TMI Blog1976 (10) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 transmissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue 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which is the day on which the Limitation Act, 1963, was brought into force and the Indian Limitation Act 1908 stood repealed. 5.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquired, 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, 1955CriLJ254 , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (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 decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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