{"id":32531,"date":"1953-02-17T00:00:00","date_gmt":"1953-02-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kunjammal-vs-krishna-chettiar-by-agent-on-17-february-1953"},"modified":"2014-04-18T15:16:39","modified_gmt":"2014-04-18T09:46:39","slug":"kunjammal-vs-krishna-chettiar-by-agent-on-17-february-1953","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kunjammal-vs-krishna-chettiar-by-agent-on-17-february-1953","title":{"rendered":"Kunjammal vs Krishna Chettiar By Agent, … on 17 February, 1953"},"content":{"rendered":"
Madras High Court<\/div>\n
Kunjammal vs Krishna Chettiar By Agent, … on 17 February, 1953<\/div>\n
Equivalent citations: AIR 1954 Mad 170, (1953) 2 MLJ 185<\/div>\n
Author: V Ayyar<\/div>\n
Bench: Rajamannar, V Ayyar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 Venkatarama Ayyar, J.  <\/p>\n
 1. This is an appeal under Clause 15, Letters Patent against  the  judgment or Panchapakesa  Ayyar J.   in   C. M. A. No.  328   of   1948.   The   judgment-debtor is  the  appellant.   The  respondent filed O. S. No. 33 of  1929 in the District Mun-siff’s   Court,   Erode,   for   partition   of   certain properties   held   in   co-ownership.   There   were a number of defendants in that suit.   On 3-10-1929 a preliminary decree was passed.   Clause 1 of the decree declared the right of the plaintiff to a 5\/6 share in the properties and directed a  division thereof.   Under Clause  2,  the plaintiff was declared entitled to mesne profits from 31-10-1927 till date’ of delivery of possession at the rate of 7 1\/2 pothies of paddy or their value, Rs.  200, per annum.   The third clause provided that   the plaintiff   was entitled   to   recover the mesne profits subject to the condition that he paid the court-fees payable on the  amount of the mesne profits granted under the decree within  one  week  from  that  date  and that  in default of payment of the court-fee the plaintiff should not obtain a copy of the decree and execute    the    same    against    the    defendants. Thus,   the   decree   was   a   preliminary   decree with   reference   to   division   of   the   properties and  a  final  executable  decree  as  regards  the mesne profits.   There   was   an  appeal   against the preliminary decree  and that was disposed of on  12-11-1935.   There  was  a second appeal to this court and that was  disposed of on 6-12-1939.   Defendant   10   who   is   the   appellant before us was not a  party   to   these  appeals. Meantime,   on   15-2-1935,   the final decree   was passed,   and the  plaintiff   obtained   possession through Court     on 20-6-1935.   On  12-2-1945, he filed E. P. No. 292 of 1945 for the recovery of mesne profits under the decree from the  10th defendant.   This   application   was   resisted   on two grounds.   She contended that as the execution application was presented more than 12 years after the date of the decree it was barred by limitation.   She also contended that as the plaintiff had not paid the court-fee within a week as provided in Clause  3 of the decree he was   not entitled   to   execute   the same.   Both these contentions were overruled by the Courts below   and   execution   was   directed   to   issue. There was an  appeal by defendant  10 to this Court C. M. A. No. 328 of 1948 and the judgments of the Courts below   were affirmed   oy Panchapakesa Ayyar J.   Against this judgment the present appeal has been preferred.\n<\/p>\n
 2. Mr. B.V. Viswanatha Ayyar has pressed before us both the contentions as to the bar of limitation and the non-executability of the decree by reason of the failure to pay the court-fees. On the question of limitation he contends that so far as mesne profits were concerned, there was a final executable decree on 3-10-1929 and that therefore the present application filed on 12-2-1945 was barred under S. 48, Civil P. C. The answer of the respondent is that there was an appeal and a second appeal against the decree dated 3-10-1929, the second appeal was finally disposed of on 6-12-1939, the period, of limitation begins to run only from that date, and the present execution application is accordingly in time. Mr. Viswanatha Aiyar replies that defendant 10 was not a party to the appeals and that as against her there was an executable decree on 3-10-1929 and that the present application presented more than 12 years from that date is barred by limitation under Section 48, Civil P. C.\n<\/p>\n
 3. The law is well settled that when a decree is taken in appeal to a higher Court the decree passed in appeal supersedes that of the Court  below   and  becomes  the  decree   in  the suit itself and that thereafter that is the only decree which is capable of execution and that the period   of limitation   for  execution   would run   from   the   date   of   that   decree.    In   –‘Krishtama  Chariar   v.  Mangammal’,   26    Mad 91  (FB)   (A), the question  arose how far  this doctrine would be  applicable in a case  where the appeal was in respect of a portion of the subject   matter   of   the   suit.   The   contention that was urged   was that as regards   the un-appealed portion there  was no impediment  to execution  and therefore   as  to  that  limitation should  be  reckoned from  the date  of the  decree of the first Court, and that  as that portion was not the subject matter of the appeal the period of limitation should  not  be   calculated from the date of the decree of the appellate  Court.   This  contention   was   rejected   by this Court.   Bhashyam Ayyangar  J. stated the principle applicable to the case in these terms:\n<\/p>\n
