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IN THE HIGH COURT OF MADRAS
Horace Owen Compton Beasley, Kt., C.J.
Munnaluri Rama Rao minor by guardian Gangamma and Anr.
Versus
Tadikonda Sreeramamurthi and Ors.
Decided On : 15.02.1936
appealable decree - execution petition - Section 47 Civil Procedure Code - Rajah of Ramnad v. Velusami Tevar (1920) 40 M.L.J. 197 L.R. 48 : I.A. 45 - Shiva Narayan Lal v. Narayan Prasad AIR1924Pat683 - appealable decree directly pronounced - plea of limitation raised in execution petitions - appealable order - Privy Council decision influenced the court's decision
Fact of the Case:
The execution petition related to outstandings and mesne profits from a partition suit. The court had full knowledge of the settlement between the parties. The minor plaintiff's next friend received the money outside the court without its sanction. The court approved the receipt and recorded satisfaction. The minor's widow continued the execution proceedings after his death.
Finding of the Court:
The court held that the execution petition was not barred by limitation as the mesne profits were not yet determined by the court. The court also held that the minor was not entitled to ignore the satisfaction recorded and that the execution petition was not barred by limitation.
Issues: The issues revolved around the settlement of outstandings and mesne profits, the validity of the receipt of money by the minor plaintiff's next friend, and the applicability of limitation to the execution petition.
Ratio Decidendi: The court's decision was influenced by the approval of the receipt by the court and the recording of satisfaction, as well as the determination of mesne profits by the court. The court also considered the applicability of limitation to the execution petition.
Final Decision: The court dismissed certain appeals and allowed others with costs.
Horace Owen Compton Beasley, Kt., C.J.
1. The preliminary objection as regards the orders in these cases made in the lower Court being appealable must be overruled.
2. One of the orders in question is an order disallowing a plea that the execution petition was barred by limitation and that order having been made, subsequent proceedings were adjourned until a future date. The other is an order allowing the mortgagee from the original decree-holder in the suit to be brought on as legal representative of the deceased widow of the original decree-holder and to continue the execution.
3. A number of cases have been put before us but it is only necessary to refer to three of them. One is Rajah of Ramnad v. Velusami Tevar (1920) 40 M.L.J. 197 L.R. 48 : I.A. 45 a decision of the Privy Council and another is Shiva Narayan Lal v. Narayan Prasad AIR1924Pat683 . The latter case holds the view that an order dismissing a plea of limitation as regards an execution petition in execution proceedings is an appealable decree under Section 47 Civil Procedure Code; and that decision-is directly in point. I think also that the Privy Council decision in Rajah of Ramnad v. Velusami Tevar (1920) 40 M.L.J. 197 L.R. 48 : I.A. 45 just referred to must be taken to be in point as well although it is pointed out by Mr. Raghava Rao, that the order in question there was a final order in that it closed that execution petition. I think, however that the Privy Council decision must be taken to be that whenever a plea of limitation is raised in execution petitions and there is a finding thereon, the order is an appealable decree. Obviously, if the plea is allowed, it must be an appealable order : and similarly, if it is rejected, in the view of the Privy Council, it is an appealable decree. If it is an appealable decree it seems to me that it must follow that it is an appealable decree directly it has been pronounced. It is not right under those circumstances to wait until some other order is made in the execution petition. Our attention was drawn to a decision of a Bench to which I was a party and indeed I delivered the judgment - namely Zamindar of Bodinaickanur v. Kamaraja Pandia Naicker (1933)64MLJ735 . The judgment is a very short one and it does not appear that in the course of the arguments any reference was made to the Privy Council decision in Rajah of Ramnad v. Velusami Tevar (1920) 40 M.L.J. 197 : L.R. 48 IndAp 45 and no reference is made to that decision in the judgment. In view of what I have stated I am driven to the conclusion that that decision was not a correct one and that the correct view of the position is that stated in this judgment following as it does the Privy Council decision and agreeing as it does with the decision in Shiva Narayan Lal v. Narayan Prasad A.I.R. 1923 Pat. 683. The preliminary objection is therefore overruled.
Stodart, J.
4. I agree with my lord the Chief Justice. The preliminary objection having been overruled, it is now necessary to consider whether the execution petition relating to the outstandings and mesne profits was barred by limitation. The learned Subordinate Judge held that the execution petition was not barred.
5. The history of this matter is as follows : The petitioner in the execution petition is the respondent in these appeals and is the legal representative of the second plaintiff in the suit. That suit was for partition filed by two brothers as plaintiffs against the other coparceners. The two plaintiffs were Balakrishnahayya and Yegnanarayana, the two sons of Rangayya; and the defendants were the descendants of Ramayya, Rangayyas brother. Yegnanarayana was a minor and the first plaintiff acted as his next friend. The suit was referred to arbitration and there was an award dated 15th Mach, 1921 and a judgment and decree in terms of the award dated 29th April, 1921. On 14th September, 1922, there was a release deed by the plaintiffs in respect of the outstandings and in consideration for this the plaint
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