Annie Thomas and Others v. Baby

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 29[TH] DAY OF NOVEMBER 2021/ 8TH AGRAHAYANA, 1943** **F.A.O.NO.170 OF 2019** **AGAINST THE ORDER DATED 09.10.2019 IN E.A.NO.542 OF 2017** **IN E.P.NO.155 OF 2016 IN O.S.NO.782 OF 2012 OF THE PRINCIPAL SUB COURT,IRINJALAKUDA** ## **APPELLANTS:** - **1 ANNIE THOMAS** **AGED 45 YEARS, W/O EDAKUZHIYIL THOMAS, MONAYI DESOM, VELLIKULANGARA VILLAGE, CHALAKKUDY TALUK, VELLIKULANGARA P.O, THRISSUR DISTRICT - 680 702 (DIED).** - ***2 EDUKUZHIYIL THOMAS,** **AGED 57 YEARS, S/O MATHEW, RESIDING IN THE ADDRESS EDAKUZHIYIL HOUSE, MONAYI DESOM, VELLIKULANGARA VILLAGE, CHALAKKUDY TALUK, VALLIKULANGARA P.O., THRISSUR – 680 702.** - ***3 JINI,** - **AGED 24 YEARS, D/O EDAKUZHIYIL THOMAS, RESIDING IN THE ADDRESS EDAKUZHIYIL HOUSE, MONAYI DESOM, VELLIKULANGARA VILLAGE, CHALAKKUDY TALUK, VALLIKULANGARA P.O., THRISSUR – 680 702.** ***ADDITIONAL APPELLANTS ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANT AS PER ORDER DATED 09.03.2021 IN I.A.NO.1 OF 2021. BY ADV SRI.G.SREEKUMAR (CHELUR)** 2 F.A.O.No.170 of 2019 ## **RESPONDENT:** ## **BABY** **AGED 65 YEARS, S/O PORATHUKARAN OUSEPH, MANNUMPETTA DESOM, AMBALLOOR VILLAGE, AMBALLUR PO, MUKUNDAPURAM TALUK, THRISSUR DISTRICT- 680 301, PRESENTLY RESIDING AT SANTHOSH STREET, CHIYYARAM VILLAGE, KURIACHIRA P.O, THRISSUR DISTRICT - 680 006.** **BY ADVS.** **SRI.K.R.ARUN KRISHNAN SMT.DEEPA K.RADHAKRISHNAN SRI.ARUN SAMUEL** **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 29.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 F.A.O.No.170 of 2019 ## **JUDGMENT** ## Ajithkumar, J. This is an appeal under Order XLIII, Rule 1(j) of the Code of Civil Procedure, 1908. 2. The appellant is the judgment debtor in O.S.No.782 of 2012 of the Principal Sub Court, Irinjalakuda. It was a decree allowing realisation of money paid towards advance sale consideration. The respondent-decree holder filed E.P.No. 155 of 2016 for execution of the decree. The property belonging to the appellant was brought on sale in the auction held on 23.05.2017. The property was bid by the respondent-decree holder. 3. On 24.07.2017, the appellant filed E.A.No.542 of 2017 seeking to set aside the sale on the ground that there occurred fraud and material irregularity in the publishing and conduct of sale. The appellant contended that the property would worth Rs.40 lakhs, but it was sold for a meager sum of Rs.5,00,100/-. It was also alleged that the auction was conducted in a clandestine manner and without making a proclamation by beat of drums. 4 F.A.O.No.170 of 2019 4. The respondent-decree holder resisted the said application by filing an objection. 5. On 01.11.2019 the appeal was admitted ordering urgent notice to the respondent. The delivery of the property on the basis of the sale impugned in this appeal was stayed for two months. Interim stay was extended from time to time and is still in force. 6. Heard the learned counsel appearing for the appellant and also the learned counsel appearing for the respondent. 7. The executing court dismissed the application on two grounds; (i) the application for setting aside the sale was barred by the law of limitation; and (ii) there was no fraud or irregularity in the publishing or conduct of sale of the property. 8. The learned counsel appearing for the appellant submitted that having the last day of the period of limitation, happened to be a holiday, the application filed on the very next day, was well within the period of limitation. 5 ## F.A.O.No.170 of 2019 9. The auction sale was conducted on 23.05.2017. Application to set aside the sale, E.A.No.542 of 2017 was filed on 24.07.2017. Article 127 of the Limitation Act, 1963 prescribes a period of 60 days for filing an application to set aside a sale in execution of a decree. The period of limitation would begin to run from the date of the sale as is provided in the third column in the schedule to the Limitation Act. 10. Section 12(1) of the Limitation Act reads that 'in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded'. Since the day from which the period starts to run needs to be excluded, the period of limitation in this case has to be computed from 24.05.2017. Therefore, in May there were 8 days. Adding 30 days in June and 22 days in July, the last date for filing the application for setting aside sale, under Order XXI, Rule 90 of the Code was 22.07.2017. 11. The question is whether the application should be filed on the last day of the period of limitation to avoid the bar. If, on the other hand, it is enough to file on the next day only, the application needs to have been filed on 23.07.2017. 6 ## F.A.O.No.170 of 2019 The said day happened to be a public holiday, being a Sunday. In view of the provisions of Section 4 of the Limitation Act, where a prescribed period expires on a day when the court is closed, it is enough if the application is filed on the day when the court reopens. Therefore, the application filed on 24.07.2017, would not be time barred. 