Skip to content


N.A. Subramonia Chetty Bros. Vs. A.S.P. Subbayya Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 544 of 1962
Judge
Reported inAIR1967Ker111
ActsLimitation Act, 1908 - Schedule - Article 182; Code of Civil Procedure (CPC) , 1908 - Order 13, Rule 10
AppellantN.A. Subramonia Chetty Bros.
RespondentA.S.P. Subbayya Pillai and anr.
Appellant Advocate D.A. Krishna Warrier, Adv.
Respondent Advocate S. Easwara Iyer,; L. Gopalakrishnan Potti and; P.N. Raja
DispositionAppeal allowed
Cases ReferredMaruti Bansi v. Nanjappa Chetty
Excerpt:
- .....prayer in e. a. 1359 filed in the munsiff's court, coimbatore, was to retransfer the decree to the trivandrum munsiff's court for execution with the certificate of non-satisfaction. in view of this, the application is one in aid of execution. the contention of the learned advocate for the respondent is that in view of the prayer in ext. p-2 'to send for the decree copy which is at present in the trivandrum court under order 13, rule 10, code of civil procedure', ext. p-2 is a purposeless application and cannot be considered as one in aid of execution. this contention cannot be accepted. the main prayer in ext. p-2 is to send the decree for execution to the munsiff's court, trivandrum, with the certificate and the other prayer being only under order 13, rule 10, does not affect or qualify.....
Judgment:

Krishnamoorthy Iyer, J.

1. In this appeal filed by the decree-holder the only question is whether the Execution Petition No. 1612 of 1960 filed on 5-12-1960 is barred by limitation.

2. The facts necessary for the disposal of the second appeal are stated below. A simple money decree was passed by the Munsiff's Court, Coimbatore, on 18-6-1953. The decree was transferred for execution to the Munsiff's Court, Trivandrum, where execution petition No. 1419 of 1956 was filed. The said E. P. was dismissed on 10-7-1957. Subsequently the decree-holder filed E. P. 1612 of 1960 in the Munsiff's Court, Trivandrum, on 5-12-1960. It was contended by the decree-holder that the said E. P. was filed within three years of E. A. 1359 of 1959 filed on 19-6-1959 in the Munsiff's Court, Coimbatore, which is an application for a step-in-aid of execution within the meaning of Article 182, Clause (5) of the Limitation Act and therefore E. P. 1612 of 1960 is within time. The judgment-debtor contended that E. A. 1359 of 1959 is not an application for a step-in-aid of execution and therefore E. P. 1612 of 1960 is barred by limitation, as it was filed beyond three years from the dismissal of E. P. 1419 of 1956.'

3. The only question to be decided in the appeal is whether E. A. 1359 of 1959 is an application to take some step-in-aid of execution. E. A. 1359 of 1959 filed in the Munsiff's Court, Coimbatore, containing the order thereon is marked here Ext. P-2. The lower appellate Court was of the view that Ext. P-2 is not an application to take some step-in-aid of execution as it thought that Ext. P-2 was a purposeless application. The prayer in E. A. 1359 filed in the Munsiff's Court, Coimbatore, was to retransfer the decree to the Trivandrum Munsiff's Court for execution with the certificate of non-satisfaction. In view of this, the application is one in aid of execution. The contention of the learned advocate for the respondent is that in view of the prayer in Ext. P-2 'to send for the decree copy which is at present in the Trivandrum Court under Order 13, Rule 10, Code of Civil Procedure', Ext. P-2 is a purposeless application and cannot be considered as one in aid of execution. This contention cannot be accepted. The main prayer in Ext. P-2 is to send the decree for execution to the Munsiff's Court, Trivandrum, with the certificate and the other prayer being only under Order 13, Rule 10, does not affect or qualify the substance or effectiveness of the main prayer. In this view the decision in Maruti Bansi v. Nanjappa Chetty, AIR 1942 Nag 63 cited by the respondents' advocate cannot apply to the facts of this case. It has therefore to be held that E. A. 1359 is an application in aid of execution and E. P. 1612 of 1960 having been filed within three years of the order passed on that application it is within time.

4. In the result, the judgment and decree of the learned District Judge are set aside and the second appeal is allowed restoring thedecision of the Munsiff. Since Ext. P-2 application was only produced in this Court, theparties will bear their costs in this Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //