CoramThe Honourable Mr v. S.Manickam

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 19-01-2007CoramThe Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYANSecond Appeal No.191 OF 1997andC.M.P.No.2215 of 1997S.Jayavel..Appellant/Defendantvs.S.Manickam..Respondent/PlaintiffThis Second appeal under Section 100 of C.P.C was filed against thedecree and judgment dated 22.2.1996 passed in A.S.No.12 of 1993 on thefile of the Subordinate Judge, Dharmapuri District, reversing the order ofthe District Munsif, Dharmapuri, in O.S.No.52 of 1985 on 26.08.1991.For Appellant : Mr.A.Arul MozhiFor Respondent : Mr.D.SivakumarJUDGMENTThis second appeal has been preferred against the decree and judgmentin A.S.No.12/1993 on the file of the Court of Subordinate Judge,Dharmapuri. The defendant in O.S.No.52/1985 on the file of the Court ofDistrict Munsif, Dharmapuri, is the appellant herein. Theplaintiff/respondent herein filed O.S.No.52/1985 before the DistrictMunsif for specific performance of contract entered into between theplaintiff and the defendant on 1.2.1978. The suit was dismissed by thelearned District Munsif. On appeal before the first appellate Court inA.S.No.12/1993 preferred by the plaintiff, the learned Subordinate Judgehas set aside the decree and judgment of the trial Court and allowed thefirst appeal thereby decreeing the suit as prayed for. Aggrieved by thefindings of the learned Subordinate Judge in A.S.No.12/1993, this secondappeal has been preferred.2. The short facts relevant for the purpose of deciding thisappeal as narrated in the plaint are as follows:-The defendant had agreed to sell the plaint schedule propertyfor Rs.7,500/- to the plaintiff after receiving Rs.1,000/- towardsadvance. The sale agreement is dated 1.2.1978. As per the sale agreement https://hcservices.ecourts.gov.in/hcservices/ the possession was delivered to the plaintiff. Inspite of repeatedrequest the defendant has not executed the sale deed. Hence, theplaintiff issued suit notice for specific performance of the contract.The suit property was attached as per the decree in O.S.No.1162/1979 filedby one Ramakrishna Chetty in E.P.358/1980. The defendant has promised todischarge the debt and then executed a sale deed. To cancel theattachment proceedings the plaintiff filed E.A.No.650/1980 in the abovesaid E.P.No.358/1980. The said application was dismissed on 10.01.1984.CMA.No.7/1984 was preferred against the order passed in E.A.No.650/1980,which was also dismissed on 10.1.1984. In E.P.No.358/1980, the plaintiffin order to protect his property has paid Rs.4,540/- before the Court andon that basis it was recorded as the entire debt has been discharged andon the endorsement made by Ramakrishna Chetty, CMP.No.7/1984 was allowed.The plaintiff is liable to pay Rs.1,960 towards balance of saleconsideration. Since there was an attachment in respect of the suitproperty in force from 14.7.1980 to 12.09.1984 the suit is not barred bylimitation. Hence, the suit. 3. The defendant in his written statement has contended that hisagreement of sale dated 1.2.1978 is true. The plaintiff is the brother ofthe defendant. Only at the request of the plaintiff, the plaintiff wasallowed to reside in the suit house and he undertook to vacate the suitproperty soon after the marriage of his daughter. But as promised, theplaintiff has not vacated the property. As per the mutation took placebetween the plaintiff and defendant, the defendant had agreed to sell thehouse to the plaintiff. But he has not received any amount in advance.But the advance amount was deposited before the mediators. The defendanthas agreed to sell the property if the plaintiff pays the entire saleconsideration. Since the plaintiff has failed to pay the entire saleconsideration he is not entitled to any relief in the suit. The timestipulated under the agreement of sale also expired. The suit is barredby limitation. Hence, the suit is liable to be dismissed. 4. On the above pleadings the trial court has framed six issues. Theplaintiff has examined himself as P.W.1 and Ex.P.1 to P.38 were marked onthe side of the plaintiff. The defendant has examined himself as D.W.1and Ex.D.1 to D.11 were marked on the side of the defendant.5. After going through the oral and documentary evidence, the learnedDistrict Munsif has come to the conclusion that the plaintiff is notentitled to any relief under the suit and consequently dismissed the suitwith costs. Aggrieved by the findings of the learned Trial Court, theplaintiff has preferred an appeal before the Court of Subordinate Judge,Dharmapuri, in A.S.No.12/1993, who has allowed the appeal setting asidethe decree and judgment of the trial Court. Hence, the present secondappeal