JUDGMENT
Chandra Reddi, J.
1. The decree-holder in O. S. No. 15 of 1926 on the file of the Sub-Court, Chittoor is the appellant in all these appeals. In order to appreciate the points arising in these appeals it is necessary to state briefly the facts leading up to these appeals.
2. The appellant filed a suit in the court of the Subordinate Judge, Chittoor, against his uncle the 1st defendant for partition and separate possession of his share in the family properties and for other incidental reliefs. The 2nd defendant who was the daughter of the 1st defendant was impleaded as she had a claim for maintenance against the family properties. This suit ended in a compromise decree on 8-10-1928 and under the terms of the compromise the plaintiff was to be paid a sum of Rs. 6000 in lieu of his claim, Rs. 4000 being payable on the 29th of Ani 1934 and the balance to be paid in two instalments subsequently. It was provided in the compromise decree that for the due performance of the decree a charge should be created over the suit properties including the three items of property in dispute which lie within the jurisdiction of the Sub-Court, Nilgiris.
3. In order to proceed against the properties in question several petitions were filed for transmission of the decree to the Sub-Court, Nilgiris and for execution against these three items but all of them proved infructuous. Ultimately the execution petition No. 195 of 1946 giving rise to these appeals was filed on 22-6-1946. No orders were passed till the 13th of July 1946. Meanwhile the appellant presented an execution petition in the court of the Subordinate Judge, Nilgiris on the 12th of July 1946. As already stated the order transmitting the decree to the Sub Court, Nilgiris for execution of the decree was made only on the 13th.
On the same day there was an order by the learned Subordinate Judge, Nilgiris directing the return of the execution petition for the production of a copy of the decree. But we have no evidence as to the exact time at which either the order for transmission of the decree was made by the Subordinate Judge, Chittoor or the latter order by the Sub Court, Nilgiris or as to when the papers were taken back by the appellant in pursuance of the order for return. The importance of the exact time of these acts will become apparent when we deal with the question of the validity of the presentation of the execution petition in the Sub Court, Nilgiris.
4. The execution petition was represented on the 19th of July 1946 with an endorsement that the decree will be filed later on. In the course of these execution proceedings the properties in question were being brought to sale. It may be necessary to state here that the 2nd defendant sold these properties in the years 1939-40 for debts binding upon the estate of the 1st defendant who died prior thereto. The persons who acquired interest in these properties by virtue of the sales came forward with claim petitions.
5. In support of their claims two contentions were urged. One was that the present execution petition was barred under Section 48 of the Civil Procedure Code firstly for the reason that the execution petition now presented was beyond 12 years of the date of the decree, that as no time was fixed for the payment of these amounts in the original decree itself limitation began to run from 8-10-1928, the date of the decree and the date 13th July 1934 fixed for the payment of Rs. 4000 was inserted only by way of amendment asked for in I. A. No. 33 of 1942 long after the decree got barred and the judgment-debtors ceased to have any interest in the properties and would not therefore affect them. Secondly even assuming that the decree was not barred there was no valid presentation of the execution petition within 12 years as it was filed in the court of the Subordinate Judge, Nilgiris prior to the passing of the order for transmission and receipt of the decree by the Court to which the decree was transferred for execution. The alternative ground was that the claimants being purchasers for value without notice of the charge created on these properties, the charge could not be enforced.
6. The trial court while holding that the execution petition was in time and not barred under Section 48 of the Civil Procedure Code found that the claimants were bona fide purchasers for value without notice of the charge and that consequently they were entitled to the benefits of proviso to Section 100 of the Transfer of Property Act which provides
“Save as otherwise expressly provided by any law for the time being in force no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.”
In the result he allowed the claim petitions and dismissed the execution petition.
7. In these appeals filed by the decree-holder his counsel Mr. Natesan accepting the finding that the respondents are the bona fide purchasers for value without notice of the charge argued that Section 100 of the Transfer of Property Act does not afford any protection to the respondents and that the appellant is not precluded from enforcing the charge created by the consent decree. On the other hand, the decree of the Lower Court is sought to be sustained on behalf of the respondents not only on the basis of the proviso to Section 100 of the Transfer of Property Act but also on the ground of limitation.
