1976 (10) TMI 158 - HC - Indian Laws

Execution petition upheld under old Limitation Act; judgment-debtors' appeal dismissed.

Roshan N.M.A. Karim Oomar & Co. and Ors. Versus Kaka Mohamed Ghouse Sahib and Co.

The court held that the execution petition was within the limitation period as per the old Limitation Act, 1908, considering the payments made under the ... - Issues Involved:1. Whether the execution petition was barred by limitation.2. Which Limitation Act (1908 or 1963) applies to the execution petition.3. The effect of payments made under the decree on the computation of the limitation period.4. The impact of the injunction period on the limitation period.5. The application of Section 6 of the General Clauses Act, 1897, in the context of the repeal of the old Limitation Act by the new Limitation Act.Issue-wise Detailed Analysis:1. Whether the execution petition was barred by limitation:The respondents (judgment-debtors) contended that the execution petition was barred by limitation. The learned Master and initially the Judge in Chambers accepted this plea, dismissing the execution petition under Article 183 of the First Schedule to the Indian Limitation Act, 1908. However, upon review, the Judge held that the execution petition was within time.2. Which Limitation Act (1908 or 1963) applies to the execution petition:The primary contention was whether the old Limitation Act, 1908, or the new Limitation Act, 1963, should govern the execution petition. The judgment-debtors argued for the application of the new Act, which would bar the execution petition as it was filed after the new Act came into force. Conversely, the decree-holder argued for the application of the old Act, which would allow the execution petition to be within the limitation period.3. The effect of payments made under the decree on the computation of the limitation period:Article 183 of the old Act prescribes a twelve-year limitation period, which can be extended if payments are made under the decree. The last payment made by the judgment-debtors was on 2-4-1958. The decree-holder argued that this payment extended the limitation period, starting from the date of the last payment.4. The impact of the injunction period on the limitation period:The City Civil Court had issued an injunction preventing the execution of the decree from 28-2-1958 to 4-5-1963, a period of 5 years, 2 months, and 4 days. Under Section 15 of the old Act, this period should be excluded from the computation of the limitation period.5. The application of Section 6 of the General Clauses Act, 1897, in the context of the repeal of the old Limitation Act by the new Limitation Act:Section 6 of the General Clauses Act provides that the repeal of an enactment does not affect any right, privilege, obligation, or liability acquired under the repealed enactment unless a different intention appears. The court examined whether the new Limitation Act manifested an intention to destroy the rights accrued under the old Act.Detailed Analysis:Application of the Old Limitation Act:The court held that the provisions of the old Limitation Act, 1908, should be applied to the execution petition. The judgment-debtors had made payments under the decree before the repeal of the old Act, which conferred a right on the decree-holder to execute the decree within twelve years from the date of the last payment. This right was preserved under Section 6 of the General Clauses Act, as the new Act did not manifest an intention to destroy such accrued rights.Computation of Limitation Period:The twelve-year limitation period under Article 183 of the old Act started from the date of the last payment (2-4-1958). Excluding the period of the injunction (5 years, 2 months, and 4 days), the last date for filing the execution petition was 6-6-1975. The execution petition was filed on 24-2-1972, which was within the limitation period.Judgment:The court concluded that the execution petition was within time and not barred by limitation. The appeal filed by the judgment-debtors was dismissed with costs.Conclusion:The execution petition was held to be within the limitation period as per the old Limitation Act, 1908, considering the payments made under the decree and the period of the injunction. The appeal by the judgment-debtors was dismissed, affirming the decree-holder's right to execute the decree.