before this Court by the defendant.6. The substantial question of law involved in this second appeal iswhether Section 15 of the Limitation Act is applicable to the suit filed https://hcservices.ecourts.gov.in/hcservices/ under Section 47 of the Specific Performance Act when there is noinjunction or stay against the agreement holder to initiate a suit forproperty involved in a previous suit?7. The Point:- I have heard the submissions of Ms.V.Arul Mozhilearned counsel for the appellant as well as Mr.D.Sivakumar learnedcounsel for the respondent and considered their respective submissions.8. Admittedly the appellant and the respondent are brothers. Theplaintiff has filed the suit O.S.No.52/1985 on the file of the DistrictMunsif, Dharmapuri, for specific performance of contract in respect of theplaint schedule property on the basis of the Ex.A.1-agreement of saledated 1.2.1978. The recitals in Ex.A.1-agreement of sale four months timehas been stipulated to perform the contract. Ex.A.1 is dated 1.2.1978.As per the terms of the contract under Ex.A.1, the defendant has toexecute a sale deed in respect of the suit property, a house in favour ofthe plaintiff within four months from the date of Ex.A.1. Admittedly thesuit was filed in the year 1985. The suit ought to have been filed threeyears from 1.6.1978, as per the article 54 of the Limitation Act 1963.The plaintiff in the plaint would allege that there was an attachment inrespect of the plaint schedule property in E.P.358/1980 inO.S.No.1162/1979 in favour of one Ramakrishna Chetty, the decree holderagainst the defendant. According to the plaintiff, the attachment inrespect of the suit property was in force from 14.7.1980 to 12.09.1984 andthat as per Section 15 of the Limitation Act 1963, the period ofattachment i.e., from 14.7.1980 to 12.9.1984 is excluded then the suit isnot barred by time. The above argument of the plaintiff was not acceptedby the trial Court, consequently the suit was dismissed. But on appealthe first appellate Court has reversed the findings of the learnedDistrict Munsif holding that the period of attachment in respect of thesuit property from 14.7.1980 to 12.09.1984 is liable to be excluded forthe purpose of computing the period of limitation, and ultimately decreedthe suit as prayed for. 9. Hence, the only substantial question of law involved in thissecond appeal is whether the period of attachment from 14.7.1980 till12.9.1084 in respect of the plaint schedule property as per the order inE.P.358/80 in O.S.No.1162/1979 on the file of the Court of DistrictMunsif, Dharmapuri, is liable to be excluded for the purpose oflimitation. Section 15 of the Limitation Act 1963 runs as follows:-(1) In computing the period of limitation for any suit orapplication for the execution of a decree, the institution orexecution of which has been stayed by injunction or order, thetime of the continuance of the injunction or order, the day onwhich it was issued or made, and the day on which it waswithdrawn, shall be excluded. https://hcservices.ecourts.gov.in/hcservices/ (2) In computing the period of limitation for any suit ofwhich notice has been given, or for which the previous consentor sanction of the Government or any other authority isrequired, in accordance with the requirements of any law for thetime being in force, the period of such notice or, as the casemay be, the time required for obtaining such consent or sanctionshall be excluded.Explanation:- In excluding the time required for obtainingthe consent or sanction of the Government or any otherauthority, the date on which the application was made forobtaining the consent or sanction and the date of receipt of theorder of the Government or other authority shall both becounted.(3) In computing the period of limitation for any suit orapplication for execution of a decree by any receiver or interimreceiver appointed in proceedings for the adjudication of aperson as an insolvent or by any liquidator or provisionalliquidator appointed in proceedings for the winding up of acompany, the period beginning with the date of institution ofsuch proceeding and ending with the expiry of three months fromthe date of appointment of such receiver or liquidator, as thecase may be, shall be excluded.(4) In computing the period of limitation for a suit forpossession by a purchaser at a sale in execution of a decree,the time during which a proceeding to set aside the sale hasbeen prosecuted shall be excluded.