Subba Rao, J.-This is an appeal against the order of the Court of the Subordinate Judge of Madura in E.P.No. 76 of 1946. The facts relevant for appreciating the questions raised may be briefly narrated. Thothan Chetti is the father of Vyravan Chetti. Shanmugham Chetti is the son of Vyravan Chetti. Vyravan Chetti executed a mortgage in favour of the plaintiff in September, 1921, for himself and as guardian of his son, the 2nd defendant, for a sum of Rs. 50,000. The mortgagee instituted O.S.No. 114 of 1925 against Vyravan Chetti and his son and obtained a preliminary mortgage decree against the share of Vyravan Chetti on 16th January, 1930. Final decree was passed on 30th September, 1930. The suit against his son, the 2nd defendant was dismissed. There were appeal and cross-appeal to the High Court against that decree being, A.S.Nos. 406 and 467 of 1930. On 14th August, 1934, the High Court confirmed the mortgage decree against the 1st defendant and passed a simple money decree against the and defendant to the extent of his share in the family properties. Meanwhile, in execution of the mortgage decree the share of the 1st defendant was brought to sale, and for the balance of the amount due a personal decree was obtained against him on 15th November, 1932. An appeal was filed to the High Court against the personal decree, being C.M.A.No. 66 of 1933. That appeal also was heard along with the appeals against the preliminary decree and was dismissed on 14th August, 1934. Various applications were filed in execution of both the money decree and the mortgage decree. After giving credit to the amounts realised, the decree-holder filed E.P.No. 76 of 1946 against the 1st defendant for the balance of the amount due to him. On 13th December, 1944, the 1st defendant filed an application for relief under section 14 of the Madras Agriculturists Relief Act, and the learned Subordinate Judge, by an order, dated and September, 1946, gave the relief. The appeal against that order is C.M.A.No. 644 of 1946, which we have dismissed1. In E.P.No. 76 of 1946 the learned Judge directed the decree-holder to file a momo. of calculation to which the judgment-debtor raised various objections. He also filed several memos. on different basis to substantiate his objections. After hearing the objections and expressing his views on the same, the learned Judge directed the decree-holder to file a fresh memo. of calculation. He filed a memo. on 2nd September, 1946, claiming Rs. 30,005-14-0 as on and September, 1946, plus costs of execution. On 8th January, 1947, he heard arguments on the question of limitation. Having held that the application was not barred by limitation he accepted the memo. filed by the decree-holder and fixed the amount payable to him at Rs. 30,005-14-0. By an order, dated 6th March, 1947, E.P.No. 76 of 1947 was amended and the ascertained figure was substituted. The 1st defendant preferred the above appeal against that order.

The learned counsel for the appellant in an exhaustive and careful argument contended that E.P.No. 76 of 1946 was barred by limitation. He contended that the personal decree against the 1st defendant was dated 15th November, 1932 and therefore E.P.No. 76 of 1946, which was filed on 4th March, 1946, is clearly barred under section 48 of the Civil Procedure Code. It may be mentioned at the outset that this point was not pressed before the learned Subordinate Judge. But as it raises a question of law based on facts in regard to which there is no dispute, we allowed the learned counsel to raise that plea for the first time before us. His argument as finally elaborated may be specified under four sub-heads. (1) The personal decree against the 1st defendant was made on 15th November, 1932. An incompetent appeal was filed against that decree being C.M.A. No. 66 of 1933. That was not a regular appeal, but was filed as a miscellaneous appeal as if against an order, without full court-fee being paid. As no regular appeal was filed

Click Here to Read the rest of this document