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Mathu Rawther S/O Athar Rawther and anr. Vs. Sreekrishna Bank Through Its Managing Proprietor and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 885 of 1961
Judge
Reported inAIR1964Ker90
ActsLimitation Act, 1908 - Schedule - Article 182(5)
AppellantMathu Rawther S/O Athar Rawther and anr.
RespondentSreekrishna Bank Through Its Managing Proprietor and anr.
Appellant Advocate T.S. Venkiteswara Iyer, Adv. for Revn.
Respondent Advocate V. Balakrishna Eradi, Adv.
DispositionPetition dismissed
Cases ReferredOuseph v. Kochu
Excerpt:
limitation - legal representative - article 182 (5) of limitation act, 1908 - respondent (decree-holder) made application against legal representative of deceased judgment-debtor for transfer of decree to take out execution proceeding - petitioner contended that application for execution barred by limitation - whether lower court justified in allowing respondent to proceed with execution - application for execution dated 17.07.1957 was a step in aid of execution - subsequent application was within time - order of lower court justified. ) - - chockalinga chettiar, ilr 17 mad 76 it was held by muthuswamy iyer and best, jj......against immovable properties of the deceased. the revision petitioners contended that the execution application was barred by limitation, that the prior e. p. no. 546/1957 was not a step in aid of execution, that the factum of the death of the judgment-debtor was known to the decree-holder at that time and that all the legal representatives were not impleaded.. 2. the lower court repelled these contentions and allowed the decree-holder to proceed with e. a. 812 of 1960. it is this order that is challenged in this revision petition.3. when the petition came on for hearingbefore one of us, it was referred to a division bench as the decisions governing the question are not uniform.4. the only point for consideration in this revision is whether the application for execution i.e., e......
Judgment:

Mathew, J.

1. The legal representatives of the deceased judgment-debtor, viz., respondents 1 and 2 in E. A. 812/1960 S. C. S. 865/1955 on the file of the Munsif's Court, Palghat, are the revision petitioners. This revision is directed against an order of the Court below impleading the petitioners and the 2nd respondent in the civil revision petition as the legal representative of the deceased judgment-debtor. The 1st respondent had obtained a decree against one Abdul Razack Rowther on 28-11-1955. He died on 24-11-1956. The decree-holder filed E. P. No. 546 of 1957 praying for the arrest of the judgment-debtor.

Notice of that application was returned with the report that the judgment-debtor was dead, butno attempt was made to implead his legal representatives. Therefore that E. P. was dismissed on 12-3-1957. The decree-holder then filed E. A. 12/1960 on 15-7-1960 against some of the legal representatives of the judgment-debtor praying for transfer of the decree to the original side so as to enable him to take out execution against immovable properties of the deceased. The revision petitioners contended that the execution application was barred by limitation, that the prior E. P. No. 546/1957 was not a step in aid of execution, that the factum of the death of the judgment-debtor was known to the decree-holder at that time and that all the legal representatives were not impleaded..

2. The lower Court repelled these contentions and allowed the decree-holder to proceed with E. A. 812 of 1960. It is this order that is challenged in this revision petition.

3. When the petition came on for hearingbefore one of us, it was referred to a Division Bench as the decisions governing the question are not uniform.

4. The only point for consideration in this revision is whether the application for execution i.e., E. A. No- 546/1957 filed on 17-7-1957 was an application for execution in accordance with law; if not whether it was a step in aid of the execution of the decree. The revision petitioners contend that the application was neither an application for execution in accordance with law nor a step in aid of execution, so as to save the bar of limitation. There is no dispute that if the application can be considered to be a step in aid of the execution, E. A. No. 812 of 1960 is within time.

5. On the question whether such an application can be considered to be a step in aid of execution the decisions of the Indian High Courts are not uniform. In the earliest case reported i.e., Samia Pilial v. Chockalinga Chettiar, ILR 17 Mad 76 it was held by Muthuswamy Iyer and Best, JJ., that,

'Where there has been in fact an application for execution made by the party entitled to make it, it is to be regarded as a step in aid of execution within the meaning of the Limitation Act, Article 179, although by mistake a deceased judgment-debtor is named as the person against whom execution is sought.'

This view has been followed in the subsequent Madras cases. We need only refer to the rulingreported in Chinnan Chettiar v. Sivaganga Estate Manager, AIR 1949 Mad 348 where this question was considered by Patanjali Sastri and Bell, JJ. Patanjali Sastri, J., (as he then was), though not without doubt, has expressed his concurrence with the view expressed in ILR 17 Mad 76. This is what he says:

'In this state of the authorities, we are intened to follow the decision in ILR 17 Mad 76; where, as already observed, the mention of the name of the deceased judgment-debtor as the person against whom relief in execution is sought was regarded as a matter for amendment under Order 21, Rule 17.'

