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Shri Venkataramanaswami Permanent Bhandar Ltd. Vs. Ijari Padmarajappa and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberEx. Second Appeal No. 14 of 1968
Judge
Reported inAIR1971Kant182; AIR1971Mys182; (1971)1MysLJ131
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 11(2) - Order 22, Rule 2
AppellantShri Venkataramanaswami Permanent Bhandar Ltd.
Respondentijari Padmarajappa and ors.
Appellant AdvocateV. Tharakaram, Adv.
Respondent AdvocateV.S. Gunjal, Adv.
DispositionAppeal allowed
Excerpt:
.....and virtually giving a total go-by to the objectives of the scheme, as if a suitable or proper person is not appointed as an anganawadi worker, who in terms of paras 5.22 to 5.26 of the manual on icds is a key person in the implementation of the project, the scheme can go awry and the very objective of the icds programme is defeated. -- integrated child development service programme (icds) : social welfare measure implementation of the scheme icds programme mooted by the central government order of the government totally at variance with icds programme held, in the present case, it is not the correctness of the reasonableness of the scheme that is in issue before the court, but an arbitrary, illogical, irrational act on the part of the state government acting as the agent of the..........on the file of the district munsiff, hospet, for the recovery of a sum of rs. 2,277-10-0. the decree-holder has sued out execution for the recovery of rs. 4,049-45 paise in e. p. no. 138/65 before the munsiff at harapanahalli. the judgment-debtors amongst other objections, contended that present execution petition i.e., e. p. no. 138/65 filed on 15-8-1965 is barred by time. it may be mentioned that the decree-holder had sued out execution in e. p. no. 670/57 and that was dismissed on 16-4-1958. the second application was made on 7-10-1960 and came to be dismissed on 5-12-1960. the next application was on 6-7-1962 and came to be dismissed on 26-8-1963. there was an intermediate application registered as e. p. 95/64 which was filed in a court which the decree-holder thought as having.....
Judgment:

K.R. Gopivallabha Iyengar, J.

1. The appellant-decree-holder obtained a decree on 22-4-1955 against the respondents-judgment-debtors in O. S. No. 138/55 on the file of the District Munsiff, Hospet, for the recovery of a sum of Rs. 2,277-10-0. The decree-holder has sued out execution for the recovery of Rs. 4,049-45 paise in E. P. No. 138/65 before the Munsiff at Harapanahalli. The judgment-debtors amongst other objections, contended that present execution petition i.e., E. P. No. 138/65 filed on 15-8-1965 is barred by time. It may be mentioned that the decree-holder had sued out execution in E. P. No. 670/57 and that was dismissed on 16-4-1958. The second application was made on 7-10-1960 and came to be dismissed on 5-12-1960. The next application was on 6-7-1962 and came to be dismissed on 26-8-1963. There was an intermediate application registered as E. P. 95/64 which was filed in a Court which the decree-holder thought as having jurisdiction to execute the decree without obtaining transfer of the same from the court which passed the decree. Therefore, it was also dismissed on 19-4-1965 for want of jurisdiction. The present execution petition was filed on 5-8-1965.

2. The question of limitation arises in view of the contention that the applications filed on 7-10-1960 and dismissed on 5-12-1960 and the petition dated 6-74962 dismissed on 26-8-1963 were made by the President of the decree-holder appellant (Permanent Bhandar Ltd.). It is submitted that it is not disputed that the appellant-decree-holder was represented by its Secretary in the original suit; therefore, it is only the Secretary who could file a valid execution petition; as the President has made the petition it is necessary to show that he had the authority to make the petition. The trial Court has held that the petition is barred by time for two reasons, i.e., that the application is not made by the Secretary and that the applications dated 7-10-60 and 6-7-62 had not been registered as execution petitions as they were not served as steps-in-aid by execution and save time for the present execution petition. Therefore, the learned Munsiff dismissed the execution petition.

Against the order of the learned Munsiff, the decree-holder preferred Appeal Suit No. 26/66 before the Civil Judge, Bellary. The learned Civil Judge disagreed with the view of the learned Munsiff that the orders passed in the two execution petitions referred to above were not final orders. He held that they were final orders even though the execution petitions had not been numbered and registered. He placed reliance on the Full Bench decision of the : AIR1955Mad615 (FB). But. he agreed with the view of the trial court that the President cannot make the petition as the decree was obtained by the Secretary. It appears to me that both the courts have ignored the provisions of Order 21, Rule 11 of the Code of Civil Procedure. Order 21, Rule 11 (2), Civil P. C. provides that

'......every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely......'.

The learned Civil Judge observes that: 'Evidently, the President cannot be said to be the person in whose favour the decree has been passed nor can it be said that he is the person authorised to set out execution. He is thus not competent to execute the decree'. As provided in Rule 11 (2) of Order 21 any person proved to the satisfaction of the court be acquainted with the facts of the case can make a valid execution petition. In this case, it is undisputed that the president has made out the execution petition. It would be correct to say that it is the appellant-Corporation that has obtained the decree represented by its secretary and now execution is sued out by the president of the Corporation. Prima facie it can be taken that the president is a person acquainted with the facts of the case. Therefore, he is competent to make the petition, if once the petition is made by a person competent to do so, any other order passed thereon would be a final order as held by the lower appellate court, extending the period from the date of the order under Article 182(5) of the Limitation Act. The question whether the president has authority or not is quite different from being a person acquainted with the facts of the case. The only way in which the matter should be looked at is whether the petitions made on 7-10-1960 and 6-7-1962 are intended to further the execution of the decree so as to serve as steps-in-aid of execution. It is apparent that these petitions are filed with a view to further the execution of the decree. Therefore, it appears to me that the application made on 7-10-1960 which was disposed of on 5-12-1960 saves limitation in respect of the application made on 6-7-1962 which was disposed of on 26-8-1963. This again saves limitation so far as the present execution petition is concerned. Therefore, the view taken by the lower courts that the petitions are barred by time or that they are not maintainable, cannot be sustained.

Sri Gunjal, the learned counsel appearing for the respondents-judgment debtors drew my attention to the fact that after the appeal was filed, the second respondent died and the appellant failed to bring the legal representatives on record and actually the name of the respondent 2 was deleted. His contention is that the deletion of the second respondent's name would result in the abatement of the entire appeal and the decree cannot be executed against the remaining respondents. It is noticed that the decree is passed against all the three respondents and all the three respondents are liable to satisfy the decree. Sri Gunjal's contention is that as the decree does not direct that the liability of the judgment-debtors is joint and several, it must be taken as joint and therefore, if the liability against one disappears the liability against others also disappears. I am unable to accept this contention. When a decree is passed against three persons, those three persons, unless the decree otherwise directs are jointly and severally liable to satisfy the decree. It is open to the decree-holder to proceed against one or other judgment-debtors, he is not bound to proceed against all the judgment-debtors. Therefore, it appears to me that the deletion of the second respondent's name does not result in abatement of the appeal as a whole.

In the view I have taken with regard to the limitation and maintainability of the execution petitions, the judgment of the courts below are liable to be set aside. It is accordingly set aside. Appeal is allowed with costs.


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