8. We shall first consider whether the proviso to Section 100 of the Transfer of Property Act is a bar to the enforceability of the charge created over these properties. In other words, is the view of the learned Subordinate Judge that the charge created by the compromise decree is not available against the bona fide purchasers for value without notice of the charge is correct. Section 100 of the Transfer of Property
Act as it stood after the Amending Act of 1929 runs thus:
“Where immovable property of one person is by act of parties or operation of law made security for the payment of money to another and the transaction does not amount to a-mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained (which apply to simple mortgage shall, so far as may be, apply to such charge). Nothing in this section applies to the charge of a trustee on the trust property for expenses properly incurred in the execution of his trust (and save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.”
It is manifest that the bona fide purchaser for value without notice of the charge acquires the right by virtue of this proviso only in cases where there is no other provision of law governing such a charge. We have, therefore, to see whether there is any other provision of law in the Transfer of Property Act which governs such purchase of property. There can be no doubt that there is such a provision and that is Section 52 of the Transfer of Property Act which embodies the doctrine of lis pendens. Section 52 lays down :
“During the pendency in any court having authority within the limits of India excluding the States of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit, or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the court and on such terms as it may impose.”
Reading Section 100 in conjunction with Section 52 of the Transfer of Property Act it will be seen that a purchaser of properties subject to a charge created by a compromise decree the satisfaction or discharge of which has not been obtained or has not become barred by limitation does not get any assistance from the proviso to Section 100 of the Act even though he is a purchaser for value without notice of the charge. So long as the decree is not satisfied and is kept alive the purchase is hit by the rule of lis pendens irrespective of whether the purchase is a bona fide transaction or not. We are fortified in this view by some of the decided eases of our court. In — ‘Rajagopala v. Kesava’, ILR (1945) Mad. 726 a Bench of this Court decided that Section 100 of the Transfer of Property Act does not override the provisions of Section 52 of the Act and that the Legislature by the Amendment of Section 100 could not have intended to qualify the doctrine of lis pendens, see also — ‘Kulandaivelu v. Sowbagyammal’, 1945-1 Mad LJ 261 and also –‘Raiagopala Chetti v. Abdul Shukoor Sahib’, 1950-1 Mad LJ 83 and — ‘Maina v. Bachchi’, 28 All 655.
9. That the incidents of a compromise decree are the same as those of other decrees is seen from — ‘Hemlata Devi v. Bhowani Charan Roy’ 39 Cat WN 725 and — ‘Kuloda Prosad v. Jageshar Koer’, 27 Cal 194. These cases along with — ‘Aramudhu Iyengar v. Zamindarini Srimathi Abhiramavalli Ayah’, 66 Mad LJ 566 Aramudhu Iyengar v. Zamindarini Srimathi Abhiramavalli Ayah’, 66 Mad LJ 566 lay down that question of notice would, not
arise in a case of charge created by a decree of a court. Admittedly in this case the properties were purchased by the claimants while the decree remained unsatisfied which means during the pendency of litigation. It is incontrovertible that continues so long as the decree is alive
10. We cannot, therefore, agree with the lower court that the appellant cannot avail himself of the charge over the properties in the hands of the respondents. It follows that the appellant is entitled to proceed against the properties in the hands of the respondents and that proviso to Section 100 of the Transfer of Property Act is not a bar hereto if the decree is other wise alive.
11. There remains the point urged by the learned counsel for the respondents, namely, that the decree is barred by limitation under Section 48 Civil Procedure Code. As in the lower court the contention on behalf of the respondents on this aspect of the case is two-fold. According to them the decree which was passed in 1928 got barred in 1946 when they filed the present execution petition. It is argued that the decree, as it stood originally, did not direct any payment of money on a certain date or at recurring periods and therefore, the limitation for the execution of the decree starts from the date of the decree, that the clause relating to the payment of Rs. 4000 on 13-7-1934 was inserted only by an amendment in 1942 and that this amendment could not in any way prejudice the rights of the respondents as the amendment itself was made after the decree got barred and after the judgment-debtors ceased to have any interest in the properties in question.