(5) In computing the period of limitation for any suit thetime during which the defendant has been absent from India andfrom the territories outside India under the administration ofthe Central Government, shall be excluded."So as per Section 15(1) of the Limitation Act, if there is a stay by wayof an order of injunction for execution proceedings or an order, the timeof the continuance of the injunction or order, the period between the dayof which it was issued or made, and the day of which it was withdrawnshall be excluded. 10. The learned counsel appearing for the respondent relying on 2006(5) SCC 340 (Panchanan Dhara and others Vs. Monmatha Nath Maity(dead)through LRs and another), contended that the above said period ofattachment from 14.07.1980 till 12.09.1994 is liable to be excluded forcomputing the period of limitation. The facts of the above case is that: https://hcservices.ecourts.gov.in/hcservices/ " the second respondent-company was registered andincorporated under the Companies Act, 1956. The said Companypossessed the suit property situated in the district ofMidnapure in the State of West Bengal. It intended to sell thesaid property. Respondents 1 and 2 having come to know of thesaid intention on the part of the Company entered into anagreement for sale thereof, wherefor a sum of Rs.6,000/- waspaid to the Company by way of advance. The balance amount wasto be paid within a period of fourteen months. As the title ofRespondent 2 in respect of the said property was not clear, theCompany instituted a suit against some persons who wereclaiming title thereover on or about 22.5.1971. The said suitwas marked as Title Suit No.110 of 1971. In the said suit acompromise petition was filed on 3.4.1979 which having beenaccepted by the Court concerned, a consent decree was passed onthe basis thereof on 3.5.1979. Respondent 1 thereafter issuedseveral letters dated 12.11.1979, 11.1.1980, 5.1.1981 and8.10.1984 asking the Company to execute and register a saledeed in his favour. The Company in response thereto had allalong been assuring Respondent 1 that it would do so. By aletter dated 16.3.1985, one of the Directors of respondent 2Company assured Respondent1 that no apprehension should beentertained by Respondent 1 that the contract between him andthe Company would not be honoured. However, on 21.8.1985, theCompany refused to execute and register a deed of sale infavour of Respondent1 on the plea that the same became barredby limitation.Hence, a suit for specific performance of the saidagreement for sale dated 18.4.1971 was filed in the Court ofMunsif, Ghatal, District Midnapore, West Bengal which wasmarked as Title Suit No.133 of 1985. It is not in dispute thatnot only had the appellant filed a caveat in the said suit, itpurchased the suit property on 13.11.1985 i.e., during pendencythereof. Even in the deed of sale executed in favour of theappellant by the Company the factum of the said suit beingpending in the Court had specifically been mentioned.The trial Court negatived the contention of the plaintiffand the plea of limitation was also negatived and the suit wasdismissed. The appeal was also dismissed by the firstappellate Court. In the second appeal before the High Courtsince there was no substantial question of law involved as perSection 100(4) of CPC, the second appeal was also dismissed.Hence, the appeal before the Honourable Apex Court, wherein ithas been held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "In R.K.Parvatharaj Gupta Vs. K.C.Jayadeva Reddy whereinone of us was a member, it was observed: (SCC p.431, paras10-11)10.In terms of the said article, a suit for specificperformance of a contract is required to be filed withinthree years; in the event no date is fixed for theperformance, within a period of three years from the datewhen the plaintiff had notice that performance is refused.The notice dated 24.4.1984, thus, is required to beconstrued into the context of the agreement dated13.10.1982 entered into by and between the parties. 11. There cannot be any doubt whatsoever that inrespect of a contract for sale of immovable property, timeis not of the essence of the contract, but the question asregards the conduct of the appellant must be considered inthe backdrop of the events noticed hereinbefore."The said decision has again been noticed inGunwantbhai Mulchand Shah Vs. Anton Eli Farel wherein ithas been held: (SCC p.639, para 8)8. We may straightaway say that the manner in whichthe question of limitation has been dealt with by thecourts below is highly unsatisfactory. It was rightlynoticed that the suit was governed by Article 54 of theLimitation Act, 1963. Then, the enquiry should have been,first, whether any time was fixed for performance of theagreemnt for sale, and it if was so fixed, to hold that asuit filed beyond three years of the date was barred bylimitation unless any case of extension was pleaded andestablished. But in a case where no