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Malagarasamma and anr. Vs. Gurusiddamma and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 825 of 1981
Judge
Reported inAIR1985Kant207; ILR1985KAR1628; 1985(1)KarLJ206
ActsLimitation Act, 1963 - Schedule - Article 136
AppellantMalagarasamma and anr.
RespondentGurusiddamma and anr.
Appellant AdvocateM.S. Purusothama Rao, Adv.
Respondent AdvocateG.S. Visweshwara, Adv.
Excerpt:
.....is precluded from framing such charge, which the complaint discloses, though the complainant may not produce any other evidence other than the complaint in support of the prosecution case - the order of transfer in the instant case was passed on the 24th august, 1950, well beyond the period of 12 years provided by s......judge was therefore right in holding that the district court had no jurisdiction to entertain the execution petition.'thus, it becomes clear from the said facts that the date on which the transfer order was passed was itself beyond 12 years. therefore, on account of this circumstance the andhra pradesh high court held that the execution petition was barred by limitation. but, in this case the order was passed by the munsiff transferring the decree on 27-11-79, while the date of decree is 29-11-67. therefore, the period of 12 years will have to be counted from the date 27-11-79, when the order transferring the decree was passed. in my opinion, it is a judicial order. if that date is taken into consideration the bar of 12 years would not come into play at all. therefore, the court.....
Judgment:
ORDER

1. This is a revision against the order dated 4-2-81 passed by the Munsiff, Malavalli, in Ex. Case No. 104/79, holding that the execution petition was maintainable.

2. The decree-holder obtained a decree against the judgment-debtor in Mandya Munsiff Court. Thereafter, a new Munsiff Court was established at Malavalli. So he filed an application in the Court of the Munsiff, Mandya for transferring the decree to Malavalli Court. The Munsiff Court, Mandya passed an order on 27-11-79, ordering the transfer of decree to the Munsiff Court, Malavalli. The execution petition was actually filed on 14-12-79 in the Munsiff Court at Malavalli. The decree sought to be executed was passed on 29th November, 1967. Learned counsel for the revision petitioner submitted that the 12 years mentioned in Article 136 should start from the date on which the decree was passed i.e. 29-11-67 and so as on 14-12-79, the date on which the execution petition was filed, the petition was barred by limitation. According to learned counsel Visweswaraya the transfer proceeding are judicial proceedings and the limitation should be taken as starting from the date of order of transfer of the decree, which is a judicial order. Sri. M. S. Purshotama Rao relied on Narasimha Rao v. Surayya, AIR 1957 Andh Pra 544. It is stated in para. 16 of the said case as :

'From the above discussion of the cases cited it is clear that so far as the Madras High Court is concerned, the view taken is that the order of transfer is a judicial order and that it takes effect from the date on which it is passed. The order of transfer in the instant case was passed on the 24th August, 1950, well beyond the period of 12 years provided by S. 48, Civil Procedure Code. The execution petition was rejected by the District Judge on the 1st August, 1950 and on that date there was no order of the Subordinate Judge's Court transmitting the decree for execution to the District Court. The learned Judge was therefore right in holding that the District Court had no jurisdiction to entertain the execution petition.'

Thus, it becomes clear from the said facts that the date on which the transfer order was passed was itself beyond 12 years. Therefore, on account of this circumstance the Andhra Pradesh High Court held that the execution petition was barred by limitation. But, in this case the order was passed by the Munsiff transferring the decree on 27-11-79, while the date of decree is 29-11-67. Therefore, the period of 12 years will have to be counted from the date 27-11-79, when the order transferring the decree was passed. In my opinion, it is a judicial order. If that date is taken into consideration the bar of 12 years would not come into play at all. Therefore, the Court below was justified in holding that the petition filed by the decree-holder was maintainable.

3. Hence, there is no merit in the revision and it is dismissed.

4. Revision dismissed.


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