1. In C. S. No. 173 of 1950 on the file of the Original Side of this court, Kaka Mohamed Ghouse Sahib and Co., Madras, represented by its sole proprietor Kaka Mohamed Ghouse Sahib, obtained a simple money decree against a partnership firm called "Roshan N.M.A. Kareem Oomer and Co.," Madras, represented by three partners, Roshan Abdul Ahad, Jalal Mohamed Ibrahim Sahib and Kaka Hajee Mohamed Isamil Sahib, for Rs. 57,876-11-11 and subsequent interest and cots. The decree was passed on 23-3-1952. It would appear that subsequent to the decree, the judgment-debtors had been paying to the decree-holder various amounts from time to time in part satisfaction of the decree. The last of such payments was made on 2-4-1958. While so, one of the partners of the judgment-debtor firm. Jalal Mohamed Ibrahim Sahib, filed a suit in O. S 367 of 1958 on the file of the City Civil Court, Madras, against the decree-holder and another person for a declaration that the decree in C. S. 173 of 1950 on the file of this court had been obtained by fraud. Pending disposal of this suit, Jalal Mohamed Ibrahim also obtained form the City Civil Court an interim order of injunction restraining the decree-holder, his agents, servants or nominees from executing his decree in C. S. 173 of 1950. The order of injunction was issued on 3-5-1956. However, the suit itself in O. S. 357 of 1958 was ultimately dismissed by the City Civil Court, on 4-5-1963. With the dismissal of the suit, the interim injunction also got dissolved. Thereafter, the decree-holder filed E. P. 34 of 1972 before the learned Master of this Court for an order directing the decree in that suit to be transmitted to the Subordinate Judge's Court. Tirupattur, through the District Court, Vellore, for execution. It must be mentioned that by the time this execution, petition was filed, Jalal Mohamed Ibrahim, who was one of the partners of the judgment-debtor firm had died. Hence, his legal representatives were impleaded as party-respondents to the execution petition. The transmission of this court's decree to the Subordinate Judge's Court, Tirupattur, was prayed for by the decree-holder on the basis that the legal representatives of the deceased partner Jalal Mohamed Ibrahim possessed immovable properties within the jurisdiction of that court.
2. On notice of this execution petition, the
respondents-judgment-debtors, raised several objections. Their principal contention was that the application for execution was barred by limitation. The learned master accepted this plea in bar, and dismissed the execution petition, by his order dated 30-1-1973. Against the order of the Master the decree-holder filed an appeal to the Judge in Chambers in Appln, No. 2227 of 1973. Sethuraman J. who heard the appeal, dismissed it by order dated 29-4-1974, holding that E. P. 34 of 1972, was barred by limitation under Art. 183 of the First Schedule to the Indian Limitation Act, 1908. However, on an application for review moved by the decree-holder in Appln. No 1495 of 1974, the learned Judge subsequently reviewed the said order and held that the execution petition was within time. It may be mentioned that even on review the learned Judge considered the question of limitation as falling under the same Art. 183, but reached a different result in the process of re-computation. Before that learned Judge it appears to have been argued for the judgment-debtors that the appropriate statutory provision to be applied in the case must be found, not in the Indian Limitation Act, 1908, but in the enactment which repealed and re-enacted its provisions in the Limitation Act, 1963. In his order dated 30-1-1975, the learned Judge rejected this contention. It is against this order in review that the judgment-debtors have brought this O. S. Appeal before us.
3. Mrs. Raghavan for the judgment-debtors contended that the learned Judge erred in applying the provisions of the Indian Limitation Act, 1908, for holding that the execution petition was within time. According to learned counsel, the law applicable to this case has to be found in the Limitation Act, 1963, and applying its provisions, it must be held that the execution petition was barred by limitation. Mr. Balasubrahamaniam appearing for the decree-holder contended, on the other hand, that the provisions of the Indian Limitation Act, 1908, should alone be brought to bear by this court for considering the issue as to bar of limitation. He further urged that in so far as this particular case was concerned, the repeal of the Indian Limitation Act, 1908 did not have the effect contended for by the judgment-debtor.
4. Before proceeding to examine the contentions of learned counsel., we may recapitulate certain salient dates relevant for the discussion; 25-3-1952 is the date of the decree of this Court sought to be executed; 2-4-1958 is the date on which the judgment-debtors made their last payment under the decree. Between 28-2-1958 and 4-5-1963, the decree-holder was prevented from executing the decree by an injunction of the City Civil Court, Madras, the period covered by the injunction being 5 years, 2 months and 4 days in all. 24-2-1972 is the date on which the decree-holder filed the execution petition now in question. To this list of dates, we may add one more date, namely, 1-1-1964, which is the day on which the Limitation Act, 1963, was brought into force and the Indian Limitation Act 1908 stood repealed.
