Back
IN THE HIGH COURT OF MADRAS
Alfred Henry Lionel Leach, C.J.
Vadlamanneti Damodara Rao
Versus
The Official Receiver, Kistna and Anr.
Decided On : 24.08.1945
Limitation - Execution of Decree - The court held that the later application for execution was not barred by limitation as it was a continuation of the previous application, and the properties sought to be embraced in the later application were the same as those referred to in the earlier petition. The appeal was dismissed with costs.
Fact of the Case:
The respondent obtained a decree against the appellants and their father for payment. The respondent filed an application for execution, which was closed for statistical purposes. Later, the respondent filed another application for execution, which was dismissed by the District Judge on the grounds of limitation.
Finding of the Court:
The court found that the later application for execution was not barred by limitation and was a continuation of the previous application. The properties sought to be embraced in the later application were the same as those referred to in the earlier petition.
Issues: The main issue was whether the later application for execution was barred by the law of limitation.
Ratio Decidendi: The court held that where a fresh petition is filed as the result of a former petition being 'closed' for statistical purposes, it is not regarded in law as being a fresh application but an application to revive or continue the former application. The properties sought in the later application were the same as those referred to in the earlier petition.
Final Decision: The court held that the District Judge was wrong in dismissing the respondent's later application as being barred by the law of limitation and dismissed the appeal with costs. The case was remanded to the trial court, and the execution would proceed on this basis.
Alfred Henry Lionel Leach, C.J.
1. The question in this appeal is whether a decree obtained by the respondent has become barred by the law of limitation.
2. On the 21st September, 1932, the respondent obtained a decree against the appellants and their father for the payment of Rs. 2,832-12-0 with interest and costs. On the 22nd January, 1935, the respondent filed an application for execution in the Court of the District Judge of Kistna. This was numbered as Execution Petition No. 26 of 1935. Another creditor of the defendants had obtained a decree against them in Original Suit No. 5 of 1931 and had already applied for execution by the attachment and sale of the properties of the judgment-debtors. This application was numbered as Execution Petition No. 172 of 1932. The object of the respondent in filing Execution Petition No. 26 of 1935 was to obtain rateable distribution of the properties already attached by the decree-holder in O.S. No. 5 of 1931. He asked for an order for attachment, but added a prayer for rateable distribution. Some of the attached properties were sold in Execution Petition No. 172 of 1932 and the respondent obtained his share of the proceeds. The attachment continued in respect of the unsold properties.
3. On the 5th November, 1936, the District Judge passed an order in both the execution petitions closing them, the order being merely the word " closed." This was obviously done in accordance with the very bad practice which then prevailed of Courts closing petitions for execution for statistical purposes. Although the petitions were " closed " the attachment continued and continued at all times material to this appeal.
4. On the 22nd December, 1942, the respondent filed another application for execution. As over six years had elapsed since the District Judge " closed " the respondents first application, it was said that the new application was barred by limitation. The District Judge accepted this plea and dismissed the application. The respondent appealed to this Court and the appeal was heard by Chandrasekhara Aiyar, J. The learned Judge remanded the case to the District Court with the direction that there should be an inquiry as to whether the properties covered by the petition of the 22nd December, 1942, were the same as the properties covered by the previous petition. He indicated that in the event of the properties proving to be the same the execution Court should hold the later application to be within time. The appeal is from the learned Judges judgment.
5. We have called for all the records from the lower Court and an examination of them shows that the properties which the respondent sought to embrace in his application of the 22nd December, 1942, are the properties which were referred to in the earlier petition and what he wanted was rate able distribution of the sale proceeds of the unsold properties under attachment. Unless the order of the District Judge of the 5th November, 1936, is to be read as a final order dismissing Execution Petition No. 26 of 1935, the application of the 22nd December, 1942, is in time.
6. We have already stated that the earlier petition was merely " closed " for statistical purposes. As pointed out in Sivasubramaniam Chettiar v. Murugesa Mudaliar AIR1940Mad566 it is well-settled law that where a fresh petition is filed as the result of a former petition having been "closed " for statistical purposes, it is not regarded in law as being a fresh application but an application to revive or continue the former application. The order of the 5th November, 1936, was not a final order and the fresh application put in by the respondent must under the authorities be regarded as merely a continuation of the previous application. By the later application all he wanted was his share in the sale proceeds of the properties which still remained to be sold.
7. The decree-holder in Original Suit No. 5 of 1931 filed an application on the 3rd August, 1943, in continuation of his Executio
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
