case are akin to Posani Ramachandraiah's case (2 supra). The only difference is that while in that case, the plaintiff filed the appeal to which one of the defendants, who lost in the suit, was made a formal party, in the present case, the first defendant filed appeal and the second defendant against whom also the decree was passed, did not prefer any appeal. But as in the present case, there also the party against whom the decree was passed by the Court of first instance has not preferred appeal and it was held that the limitation has to be computed from the date of appellate decree. Even though the words 'where there has been an appeal' occurring in Article 182 of the Old Limitation Act do not find place in Article 136 of 1963 Act, yet the principle laid down interpreting that Article an be applied. In view of the above decisions, it has to be held that for the purpose of reckoning period of limitation Under Article 136 the date of passing of appellate decree has to be taken into consideration and accordingly the execution petition preferred by the respondent within twelve years from the date of appellate decree is within time.
5. Another contention was raised by Mr. Chidambaram that as the decree could not have been executed against the first defendant till the appeal was disposed of, the respondent could not have executed the decree against the petitioner who is the tenant of the first defendant. But as rightly contended by Mr. Anand, there was no suspension or stay of execution of decree by the appellate Court and hence this plea is nbt available to the respondent.
6. In view of the above, the Civil Revision Petition is dismissed. No costs.