5. In the events that happened, the question is whether the execution petition is barred by limitation or is within time. The question bears examination on a consideration of the relevant provisions of the Indian Limitation Act 1908 (which we shall hereafter refer to as the old Act). However, our decision must ultimately depend on the answer to the question, which is the relevant Act to be applied, on the context of the particular fact-situation in the present case?
6. To take first, the provisions of the old Act, Art. 183 prescribes the period of limitation for filing an application to enforce a judgment, decree or order of any court established by Royal Charter in the exercise of its ordinary original civil jurisdiction. The period of limitation prescribed under this Article is twelve years. The 12-year period has to be worked out from the time when the right to enforce the judgment, decree of order accrued to some person capable of releasing the right. The right to enforce the judgment or decree, it is needless to point out, has to be spelt from the terms of the decree. Ordinarily, it would council with the date of the decree; sometimes a decree may itself set down a different date as that on which the decree-holder might be entitled to enforce payment; in which case, the twelve year period will have to be reckoned from that other date. All this, however, would be subject to an important proviso in Art. 183. The proviso says that when some part of the principal money secured under the decree or some interest on such money had been paid, the period of twelve years prescribed in the Article shall not be computed as under the enacting part of the Article, but shall be reckoned from the date of the payment, or if there had been more payment than one, then the date of the last of such payments. The decree-holder in this case had invoked the proviso to Art. 183. He also relies on S. 15 of the old Act which provided that in computing the period of limitation for an application for the execution of a decree, the execution of which had been stayed by injunction or order of a court, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. It I on the basis of this proviso to Art. 183, that the decree-holder in the present case had claimed that he twelve year period should be computed from 2-4-1958, on which date the judgment-debtors made their last payment under the decree. On this computation, the twelve year period would expire on 2-4-1970. This, by itself, did not get the decree-holder far enough to save limitation. But he claimed that, in calculating the twelve year period, the time during which the City Civil Court had stayed the execution of the decree by injunction should be excluded. The injunction, as already noticed, extended for 5 years, 2 months and 4 days. Excluding this period, while computing the twelve year period from 2-4-1958, the last date for filing the execution petition would be 6-6-197. Actually, however, the decree-holder filed the execution petition even on 24-2-1975. On this basis, Mr. Balasubramaniam contends that the execution petition was well within time.
7. Mr. Raghavan does not dispute that if the appropriate law to be applied to this case were the old Act, the present execution petition would be within time. His contention, however, is that the old Act cannot occupy the field of discussion in the present case. Referring to S. 32 of the new Act, he pointed out that the old Act stood repealed with effect from the date when the new Act had come into date when the new Act had come into force, which, under the relevant notification issued by the Central Government under S. 1(3) of the new Act, happened to be 1-1-1964. He pointed out that the execution petition in this case having been filed on 24-2-1972, subsequent to the coming into force of the new Act, is governed only by the provisions of the new Act. He referred to Art. 136 of the Schedule to the new Act which prescribes a uniform period of limitation for execution of any decree or order of any civil court, doing away with the distinction which prevailed earlier under the old Act between decrees of chartered High Courts, on the one hand (Art 183), decrees of other courts, on the other (Art. 182), in regard to the period of limitation for execution. The period of limitation prescribed under Art. 136 of the schedule to the new Act for execution of nay decree (other than a decree granting a mandatory injunction) or order of any civil court, is twelve years from the date when the decree or order becomes enforceable. There is no provision in Art. 136 of the schedule to the new Act, similar to the one in Art 183 of the First Schedule to the old Act, under which the twelve year period for executing the decrees of High Courts should be computed from the date of payment under the decree, where there had been such payment. Even in the new Act, S. 19 contained a provision that where payment on account of a debt or of interest on legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in the is behalf, a fresh period of limitation should be computed from the time when the payment was made. But this provision is to be read subject to Explanation (b) to the section which lays down that the debt to which the section applies would not include money payable under a decree or order of a Court. Thus, in computing the period of limitation provided for under Art. 136 to the schedule of the new Act for executing a decree of a High Court, the date of payment on account of the debt under the decree cannot be taken as a fresh starting point of limitation. On this basis Mr. Raghavan urged that the execution petition in the present case, filed as it was on 24-2-1972, was clearly barred by limitation, because the twelve year period, when calculated from the date of the decree, that is to say, on 25-3-1952, would ordinarily have expired on 25-3-1964. Learned counsel granted that the decree-holder in this case was entitled to invoke S. 15 in the new Act under which in computing the period of limitation for an application for execution of a decree, the execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. But he demonstrated that even applying S. 15 of the new Act to the facts of the case, that would only take the decree-holder to 25-8-1969, for with the exclusion of the period of 5 years, 2 months and 4 days, the twelve year limitation under Art 136 of the new Act as calculated from 25-3-1952, the date of the decree, would expire on 29-5-1969, whereas, actually the execution petition was filed much later on 24-2-1972.