time for performancewas fixed, the court had to find the date on which theplaintiff had notice that the performance was refused andon finding that date, to see whether the suit was filedwithin three years thereof. We have explained theposition in the recent decision in R.K.Parvatharaj GuptaVs. K.C.Jayadeva Reddy. In the case on hand, there is nodispute that no date for performance is fixed in theagreement and if so, the suit could be held to be barredby limitation only on a finding that the plaintiffs hadnotice that the defendants were refusing performance ofthe agreement. In a case of that nature normally, thequestion of limitation could be decided only after takingevidence and recording a finding as to the date on whichthe plaintiff had such notice. We are not unmindful ofthe fact that a statement appears to have been field on https://hcservices.ecourts.gov.in/hcservices/ behalf of the plaintiffs that they do not want to lead anyevidence. The defendants, of course, took the stand thatthey also did not want to lead any evidence. As we seeit, the trial Court should have insisted on the partiesleading evidence on this question or the court ought tohave postponed the consideration of the issue oflimitation along with the other issues arising in thesuit, after a trial.In view of the aforementioned pronouncements of thisCourt, we are of the opinion that the plea raised by thelearned counsel for the appellant that the suit was barredby limitation cannot be accepted as all the court havearrived at a finding of fact that the period for executionof the deed of sale had been extended.So it was held by the Honourable Apex Court that itcannot be said that the suit was barred by limitation.But the facts of the above said case will not be applicable to the presentfacts of the case for the following reasons:-i) the trial Court even before a full fledged trial hasstraightaway dealt with the question of limitation, which was consideredunsatisfactory by the Apex Court.ii) The trial Court in that case has failed to note the date onwhich the plaintiff has noticed that the performance was refused. In thecase on hand there was no time fixed in the agreement of sale for theperformance of the contract. Basing reliance on 2006(2) SCC 428 = 2006(2) Scale 156 (R.K.Parvatharaj Gupta Vs. K.c.Jayadeva Reddy), theHonourable Apex Court has observed that in a case of this nature thequestion of limitation shall be decided only after taking evidenceregarding the fact that the plaintiff had such notice. In the case onhand four months time has been stipulated from the date of execution ofEx.A.1 ie. 1.2.1978. 11. On the other hand the learned counsel appearing for the appellantrelying on an early decision of this Court in AIR 1919 Madras 317(Rangasami Chetti Vs. Thangavelu Chetti), contended that an attachmentwill not cover under the expression "an injunction or order" in Section15 of the Limitation Act. The exact observation of the court in the saiddecision runs as follows:- "The question is whether the suit is in time. The firstcontention raised by the learned vakil for the appellantbefore us was that Section 15 of Limitation Act, saved the barbecause the attachment was pending between November 1913 andFebruary 1915. This contention must be overruled. There is https://hcservices.ecourts.gov.in/hcservices/ the direct decision of the Allahabad High Court in Shib SinghVs Sita Ram [1894 (17) Madras 316] to the effect that anattachment is not covered by the expression 'an injunction ororder' in Section 15 of Limitation Act. The judicialCommittee in Beti Maharani Vs. Collector of Etawa [1895 (17)All. 198] held that in the case of an attachment beforejudgment Section 15 will not save the bar. In that decisionthey expressly approve the principle enunciated in shib SinghVs. Sita Ram. In Shunmugam Vs. Moidin [1885(8) Madras 229] itseems to have been suggested that the prohibitory order issuedduring the attachment would come within the meaning of Section15. That dictum cannot be regarded as good law in the face ofBeti Maharani Vs. Collector of Etawah. "12. The learned counsel for the appellant also relied on the decisionreported in AIR 1959 SC 198 (Siraj-ul-Haq Khan and others Vs. The SunniCentral Board of Waqf UP and others), where in also the Honourable ApexCourt has reiterated the above proposition of law as follows:-"Section 15 provides for "the exclusion of time duringwhich proceedings are suspended" and it lays down that 'incomputing the period of limitation prescribed for any suit orapplication for the execution of a decree, the institution orexecution of which has been stayed by injunction or order, thetime of the continuance of the injunction or order, the day onwhich it was issued or made and the day on which it waswithdrawn, shall be excluded". It is plain that, for excludingthe time under this section, it must be shown that theinstitution of the suit in question had been stayed by aninjunction or order; in other words, the section requires anorder of an injunction which stays the institution of the suit.And so in cases falling under Section 15, the party institutingthe suit would by such institution be in contempt of Court." 13.The other two ratios viz., 1978(II) MLJ 412 (R.Krishnamurthy andothers Vs. Narayana Pillai and another, and Narayana Pillai Vs.R.Krishnamurthy and others) and AIR 1957 Travancore-Cochin 40 (KuruvillaKuruvilla Vs. Ouseph Joseph) relied on by the learned counsel for theappellant have been produced before the trial Court and the same havebeen dismissed by the trial Court. In 1978(II) MLJ 412(R.Krishnamurthy and others Vs. Narayana Pillai and another, and NarayanaPillai Vs. R.Krishnamurthy and others) it has been held as follows:-"The only question is whether section 15 of theLimitation Act, 1963, applied and whether the suit is withintime. Section 15(1) runs as follows:-(which was alreadyextracted about) https://hcservices.ecourts.gov.in/hcservices/ In order that this provision could apply, the institutionof any suit or execution application should have been stayedby injunction or order. If it had been so stayed the time ofthe continuance of the injunction or order will be excluded.In the present case the proceedings which are relied on tobring the case within the scope of section 15 of theLimitation Act, is O.S.No.24 of 1952. It was filed on 21stMarch, 1952. It may be remembered that on 13th March, 1952,E.A.No.514 of 1951, in E.P.No.520 of 1951 was disposed of bythe learned District Munsif of Palani. In the applicationthere was a prayer for delivery of the property mentioned inthe order of the Rent Controller, Dindigul after the removal ofthe obstruction offered by the second defendant and hismother. That application was allowed and delivery was orderedon 9th April, 1952. The second defendant in the present suitand his mother, who were the respondents to the saidapplication were, however, referred to a civil suit toestablish their title. It was in pursuance thereof they filedO.S.No.24 of 1952. They filed also I.A.No.118 of 1952 andthere was an interim stay of E.P.No.520 of 1951 on the samedate viz., 21st March, 1952. This interim stay was madeabsolute on 2nd August, 1952. On 3rd March, 1953, O.S.No.24 of1952 was disposed of. The claim put forward by the appellantsis that the period between 13th March, 1952 and 3rd March, 1953should be excluded under the provisions of section 15 of theLimitation Act. The prayer in the suit as well as in theapplication for stay was only in respect of the executionproceedings arising out of the order of the Rent Controller,Dindigul in M.B.A.No.112 of 1960 in which he had ordered theeviction of the defendants from the property. A reference toEx.A.39 and A.40 being the orders granting the interim stayand the order making it absolute respectively, will show thatthere was no injunction or order staying any suit."Following the above said ratios only the learned trial Judge has come to aconclusion that the relevant period stayed in execution proceedings inrespect of the suit property in other suit cannot save limitation in thissuit, which is filed for specific performance of the contract in respectof the suit property. But to our dismay the learned first appellate courthas brushed aside the findings of the trial Court and not even discussedabout the facts and the findings in those two ratios. This attitude ofthe first appellate Court is deprecated as an uncared and lethargic way ofapplying Judge made law to the present facts of the case. Under suchcircumstances, I am of the considered view that the findings of the firstappellate Court is liable to be set aside for the reasons indicated about.Point is answered accordingly. https://hcservices.ecourts.gov.in/hcservices/

14. In the result, the second appeal is allowed and the decree andjudgment in A.S.No.12 of 1993 on the file of the Court of SubordinateJudge, Dharmapuri is set aside and the suit in O.S.No.52/1985 on the fileof the Court of District Munsif, Dharmapuri is dismissed. In thecircumstances of the case, there is no order as to costs. ConnectedCMP.No.2215/1997 is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarssvTo1.The Subordinate Judge, Dharmapuri. (with records if any)2.The District Munsif, Dharmapuri.3. The Record Keeper, V.R.Section, High Court, Madras.1 cc To Mr.A.Arul Mozhi, Advocate, SR.3503.1 cc To Mr.D.Sivakumaran, Advocate, SR.3313.S.A.No.191 of 1997 JE(CO)RVL 08.02.2007