  “In my opinion, this is sound from a juridical point of view.   When an appeal is preferred from  a  decree of a Court of  first  instance, the suit is continued in the Court of appeal and reheard either in whole or in part,  according  as the  whole  suit is  litigated  again in the Court of appeal or only a part of it. The final decree in the appeal will thus be the final decree in the suit, whether that be one confirming, varying or reversing the decree of the Court of first instance.   The mere fact that a matter   is  litigated   both  in  the Court   of   first   instance   and   again,   though only in part in the Court of appeal, cannot convert or split the suit into two and there can be   only one   final decree   in that   suit, viz., the decree of the Court of appeal. There cannot be two final  decrees  in such  a suit, one by the  Court of  first  instance  and the other by the Court of appeal.”\n<\/p>\n
 The principle laid down in this decision has ever since been uniformly followed and must be taken as firmly established. The argument of Mr. Viswanatha Aiyar is that this decision is not applicable to cases where the decree is sought to be executed against persons who were not parties to the appeal,  and that it should be limited to cases where the parties against whom execution is sought were parties to the appeal. The judgment of Panchapakesa Ayyar J. was based on a decision of a Bench of this Court in — ‘Nacharamnal v. Veerappa Chettiar’, AIR 1946 Mad 231 (B), where it was held that where there was a second appeal and the decree was one of dismissal the period of limitation under Section 48, Civil P. C. should be calculated from the date of the decree in second appeal and not from the date of the decree of the trial Court. Mr, Viswanatha Ai’yar contends that in that case the execution was sought against persons who were parties to the second appeal, and therefore the point now under consideration did not arise for determination. That must be conceded. The question, therefore, to be determined is whether  the decision in — ’26 Mad-91 (FB) (A), becomes inapplicable in cases where the decree is sought to be executed against persons not parties to the appeal. On principle, it is difficult to see why it should be so. If the true juristic position is that the decree in appeal supersedes the decree of the trial Court and becomes the decree in the action, it should make no difference whether the person against whom execution is sought is a party to the appeal or not any more than whether the appeal related to the entire subject matter of the suit or only to a- part thereof. In either case, on the principle that there can be only one decree in a suit it must be held that the only decree which is capable of execution is the decree passed in appeal.\n<\/p>\n
 The decision of the Privy Council in –‘Nagendranath v. Sureshchandra’, AIR 1932 PC 165 (C), would appear to conclude the matter. There, certain co-sharers executed a mortgage in favour of some of the co-sharers. One’ of the mortgagee co-sharers Madaamohan filed a suit to enforce the mortgage against all the co-sharers and also claimed that he had acquired the rights of the other co-mortgagees. The trial Court held that Madanmohan had not acquired the rights of his co-mortgagees and granted the usual mortgage decree. Against that judgment, there was an appeal only by Madanmohan, and the scope of that appeal was his claim, against his comortgagees. The judgment-debtors were not parties to this appeal. The appellate Court confirmed the decree of the trial Court on 24-8-1922. The other co-mortgagees, filed an application for execution on, 3-10-1923 and that was more than three years from the date of the original decree which was on 24-6-1920 but within three years of the appellate decree. The contention of the judgment-debtors was that the execution of the decree was barred by limitation as against them as they were not parties to the appeal preferred by Madanmohan and that therefore as against them limitation ran from the date of the decree of the trial Court. The contention was repelled by the Privy Council and it was held that the limitation for execution of the decree ran from the date of the appellate decree, notwithstanding the fact that the judgment-debtors were not parties to that appeal. After referring to the difference of opinion in the Indian Courts on theNjuestion, their Lordships came to the conclusion that the words of the Statute, “where there has been an appeal” should be construed as including any appeal presented, and that the Article would apply notwithstanding the fact that the appeal did not comprise the whole subject matter of the suit or the judgment-debtors were not parties to it. Their Lordships observe as follows : “There is in their Lordships’ opinion no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to   the parties   to it;   the words mean just what they say.” In  view of this clear pronouncement, it must be  held  that  even  though  the   appellant  was not a party to the appeals, limitation even as against her  ran only   from   the   date   of   the decree in second appeal which was on 6-12-1939: and   that   therefore   the   execution   petition   is within  time.    In  this   view,  it  is  unnecessary to refer to decisions under the Madras Agriculturists’ Relief Act in which this Court has he!d that even with reference to parties who are not parties to the appeal the only subsisting decree liable to be scaled down was the decree passed un  appeal.   Vide  the  judgment  of  Wadsworth J. in — ‘Palani Mudali v. Athiappa Goundan’, AIR 1943 Mad 160 (D) and of Wadsworth and Patanjali Sastri JJ. in — ‘Moidin Bacha Row- i ther   v.   Chidambaram  Filial’,   AIR   1945   Mad 86   (E).\n<\/p>\n