6. In Bipin Behari v. Bibi Zohra, ILR 35 Cal 1047, the same view was taken following ILR 17 Mad 76. This was followed by that Court in Abdus Sattar v. Mohini Mohan Das, AIR 1933 Cal 684. In the Patna High Court the view taken in ILR 17 Mad 76 has been followed in Sheo-gobind v. Mt. Kishunbansi, AIR 1932 Pat 222 and Darogi Mandal v. Kameswar Singh, (S) AIR 1957 Pat 299. In AIR 1957 Pat 299, Ramaswamy, C. J. and Raj Kishore Prasad, J., have held that:-

'The rule, that when a suit is filed against the dead person, it is nullity does not apply to execution proceedings .....

Where, therefore, there has been in fact an application for execution made by the party entitled to make it, the mere fact of a mistake having been made in giving the particulars required by Order XXI, Rule 11, Clause (2), Sub-clause (i) of the Code of Civil Procedure cannot have the effect of rendering the application a nullity .....

The defect in the form of the execution application in mentioning the name of the deceased judgment-debtor in ignorance of his death, was not material, in that, it could be easily remedied under Order XXI, Rule 17 (i) of the Code.'

Hence they held that where an application for execution is made against a sole deceased judgment-debtor and the Court ordered execution of the decree thereon and issued notice under Order 21, Rule 22 the application must be held to be one in accordance with law. They have further held that an application for execution presented against a deceased judgment-debtor, though it could not be acted upon by the executing Court, is an effective step in aid of execution.

7. In Manjulabai v. Pandurang, AIR 1934 Bom 215, the Bombay High Court has followed the ruling of the Madras High Court in ILR 17 Mad 76.

8. In Balabliadra v. Radha Krishna, AIR 1956 Orissa 142, it was held following the decision in ILR 17 Mad 76, that an execution application filed against the deceased judgment-debtor, although not an application for execution in accordance with law, can be considered to be an application for a step in aid in execution. It was further held that although a suit filed against a deceased person is a nullity, an execution application filed against a deceased judgment-debtor cannot be so treated, but can be treated as a step in aid of execution within the meaning of Clause (5) of Article 182.

9. In Mt. Ram Kali v. Bir Bhadarman, AIR1934 All 463 it was held that an application for execution filed against a deceased judgment-debtor was a nullity and could not be treated either a an application for execution in accordance with law or a step in aid of execution. But in Asa Rama v. Babu Ram, AIR 1956 All 494 it was held: -

'Where an application for execution is made within limitation against a judgment-debtor who is dead on the date of such application, and an application for amendment of the said application by bringing on record the names of the legal representatives of the deceased is made after the expiry of the period of limitation and the application for amendment is allowed the application for execution shall be considered to be within limitation. If the application for amendment is not allowed then obviously the original execution application being defective it cannot be proceeded with and any fresh application would be beyond the period of limitation and the execution proceedings will have to be struck off.'

10. In Gulabsingh v. Natnu, AIR 1944 Nag 145 the view taken by the Allahabad High Court in AIR 1934 All 463 was followed. A single Judge of that Court dissented from the view taken in ILR 17 Mad 76 and came to the conclusion that an application for execution against a deceased judgment-debtor was neither an application for execution made in accordance with law nor could it be treated as an application for a step in aid of execution. In Balwant Singh v. Manak Mal, AIR 1959 Raj 91, the Rajasthan High Court also has followed the view taken in ILR 17 Mad 76.

11. In Moosa Mavulavi v. Mukthiar Cheriya Vasudevan, 35 Cochin 336 the erstwhile Cochin High Court has followed the decision in ILR 17 Mad 76. It was held after discussing the relevant ruling of the Indian High Courts that an application for transfer of a decree for execution made at a time when the judgment-debtor was dead is a valid application to take a step in aid of execution. That Court has further held that an execution petition filed against a deceased judgment-debtor was not a nullity, but was a step in aid of execution of the decree.

12. In Maula Bakhsh v. Moharnmad Ikram, AIR 1934 Lah 55 the decision in ILR 17 Mad 76 was followed.

13. No direct ruling of the erstwhile Travancore High Court relating to this question was brought to our attention. The only decision on which reliance was placed in Ouseph v. Kochu-krishna Pillai reported in 1946 Trav LR 277. As the question considered there related to a different point, we do not think it necessary to discuss the principle of that ruling.

14. We think that the preponderance of authority is in favour of the view taken in ILR 17 Mad 76. We therefore follow the principle of that decision and hold that the application for execution dated 17-7-1957 was a step in aid of execution, that the subsequent application was within time, and that the order passed by the lower Court is right.

In the result, the civil revision petition is dismissed, but in the circumstances without costs.


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