In support of this contention several decisions of this Court as well as of other courts were placed before us. It is unnecessary for us to refer to any of these rulings in view of the fact that the basic facts on which such a contention could be founded do not exist in this case. The learned counsel for the appellants submitted that the time for payment of Rs. 4,000 was provided for even in the original decree and not by way of any amendment in 1942. To satisfy ourselves whether the original decree directed payment of money on a specified date we sent for the original records. A reference to them has disclosed that the time for payment of Rs. 4000 was specifically stated to be 29th of Ani 1934 in the original decree itself. All that was sought by way of amendment was to give the corresponding English date to 29th Ani and nothing more. In the circumstances we feel that this contention is devoid of any substance and ought to be rejected.
12. Next we have to consider whether the presentation of the execution petition on the 12th of July was a valid one and within time. What is urged by the learned counsel for the respondents is that since on the 12th July when the execution petition was filed in the court of the Subordinate Judge, Nilgiris, there was no order of transmission of the decree to that court and no copy of the decree was received by that court, it had no jurisdiction to entertain the execution petition and hence there was no valid filing of the execution petition.
13. The basis of this contention is the ruling of Jackson J. in — ‘Nanjunda Chettiar v. Nallakaruppan Chettiar’, 55 Mad LJ 120 which lays down that until a court has received the decree it has no jurisdiction to entertain an application for execution, and the application
for execution filed in such a court would not help the decree-holder to save the decree from the bar of limitation and that a mere order directing transmission of the decree would not vest the court to which the decree is to be transferred for execution with jurisdiction to receive execution application unless the decree is actually received by that court. This ruling was followed by one of us in — ‘Rachapudi Rangarao v. Subbarao’, 1948-2 Mad LJ 461,
14. In — ‘Modali Ademma v. Venkatasubbayya’, 56 Mad 692 it was held that the decision in — ‘Nanjunda Chettiar v. Nalla Karuppan Chettiar’, 55 Mad LJ 120 was wrong and the contrary view taken in — ‘Arimuthu Chetti v. Vyapuri Pandaram’, 35 Mad 588 by Krishnaswami Aiyar J. is the correct one. In this case the following passage from — ‘Arimughu Chetti v. Vyapuri Pandaram’, is quoted with approval:
“I am not at all sure, having regard to the provisions of Rules 6, 7 and 8 of Order XXI that the court to which a decree is sent for execution is authorised to execute it before a copy of the decree is received; but I think there is force in the contention that, when once an order is made sending a decree to another court for execution, that by itself is sufficient to entitle the decree-holder to apply to the court to which the decree is sent for execution.”
The same view was taken by another Bench of this Court in — ‘Venkataratnam v. Chennayya’, 50 Mad LW 764 and by Yahya Ali J. in –‘Perumal Chettiar v. Avula Kotayya’, 1945-2 Mad LJ 555. In — Thiagaraja Thevar v. Sambasiva Thevar’, 57 Mad 795 a Bench of this court took the view that when an execution petition is filed in a court which had not the jurisdiction to receive it at that time it is not bound to dismiss the petition when it has jurisdiction to decide when the matter comes up for decision simply because it had no jurisdiction at the time of the presentation of the petition.
15. These rulings which overrule the decision in — ‘Nanjunda Chettiar v. Nalla Karuppan Chettiar’, 55 Mad LJ 120 were not brought to the notice of the court when deciding –‘Rachapudi Rangarao v. Subbarao’, 1948-2 Mad LJ 461.
16. What emerges from these decisions is that the court to which the decree was being transferred for execution could entertain the execution petition even before the order of transmission is made and the copy of the decree is received and if the execution petition remains in court till after the passing of the order for transfer by the court that passed the decree the presentation is a valid one and also that the executing court would be vested with jurisdiction to execute the decree the moment the order for transmission is made and not only when the decree is actually received by that court.
17. So there will be no difficulty in this case if it is found that the execution petition which was filed on the 12th of July was in court by the time the order of transmission was made by the Subordinate Judge, Chittoor on the 13th. But a complication is introduced into this by the fact that on the 13th an order was passed by the Sub Court, Nilgiris directing the return of the execution petition for production of a copy of the decree and it was represented only on the 19th of July 1946. As already observed we have no evidence as to when this order returning the execution petition was passed or as to when the papers were taken back on behalf of the appellants. In these circumstances, it is argued by the counsel for the respondents that as there is no evidence on record that the execution petition was on the file of the executing court when the transfer was directed to be made by the Sub Court of Chittoor and as by the time the execution petition was represented on the 19th the decree was already barred, the presentation of the petition on the 12th does not enure to the benefit of the decree-holder.
18. The learned Subordinate Judge sought to gel over the difficulty of the want of evidence in the case as regards the exact time when the order for return was made on the 13th by relying on the practice followed by him in passing such orders during the lunch interval at 2 p.m. He deduces that the same practice might have been followed by his predecessor, and assumes that the execution petition was on the file of that court when the order for transfer was made by the Sub Court, Chittoor on the 13th. But we do riot think that any inference as to the time of the passing of the order for return by his predecessors could be drawn from the fact that the learned trial Judge was in the habit of passing such orders at about 2 p.m. However that does not present an insuperable difficulty. In the absence of any evidence we have to presume that all judicial acts date from the earliest moment of the day.
19. Maxwell in his “the Interpretation of Statutes” at page 351 (9th Edn) says thus :
“It used to be laid down as a general rule that courts refused to take notice of “all fractions and divisions of a day, for the uncertainty, which is always the mother of confusion and contention” and in civil cases a judicial act, such as a judgment is taken conclusively to have been done at the first moment of the day.”
In — ‘Edwards v. Reginam’, (1854) 9 Ex. 628 it
was observed at page 631 :
“The doctrine that judicial acts are to be taken always to date from the earliest minute of the day in which they are done, stands upon ancient and clear authority.”
20. To the same effect is the decision in –‘Wright v. Mills’, (1859) 28 LJ Ex 223.
21. Applying this principle to the order of transmission it must be presumed that it was passed at the earliest moment of the day. The
same presumption governs the order for return also. It follows that both the orders must be presumed to have been made at the first moment of the day.
22. This would give rise to a further question as to whether the taking back of the return was at the same time as the passing of the order for return i.e., whether the execution petition was on the file of the Sub Court, Nilgiris, when the latter order was passed. Here again we can turn to the passage at page 352 of Maxwell on “The Interpretation of Statutes” 9th Edn. which states thus :
“But as regards the acts of parties, including in this expression acts, which, though in form judicial, are in reality the acts of parties, the courts do notice such fractions whenever it is necessary to decide which of two events first happened.”
The learned author has relied upon a number of decisions in support of this statement of
law. If as stated by the learned author there is no presumption in the case of acts of private parties as in the case of judicial acts then it
must be taken that the return was taken only after the relevant orders of the court were passed in this case. It is common knowledge that the papers directed to be returned will not be taken back simultaneously with the passing of the order. Some time would intervene between the passing of the order and the taking back of the papers. Hence it must be inferred that the execution petition was on the file of the Sub Court, Nilgiris when the order directing transfer of the decree was passed in the Sub Court at Chittoor and therefore the presentation of the execution petition on the previous day was proper and valid. So the last execution petition out of which these appeals arise was filed by the appellant in time and the decree was not barred and it could be executed by him by proceedings against the properties in the hands of the respondents.
23. In these circumstances we must hold that the respondents cannot have any claim on the properties which were subject to a charge and purchased by them as against the holder of the decree, that is, the appellant and that the order of the lower court that the appellant is not entitled to enforce the charge cannot be sustained. In the result we allow the appeals but in the circumstances without costs.
