Petition by person not L.R of deceased decree-holder if can save limitation.

The question for determination in this second appeal is whether a certain execution petition is in time.

On 10th June, 1932, one Sankaran, who subsequently died, obtained a decree for arrears of rent in O.S.No.219 of 1932 on the file of the District Munsif of Quilandy. When he was alive, Sankaran filed in succession three execution petitions, the last of which was E.P.No.324 of 1939. This was disposed of on 17th July, 1939. After the death of Sankaran, one Kunhi Raru, claiming to have become the karnavan of the tavazhi filed E.P.No.553 of 1942 for the recovery of the decree amount. Notice was ordered to the judgment-debtors and eventually on 11th August, 1942, the petition was dismissed for non-payment of batta. On 5th July, 1944, Kunhi Raru in the same capacity filed another E.P.No.272 of 1944. In this also notice was issued to the judgment-debtors. In the counter which they filed, the judgment-debtors pleaded inter alia that Kunhi Raru was neither the heir nor the legal representative of the deceased Sankaran, that the property did not belong to the tavazhi of Sankaran but that it was his separate and personal property. Referring to the decree debt they stated as follows:

“It has been obtained for realisation of the arrears of pattam due from private properties and; for Court expenses, etc. In that circumstance, except the wife and children of the decree-holder, the deceased Ukkandan alias Sankaran, the petitioner has no manner of right to execute the above decree...................The wife and children of the petitioner should be impleaded as parties in this petition.”

This execution petition was finally dismissed on 5th July, 1944. In June, 1945, the widow and children of Sankaran filed a petition R.E.P.No.370 of 1945 to execute the decree, their claim being that the properties in relation to which the decree had been obtained, were the separate and personal properties of Sankaran and that on his death they became his heirs in respect of the properties. The question thus arose whether the properties in respect of which the decree for arrears of pattam had been obtained belong to the tavazhi of Sankaran or whether they were his separate and personal properties. The District Munsif took the view that the properties belonged to the tavazhi and in that view dismissed R.E.P. No.370 of 1945. On appeal, the learned Subordinate Judge found that the properties were the separate properties of Sankaran but that the execution petition filed by the widow and children of Sankaran was barred by time. In that view, that execution petition was held to fail. In Civil Miscellaneous Second Appeal No.7 of 1948, disposed of on 27th August, 1950, I found that these properties were the separate and personal properties of Sankaran. The proper persons therefore entitled to execute the decree are his widow and children. The question therefore arises whether R.E.P.No.370 of 1945 is in time.

Mr. Gopalan Nambiar, the learned advocate for the appellant here, tried to make out in a number of different ways, that the execution petition is in time. In the present case it will be noticed that if it can be held that E.P.No.553 of 1942 and E.P.No.272 of 1944 filed by Kunhi Raru were proper applications made in accordance with law, R.E.P.No.370 of 1945 would be in time. In some cases it has been held, in the circumstances set out in them that an execution petitioner can avail himself of a previous application filed by some one else to meet the plea of limitation set up by the judgment-debtor. Mr. Nambiar tried to argue on the analogy of those decisions that the widow and children of Sankaran were entitled to utilise the execution petition filed by Kunhi Raru to defeat the plea of limitation set up by the judgment-debtors. But on an examination it will be seen that all those decisions proceeded on principles, none of which can be properly invoked in the present case.

In Ghanaya Lal v. Madho Parshad1, an execution petition was filed by the guardian of a min