S. Krishnappa Vs. Kishenlal and anr.

S. Krishnappa vs Kishenlal and anr.

Type Court Judgment Court Karnataka Decided Dec 17, 1952

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Citation: sooperkanoon.com/373413
Court: Karnataka High Court
Judge: Vasudevamurthy, J.
Decided On: Dec 17, 1952
Case Number: Second Appeal No. 472 of 1951-52
Subject: Limitation

Case Summary

AI-generated summary - not the official court judgment text.

- Section 2A: [Subhash B. Adi, J] Denial of Gratuity for the Break in service period Held, The Act being a social legislation and social security for an employee after retirement, resignation, whenever he becomes eligible and being a beneficial legislation, compliance with requirement under Section 2-A is mandatory...

Key legal issue: Limitation
Acts & sections: Limitation Act, 1908 - Sections 6, 7 and 9 - Schedule - Articles 179, 182 and 182(5); Code of Civil Procedure (CPC), 1908 - Sections 48

Parties & Advocates

Appellant / Petitioner

S. Krishnappa

Advocate D.S. Gundachar, Adv.

Respondent

Kishenlal and anr.

Advocate Y.M.C. Sharma, Adv.

Legal References

Acts: Limitation Act, 1908 - Sections 6, 7 and 9 - Schedule - Articles 179, 182 and 182(5); Code of Civil Procedure (CPC), 1908 - Sections 48
Reported In: AIR1954Kant140; AIR1954Mys140

Excerpt

.....of gratuity for the break in service period held, the act being a social legislation and social security for an employee after retirement, resignation, whenever he becomes eligible and being a beneficial legislation, compliance with requirement under section 2-a is mandatory. sub-section 91) of section 2-a provides for treating the absence as break in service. however, such break in service must be evidenced by an order in accordance with the standing order, rules or regulations governing the employees of the establishment. no doubt sub-section (2) of section 2-a requires that, employee to work not less than 240 days in a year to avail the benefit of gratuity for the said year. however, if the management wants to treat any period of service as break in service so as to deny the gratuity for that period, then it cannot by showing him as absent or on leave, etc., treat the same as break in service, it has to pass an order to the knowledge of the workman and in compliance with the principles of natural justice. further, continuous service means, continuous service rendered by the workman minus break in service for which the management has passed appropriate orders. if there is no express order passed in terms of section 2-a of the act, such deduction is not permissible. section 2-a :[subhash b. adi, j] workman complaining that he was paid less gratuity than what is required to be paid - employer contending that there was break in service and hence workman has not worked for 240 days continuously, hence not entitled to full gratuity as claimed - controlling authority held that employer-corporation has not proved that workman has not worked for 240 days continuously hence ordered that workman entitled to balance of gratuity appealed by employer - appellate authority held that order does not call for interference -writ petition challenging order held, authorities have not passed order under section 2-a of the act. documents does not show that workman has not..........22-10-41. on that date it is to be noted that both the respondents were minors. the first decree-holder appears to have attained majority on 27-3-1946 and made the present application ex. 461/48-49 on 26-3-1949. the judgment-debtor pleaded that the execution application was barred by time, the same not having been filed within three years of the dismissal of the first execution application on 18-9-1940. the second munsiff, bangalore, upheld that contention and held that the execution application was barred. on appeal the first additional subordinate judge, bangalore, reversed that decision and the judgment-debtor has come up in second appeal.2. mr. d.s. gundachar, learned counsel for the appellant, relies strongly on a case in --'lakkegowda v. kempa', 9 mys lj 389 (a) and contends that time for executing the decree must be taken to have begun to run even during the lifetime of lunidaram sait and under section 9 of the limitation act any subsequent disability of his minor sons could not stop such running. that case, however, is easily distinguishable. in, that case the original decree-holder one kalasegowda was alive when the execution application, which he had made on 23-7-1924 was dismissed, and it was sometime after his death that his minor sons made the next execution application. obviously the right to make a second execution application had accrued in favour of kalase-gowda as soon as the first execution application was dismissed and as time had begun to run against him the minority of his sons would not save the running of time. in the present case the fact that sevaram lunidaram sait had died prior to the dismissal of the first execution application renders -- '9 mys lj 389 (a)', inapplicable.3. mr. gundachar has next relied on a case in -- 'bhagwant ramchandra v. kaji mahamad abas', 36 bom 498 (b). that was a case of an attempt to secure extension of time provided under section 48 of the code of civil procedure and not of an execution application......

Full Judgment

1. In this case one Sevaram Lunidaram Sait obtained a decree for money on 21.2-1938. He applied for execution in Ex. 954/ 39-40 on 13-5-1940 and it was dismissed on 18-9-1940. Than an uncle of the present respondents, who were then minors, filed Ex. 325/40-41 and the same was dismissed on 22-10-41. On that date it is to be noted that both the respondents were minors. The first decree-holder appears to have attained majority on 27-3-1946 and made the present application Ex. 461/48-49 on 26-3-1949. The judgment-debtor pleaded that the execution application was barred by time, the same not having been filed within three years of the dismissal of the first execution application on 18-9-1940. The Second Munsiff, Bangalore, upheld that contention and held that the execution application was barred. On appeal the First Additional Subordinate Judge, Bangalore, reversed that decision and the judgment-debtor has come up in second appeal.

2. Mr. D.S. Gundachar, learned Counsel for the appellant, relies strongly on a case in --'Lakkegowda v. Kempa', 9 Mys LJ 389 (A) and contends that time for executing the decree must be taken to have begun to run even during the lifetime of Lunidaram Sait and under Section 9 of the Limitation Act any subsequent disability of his minor sons could not stop such running. That case, however, is easily distinguishable. In, that case the original decree-holder one Kalasegowda was alive when the execution application, which he had made on 23-7-1924 was dismissed, and it was sometime after his death that his minor sons made the next execution application. Obviously the right to make a second execution application had accrued in favour of Kalase-gowda as soon as the first execution application was dismissed and as time had begun to run against him the minority of his sons would not save the running of time. In the present case the fact that Sevaram Lunidaram Sait had died prior to the dismissal of the first execution application renders -- '9 Mys LJ 389 (A)', inapplicable.

3. Mr. Gundachar has next relied on a case in -- 'Bhagwant Ramchandra v. Kaji Mahamad Abas', 36 Bom 498 (B). That was a case of an attempt to secure extension of time provided under Section 48 of the Code of Civil Procedure and not of an execution application. Apparently other and different considerations apply in connection with the period prescribed in Section 48 of the Code, and some of the High Courts-have laid down that the disability provisions in the Limitation Act apply only to the periods of limitation prescribed under that Act and not for those prescribed under the Code of Civil Procedure; and in that decision there is no reference to Art. 182 of the Limitation Act.

4. In 'Bhagat Biharilal v. Ram Nath', 27 All 704 (C) it was held that the person whose minority would, under Section 7 of the Indian Limitation Act, save the operation of limitation, must be a person who was entitled to bring the suit or make an application on the date from which the period of limitation for the, particular suit, or application was to be reckoned. In that case the person who was entitled to make an application on 21-3-1896 when an order absolute for sale was made was one Beijnath, who was not a minor, and consequently the respondent in that case could not avail himself of the benefit of Section 7. In -- 'Kalika Baksh Singh v. Ram Charan', AIR 1918 All 183 (3) (FB) (D) the decree-holders were all of full age when the decree was passed. Limitation had already commenced to run and the subsequent intervention of minority was rightly held, did not entitle the legal representatives to the benefit of Section 7 of the Limitation Act.

5. In Mysore it has been held in -- 'Janamma v. T. Lakshmaiya', 16 Mys CCR 68 (E) that a minor decree-holder is entitled to claim the benefit of Section 7 of the Limitation Act even though ho be one of several joint decree-holders all of whom are not under a disability. In support of that conclusion -- 'Zamir Hasan v. Sundar', 22 All 199 (FB) (f); -- 'Jiwan Ram v. Ram Samp Ram', 27 All 67 (G); -- 'Sri Bam v. Het Ram', 29 All 279 (H); -- 'Lolit Mohun v. Janoky Nath', 20 Cal 714 (I) and -- 'Norendra Nath v. Bhupendra Narain', 23 Cai 374 (J) have been referred to. In 20 Cal 714 (I) it was pointed out that Art. 179 provides several points of time from which the period of three years will begin to run and for purposes of Limitation Act the period which begins from each point is a separate period and if the person entitled is under a disability at the time when any one of such periods commences, the operation of the Act is suspended during the continuance of the disability by the operation of Section 7. This has been approved and followed in 23 Cal 374 (J) at p. 388; 22 All 199 (PB) (P); 29 All 279 (H); and -- 'Duni Chand Panna Lal v. Kuldip Singh', AIR 1935 Lah 144 (1) (K). Even a plain reading of Section 6 with Art. 182 of the Limitation Act would lead to the same conclusion. Under Art. 182, limitation prescribed for the execution of a decree is three years from the dates which are prescribed in the third column. Clause (3) of the third column states that the date of the final orders passed on an application made in a previous execution case would be the starting point for the next which may be filed within three years of that date. Section 6 of the Limitation Act prescribes that where a person entitled to make an execution application is on the date from which the period of limitation has to be reckoned a minor, he may do so within the same time after the disability has ceased. In the present case it was only after the death of Lunidaram Sait that the respondents could have made the next execution application and that they could make within three years of the dismissal of the first application which was on 18-9-40. But on that date they were minors and they could, therefore, properly claim protection under Section 6 of the Limitation Act.

6. I see, therefore, no reason to disturb the judgment of the lower appellate Court. This appeal fails and is dismissed with costs.

7. Appeal dismissed.

Same Parties S. Krishnappa vs Kishenlal and anr. Same Subject Limitation Same Judge Vasudevamurthy, J. Acts & Sections Limitation Act, 1908 - Sections 6, 7 and 9 - Schedule - Artic...

Limitation