8. Mr. Balasubramaniam, learned counsel for the decree-holder, does not dispute that if the relevant law of limitation to be applied to the present case were to be applied to the present case were to be found from the provisions of the new Act, the present execution petition would be clearly barred. But we do not get anywhere in this discussion by saying that the execution of the decree in this case would be barred under the new Act, but not under the old Act. It still remains for use to consider which is the law of limitation to be applied whether it is the new Act, as urged by Mr. Raghavan, or the old Act, as urged by the decree-holder and as held by Sethuraman J. in the order under appeal. On this more difficult aspect of the question, Mr. Raghavan reiterated that on the date when the execution petition was filed in this case, the old Act could hardly have applied considering that it had already been repealed with effect form 1-1-1964 by S. 32 of the new Act. He pointed out that the new Act was not only a repealing Act simpliciter; if reenacted the entire law relating to limitation of actions. On this basis, the learned counsel urged that rules of limitation, being prima facie rules of procedure, have to be construed as having retrospective operation, on the principle that no person has a vested right in procedure. It followed according to the learned counsel, that the new Act alone would apply to the execution petition in this case, and nonetheless so for facts the the decree to be executed had been passed at a time anterior to the commencement of the new Act. Mr. Raghavan urged that the decree-holder could not claim any right, under the law, to execute his decree according to the provisions of the old Act.
9. Mr. Balasubramaniam relied on a decision of the Supreme Court reported in New India Insurance Co. Ltd. v. Shanti Misra, . We may, however, observe that this decision is
concerned more with a change in the law relating to forum than with a change in the law relating to limitation. The decision is, therefore, not directly in point and we desist from examining it further.
10. We feel that for a decision on the question whether the decree-holder in this case is entitled to invoke the provisions of Art. 183 of Schedule I of the old Act, the true scope and effect of S. 32 of the new Act must be examined. Since this section in the new Act purported to repeal the old Act, the resulting position, in law, would fall to be determined on a consideration of S. 6 of the General Clauses Act 1897. This section provides that where any Center Act repeals any enactment, then, unless a different intention appears, the repeal shall not......... (b) affect the previous operation of any enactment so repealed; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment. The section further provides that any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the repealing Act had not been passed.
11. The Supreme Court had had occasion to consider how and from what perspective, S. 6 of the General Clauses Act should be applied. In State of Punjab v. Mohan Singh, , the Supreme Court
observed thus--
"The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy them. We cannot, therefore, subscribe to the broad proposition that S. 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by freest legislation. S. 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving cause is by itself not material."
The Limitation Act, 1963 is an amending and consolidating Act on the subject of the law relating to limitation of suits and other proceedings. It is plain that with the coming into force of this Act on 1-1-1964, the old Limitation Act, 1908 stands repealed. Under the terms of S. 32, the repeal would operate without any savings. Nevertheless it would be essential to see whether there is anything in this Act which in any was evidences an intention to destroy the rights which had already accrued to the suitors under the repealed Act. Part V of the new Act is entitled 'Miscellaneous', and contains provisions on sundry subjects. S. 30 is one of them. It deals with suits, applications etc., for which the period than the period prescribed under the old Act. S. 30(a) provides that where the period of limitation under the new Act for a suit is shorter than the period provided by the old Act, then such a suit may be instituted within a period of seven years next after the commencement of the new Act of within the period prescribed for such suit by the old Act, whichever period expires earlier. Likewise, under S. 30(b) of the new Act, any appeal or application for which the period of limitation prescribed in the new Act is shorter than the period of limitation prescribed in the old Act, may be preferred within a period of ninety days next after the commencement of the new Act of within the period prescribed for such appeal or application by old Act, whenever period expires earlier. Par V of the new Act also carried S. 31 which enacts that nothing in the new Act would enable any suit, appeal or application to be instituted, for which the period of limitation prescribed by the old Act had expired before the commencement of the new Act of affect any suit, appeal or application pending at the commencement of the new Act. Shortly put, whole repealing the old Act and re-enacting new provisions, Parliament had made special provisions in the new Act as regards pending proceedings as well as proceedings for which the period of limitation prescribed under the new Act is shorter than that provided in the old Act. While so, it would, however, be seen that the new Act carries no provision in regard to matters where, although the period of limitation is the same both in the old Act and in the new Act, different results would necessarily flow by reason of the circumstance that the starting point is not the same under both. The present case itself is a good illustration of the omission of the Legislature to make provisions in this regard under the new Act. As we have already observed, the new Act makes no distinction between decrees of chartered High Courts and decrees of other courts in prescribing the period of limitation under Art. 136 of its Schedule for execution, whereas under the old Act, there was a clear-cut distinction between the two classes of decrees under Arts. 182 and 183 in the first Schedule to the old Act. Besides, we had seen that even in the matter of enforcing a judgment, decree of order of a chartered High Court, although a period of 12 years was prescribed as the period of limitation under Art. 183 of the First Schedule to the old Act, that period would not begin to run on the same starting point in all cases. Normally, as we saw, the period would fail to be reckoned from the date when the decree became enforceable or the right to enforce accrued. But we also saw that in cases where payments had been made under the decree by the judgment-debtors, then the proviso to Art. 183 would be brought into operation, according to which the twelve year period should be computed, not form the date of the decree, but from the date of the last payment under the decree. This shows that the period of limitation prescribed under the old Act for executing a decree of a chartered High Court in any given case would depend on the fact whether there had been any payment s by the judgment-debtor under the decree, and if there were, what was the day of the last of such payments. Thus, the starting point of limitation in such cases would be determined, not on the date of judgment, but would depend on the overt act of the parties to the decree in effecting payment and obtaining receipt of the money.
12. There is no dispute in the present case that payments had been made under the decree by the judgment-debtors. The last of such payments was admittedly made prior to the repealing of the old Act. In these events, we think it would be a correct application of the proviso to Art. 183 to hold that it was by virtue of this payment by the judgment-debtors, and by virtue of nothing else, that the decree-holder was enabled, and entitled, under the law then existing, to treat the date of such last payment and the starting point of limitation for the purpose of executing the decree of this court. Applying the language of S. 6 of the General Clauses Act, the acts of payment by the judgment-debtors under the decree in this case might be viewed either as acts which conferred on the decree-holder a right to execute the decree within 12 years of the last of such payments or as self-imposed liabilities of the judgment-debtors themselves, under which they may be said to have rendered themselves liable to be proceeded against in execution of the decree for a period of 12 years from the date of such payment. It might also be possible to view the payments made by the judgment-debtors as something 'done' under the decree, having relevance not only for the purposes of the proviso to Art. 183 of Sch. I to the old Act, but also for purposes of S. 6 of the General Clauses Act. In Sivagami Achi v. Ramanathan Chettiar, ILR (1967) 2 Mad 91, a Division Bench of this court expressed the view that the reference in S. 6 of the General Clauses Act to 'rights acquired or accrued' is not to rights in the abstract, but rights that had already pertinently accrued to the suitor under the repealed enactment. We respectfully agree. But, as observed by the Privy Council in connection with a case that arose under the comparable provisions of S. 6(3) of the Ceylon Interpretation Ordinance, "the distinction between what is and what is not a 'right' must often be one of great fineness." See Free Lanka Insurance Co. Ltd. v Ranasinghe, 1964-1 All ER 457 at 462 (PC). But, again, as observed by the Privy Council, if the subject had, in truth a right, something more than a mere hope or expectation, the requirements of the section would be fully answered. For, what S. 6 of the General Clauses Act requires is that at the moment the repealing Act is passed the subject must possess the right which, but for the passing of that Act, he would have been at liberty to exercise. In this case, we have not the slightest doubt that when the judgment-debtors in this case made payments to the decree-holder towards the and then had accrued to the decree-holder in regard to the period of time within which the decree in his favour was capable of being executed. In the first place, the decree-holder thereby became entitled to execute the decree within 12 years from the date of the last of such payments, which he would not have been entitled to do in the absence of such payment. Secondly, and by the same taken, the rights that had accrued to the decree-holder by virtue of the payment by the judgment-debtor entitled him to institute, continue and enforce the execution of this court's decree against the judgment-debtor under the provisions of the old Act, notwithstanding its repeal by the new Act, and, indeed, as if the repealing Act had not been passed. It would follow from these considerations that the execution petition filed by the decree-holder has necessarily to be judged only in the context of the relevant provisions of the old Act. So judged, as we have already seen, there can be no doubt whatever that it was well within the period of limitation when it was filed.
13. We derive support from a decision of a Division Bench of the Calcutta High Court, reported in Subodh v. Kanai Lal, which was brought to our notice in the course of argument. That case related to the execution of a decree passed on the Original Side of the Calcutta High Court on 21-4-1945. Subsequent to the decree on 11-4-1951, there was an adjustment of the decree under the terms recorded by the court. The judgment-debtor was given the facility of payment of the decree in instalments with the usual default clause which entitled the decree-holder to execute the decree for the whole amount in default of payment of any two consecutive instalments. The judgment-debtor having defaulted to pay the two instalments, the decree-holder was entitled to execute the decree for the entire amount. However, the decree-holder did not take steps to execute the decree until long after the date when he became entitled to execute the decree in whole. On 10-4-1962 the judgment-debtor wrote to the decree-holder, enclosing a cheque for Rs. 500 towards costs and payment of the decree amount and acknowledging his liability to pay the balance together with interest in monthly instalments. On 19-6-1964, the decree-holder filed an application for execution for realising the balance due. The execution petition was resisted by the judgment-debtor on the score that it was barred by limitation under the provisions of the new Limitation Act 1963. This objection was overruled by the learned single Judge who dealt with the execution petition in the first instance and also by the Division Bench on appeal under the letter Patent. In the course of its judgment the Division Bench referred to the fact that in his letter dated 10-4-1962, the judgment-debtor had acknowledged the decree debt and also made part payments thereof the decree-bolder. They pointed out that the letter of acknowledgment and the payment would have served to give the decree-holder a fresh starting point of limitation under the old Act, under Ss. 19 and 20. It was, however, argued before the learned Judge that the corresponding provisions of the new Act of 1963 relating to the effect of acknowledgment in writing and payment of the debt to give a fresh starting point of limitation were, in terms, inapplicable to execution applications. It was pointed out that since the execution petition in that case had been filed on 19-6-1964, after the coming into force of the new Act, the new Act alone should be held go govern that law of limitation applicable to that execution petition. Dealing with this contention, the learned Judge observed as follows:--
"But for a fresh start of limitation, by reason of acknowledgment and part-payments made in 1962, the adjusted decree of 1951 would have become time-barred for execution, in the year 1963 and could not be executed by reason of the provisions of S. 31 of the new Limitation Act. The new Limitation Act does not effect confiscation of the right of execution in such circumstances."
The learned Judges were not unalive to the differences in the provisions between the old Limitation Act and the new Limitation Act. Indeed, they observed that under the new Act, the decree-holder was not entitled to utilise the acknowledgment of decretal liability and payment towards the decretal debt for start of a fresh period of limitation. All the same, they held that the decree-holder before them had an 'escape route' which lay in establishing that the new Act is not so far retrospective as to be confiscatory in nature, even in respect of 'existing rights'.
14. This decision of the Calcutta High Court is in line with the view we have taken in the present case as to the scope and applicability of the provisions of Art. 183 of the old Limitation Act 1908, notwithstanding its repeal on 1-1-1964. In the case before the Calcutta High Court, what rendered the old Act applicable was the acknowledgment in writing; in the case before us what renders the old Act applicable is the payment made by the judgment-debtors towards the decree before the repeal of the old Act.
15. Reference was made in the course of argument to S. 31(a) of the new Act which enacts that nothing in the new Act shall enable nay suit, appeal or application to be instituted, preferred of made, for which the period of limitation prescribed by the old Act expired before the commencement of the new Act. This provision, however, would not apply to this case. Although a period of twelve years was prescribed under Art. 183 of the First Schedule to the old Act, the question of its expiry has to be decided by (i) determining the point of time from which the twelve year period of limitation commences and (ii) by excluding from the twelve year period the time during which the order of injunction against execution was in force. Computing the period of limitation on the above basis, it could hardly be maintained 'that the time limit had expired before the commencement of the new Act. We have already gone into the details of the computation, and there is, indeed, no dispute, that the last day for filing the execution petition in this case would not have arrived till 6-6-1975.
16. Sethuraman J. while dealing with this question, observed thus in his order on review dated 30-1-1975:--
"There is no provision in the new Act saying that the fresh start which the period of limitation had as a result of payment was affected by the new Act. There must be some clear language to affect any such vested right."
We entirely agree with the observations of the learned Judge.
17. In the result, we hold that E.P. No. 34 of 1972 filed by the respondent decree-holder in this case is within time and not barred by limitation. This O. S. Appeal filed by the judgment-debtors is accordingly, dismissed with costs.
18. Appeal dismissed.