12. The purpose behind enacting the law of limitation was to prescribe time limit for availing legal remedy for the grievance caused. The idea is that the legal remedy must be kept alive for a period fixed by the legislature- **Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and another [(2010) 5 SCC 459]** . The law of limitation thereby limits the time after which a suit or other proceedings cannot be maintained in Court- **Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others [(2013) 12 SCC 649]** . It implies that an action begun after the period of limitation has expired and is not maintainable. 13. The object of prescribing a particular period is to give a quietus to the dispute, which is based on public policy. 7 ## F.A.O.No.170 of 2019 It may be said that in fixation of period of limitation there is arbitrariness to a certain extent. The Apex Court in **R.Rudrai** **and another v. State of Karnataka and others [(1998) 3** **SCC 23]** held that in construing provisions in the law of limitation there shall not be any equitable consideration; and the strict grammatical meaning of the word is the safe guide. As per Section 2(j) of the Limitation Act, period of limitation means the period of limitation prescribed for any suit, appeal or application by the Schedule. Its meaning on a grammatical interpretation is plain, that it is the period within which the suit, appeal or application is to be instituted. 14. Section 12(1) of the Limitation Act provides that the day from which the period of limitation is to be reckoned shall be excluded. There is no provision in the Limitation Act explaining how the last day of the period of limitation has to be reckoned with. The Schedule to the Act contains the scheme for computation of the period of limitation. Divisions one, two and three in the Schedule relate respectively to suits, appeals and applications. The first column contains the description of suits, appeals and applications, while the second column provides the 8 F.A.O.No.170 of 2019 period of limitation and the third column explains as to from which period time begins to run. The period of limitation for different kinds of suits, appeals and applications are in terms of year/s or days. When the period of limitation provided for in terms of year/s or days is computed, it is a pertinent question whether the date for institution of the suit, appeal or application is the day on which the period ends or the next day. 15. In the absence of a provision in the Limitation Act, the legislative delineation contained in Section 9 of the General Clauses Act, 1897 in this regard has to be looked into. Section 9 of the General Clauses Act, 1897 reads thus,- '9.(1) If any Central Act or Regulation made after the commencement of this Act, it shall be sufficient for the purpose of excluding the first of a series of days or any other period of time, to use the words 'from', and, for the purpose of including the last in a series of days or any other period of time, to use the words 'to'.' ## 16. In **Saketh India Ltd. v. India Securities Ltd.,** **[(1999) 3 SCC 1]** the Apex Court considered the question as to how the period of one month prescribed for filing a complaint under Section 138 of the Negotiable Instruments 9 F.A.O.No.170 of 2019 Act, 1881 has to be computed. It was held that Section 12(1) of the Limitation Act provides for excluding from the period of limitation the day from which such period is to be reckoned and that the same principle is incorporated in Section 9 of the General Clauses Act. It was further held that in the light of the provisions in Section 9 of the General Clauses Act, for the purpose of computing the period of limitation, the ordinary rule to be observed is to exclude the first day and to include the last. 17. In **Tarun Prasad Chatterjee v. Dinanath Sharma [(2000) 8 SCC 649]** the Apex Court considered whether the provisions of Section 9 of the General Clauses Act can be applied for computation of period of limitation applicable to an election petition under Section 81(1) of the Representation of People Act, 1951. The period prescribed for presentation of an election petition is 45 days. The point for consideration was whether the date of election of the returned candidate should be excluded or not. The Apex Court on interpreting the provisions of Section 9 of the General Clauses Act held that when a period is delimited by a statute or a rule 10 ## F.A.O.No.170 of 2019 which has both a beginning and an end and the word 'from' is used indicating the beginning, the opening day is to be excluded and if the last day is to be excluded the word 'to' is to be used. It was accordingly held that the day of the election has to be excluded from the period of limitation. 