 4. The next contention urged on behalf of the appellant is that as court-fee was not paid within the time limited by the decree it became unexecutable. Clause 3 of the decree provides that the court-fee for mesne profits should be paid within a week from that date. The contention of the appellant is that that not having been paid there is no decree which, could be executed. There is considerable doubt on the record as to whether in fact there was default On the part of the plaintiff in payment of the court-fee within the time limited. The endorsements suggest that the court-fee with reference to the mesne profits down to the date of suit had been paid within, a week and it was only the court-fees payable in respect of mesne profits payable subsequent to the date of suit that had not been paid. If this is the true-position, it is conceded that there is no substance in this point. But even otherwise we think that this contention is clearly unsustainable. Section 11, para 1 runs as follows:\n<\/p>\n
  “In suits for mesne profits or for immoveable property and mesne profits, or for an account, if the profits or amount decreed are or is in excess of the profits claimed or the amount at which the plaintiff valued the relief sought, the decree shall not be executed until the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits or amount so decreed shall have been paid to the proper officer.”\n<\/p>\n
 The present case falls under this paragraph. Under this paragraph the only penalty for non-| payment of court-fees is that the decree could not be executed until they are paid. It will be noticed that this paragraph does not con-template the Court fixing any time within which the court-fee has to be paid. There is no need for it inasmuch as the plaintiff could not execute the decree unless he paid the court-fees. In this case, the decree in providing that the court-fee should be paid within one week, went in our opinion beyond what is permitted under Section 11 para. 1. The appellant contends that rightly or wrongly the condition having been imposed and not having been complied with, it must be treated as though Clause (3) of the decree meant that the claim should stand dismissed, if no court-fee was paid within one week. While there is an express provision in para. 2 of Section 11 that in cases falling thereunder the suit shall be dismissed if the additional fee is not paid within such time as the court fixed, there is no similar provision in cases coming under para.  1.   The clause therefore, requiring the plaintiff to pay court-fee within a week cannot be construed as involving a decision that the suit should stand dismissed if the court-fee was not paid.   There is authority in this court in — ‘Perianan Chetti v. Nagappa Mudaliar’,   30   Mad   32    (F),   that where such a clause is inserted in the decree that does not preclude the decree-holder from paying court-fee later and applying for execution.   There the decree provided as follows: “And this Court doth further order and decree that plaintiff do pay’ court-fee Rs.  4-14-0 on the  subsequent   rent  awarded   to   him   after plaint  within   9-9-1904.”\n<\/p>\n
 The plaintiff did not pay the court-fee  within the   time   mentioned.    When   he   applied    for execution objection was taken that the decree could  not   be  executed   as   court-fee   was   not paid as directed.   The District Munsif granted extension of time   to   pay   the   court-fee   and allowed execution to proceed.   On  appeal, the District Judge held that there was no provision to extend the time and dismissed the application.  The matter came in second appeal before this Court.   In   reversing   the   decree   of   the District  Court,   this   Court  observed: “Apparently,  it  was  assumed  that  the  latter part of Section  11 of the Court-fees Act  applied and   therefore   a   time   was   named   within which the extra court-fee should be paid; but this is clearly a mistake.   If any part of that section applies it is the first part of it, and the intention of that part  of the section is not that a time should be fixed for the payment of the extra court-fee but that execution should be stayed until the extra court-fee payable is  paid.   The latter part of the decree is, in our   opinion,   mere   surplusage, and the Court had power to permit execution of the decree on payment of the extra court-fee as intended by Section 11, Court-fees Act.” “We are accordingly of opinion that the provision in Clause  (3) of the decree that the plaintiff should pay the court-fee within a week did not preclude him from paying it at any time and applying for execution  of the  decree.   He did pay the court-fee before he applied for execution  and therefore  the  requirements  of  Section 11 were  fully satisfied.   This  objection,  therefore, must also be overruled.\n<\/p>\n
 5.   In  the   result,   the   appeal   fails   and  is dismissed with costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Kunjammal vs Krishna Chettiar By Agent, … on 17 February, 1953 Equivalent citations: AIR 1954 Mad 170, (1953) 2 MLJ 185 Author: V Ayyar Bench: Rajamannar, V Ayyar JUDGMENT Venkatarama Ayyar, J. 1. This is an appeal under Clause 15, Letters Patent against the judgment or Panchapakesa Ayyar J. in C. M. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-32531","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nKunjammal vs Krishna Chettiar By Agent, ... on 17 February, 1953 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kunjammal-vs-krishna-chettiar-by-agent-on-17-february-1953\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kunjammal vs Krishna Chettiar By Agent, ... on 17 February, 1953 - 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