18. In **Sasi D v. R S Devadas [2008 3 KLT 925]** the question was whether Section 12(1) of the Limitation Act applies to an execution petition and how the period of limitation of 12 years for filing an execution petition has to be computed. A learned Single Judge of this Court held that Section 12(1) does not exclude from its ambit an execution petition. The Court following the principle laid down in **Saketh** **India and Tarun Prasad Chatterjee (supra)** held that while computing the period of limitation of 12 years the first day, that is, the date of the decree is to be excluded. 19. The specific question considered by a Division Bench of the High Court of Gujarat in **Rajibhai T.Choitani v.** **State of Gujarat and others [1988 SCC OnLine Guj 96]** was whether the last day is to be excluded or included with the period. The issue involved was, how the period of seven 11 F.A.O.No.170 of 2019 days within which the State Government shall report to the Central Government about an order of detention passed under the provisions of the Prevention of Blackmarketing and Maintenance of Supply of Essential Commodities Act, 1980 has to be computed. The Court after referring to Section 9 of the General Clauses Act held,- 'Section 9 of the General Clauses Act speaks about the commencement and termination of time. It inter alia provides that it shall be sufficient for the purpose of excluding first in a series of days or any other period of time to use the word 'from' and for the purpose of including the last in a series of days or any other period of time to use the word 'to'. It is therefore clear that Section 9 of the General Clauses Act statutorily recognises the well established principle applicable to construction of statutes that ordinarily in computing time, the rule observed is to exclude the first day and to include the last day.' 20. When the period of limitation is prescribed as a particular number of days, how 'day' has to be understood was the question considered in **Rajkumaryadav v. Samir Kumar Mahaseth and others [(2005) 3 SCC 601].** It was held that the word 'day' is not defined in the Act. It shall have 12 ## F.A.O.No.170 of 2019 to be assigned its ordinary meaning as understood in law. The word 'day' as per English calendar begins at midnight and covers a period of 24 hours thereafter, in the absence of there being anything to the contrary in the context. 21. In **Mustaga Kamal v. Eswaran Namboodiri [ILR 1991 (1) Ker.351: 1991 KHC 612]** the execution petition was not filed on the day on which the period of twelve years was completed. The period of twelve years was completed on 05.04.1986. The Court closed on that day for mid-summer vacation. The decree-holder claimed that the execution petition filed on the reopening day was within the period of limitation. A learned Single Bench of this Court held, 'In computing the period of limitation the date from which such period is to be reckoned shall be excluded under Section 12 of the Limitation Act. Excluding the date from which each period is to be reckoned, time begins to run from 6[th] April 1974. The period of 12 years will expire on 5[th] April 1986 on which date the court closed for mid summer vacation. It is contended by the learned counsel for decree-holder that the petition could have been filed on the next day and since the vacation commenced from that day the petition was filed on the reopening day. But it has to be noted that the period 13 F.A.O.No.170 of 2019 expired on 5[th] April 1986. That is, the decree has got barred by mid-night of that day. The petition filed on the next day will be clearly barred by limitation. The last day of limitation being 5[th] April 1986 respondent was bound to file that application on that day and by the mid-night of that day the period of 12 years expires and there is no live decree to be executed on the next day.' 22. The conspectus of the discussion made above is that when a particular number of days is fixed as the period of limitation the first day shall be excluded and the last day has to be reckoned as included in the period of limitation. The period of limitation will expire on the last day and the suit, appeal or application filed on the next day is time barred. 23. Section 5 of the Limitation Act which enables condonation of delay is not applicable to the proceedings under Order XXI of the Code. The Apex Court in **Aarifaben Yunusbhai Patel v. Mukul Thakorebhai Amin [(2020) 5** **SCC 449]** held that Section 5 of the Limitation Act is not applicable to the execution proceedings. 24. The conclusion is therefore irresistible. E.A.No.542 of 2017 in E.P.No.155 of 2016 in O.S.No.782 of 2012 of the 14 F.A.O.No.170 of 2019 Principal Sub Court, Irinjalakuda, which was for setting aside the sale, filed on 24.7.2017 is time barred. Therefore, we hold that this Court cannot interfere with the impugned order. 25. The appeal fails and the same is dismissed without any order as to costs. 26. It is brought to our notice that the appeal filed against the decree in O.S.No.782 of 2012 is pending before this Court as R.F.A.No.90 of 2019. We make it clear that the decision in this appeal will not have any bearing as far as R.F.A.No.90 of 2019 is concerned. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr