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Kosuri Gopalarayadu Vs. Adusumilli Gopalakrishnayya and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1945Mad325; (1945)1MLJ284
AppellantKosuri Gopalarayadu
RespondentAdusumilli Gopalakrishnayya and anr.
Cases ReferredIn Sundararama Reddi v. Pattabhirami Reddi
Excerpt:
- - in the absence of any statutory liability the decree-holder cannot be charged with any consequences on account of the failure on the part of the appellant to get himself shown in the records as a major......proceedings were taken in 1928 and the proceedings taken as if he was a minor would invalidate the proceedings and that, therefore, the notice and the order subsequently passed would not amount to a valid revivor so as to affect him. reliance is placed for this position on the decision in krishnaswami lyengar v. soorikutti qanapathi ayyar (1921) 14 l.w. 638. what was decided in that case was that the non-service of the notice on a judgment-debtor under order 21, rule 22 of the code after he became a major was a serious irregularity sufficient to set aside a sale in execution proceedings unless it be shown that the interests of the judgment-debtor had to his knowledge been fully represented and protected by some other party in execution proceedings. but this does not amount to a.....
Judgment:

Kuppuswami Ayyar, J.

1. The appellant was the sixth respondent judgment-debtor under the decree of the Privy Council in Privy Council Case No. 55 of 1916 and the appeal arises out of the objection raised by him that E.P. No. 174 of 1936 filed in the District Munsiff's Court, Gudivada, in execution of that decree is barred by limitation. The decree of the Privy Council was passed on 5th July, 1918. It was a decree for costs against various persons one of whom was the present appellant who was at the time of the institution of the suit a minor represented by his guardian, his natural father. The petition was filed on 17th June, 1936, that is more than 12 years after the date of the decree. But what was stated was that there was a revivor by the proceedings in E.P. No. 194 of 1928 filed within 12 years from the date of the decree. It is stated that the appellant was made a party to those proceedings and execution was sought to be had as against him, that notice was sent to him represented by his father as guardian, that he was served with notice and after notice was served on the guardian an order for sale of the properties attached was passed within 12 years from the date of the decree and that consequently this petition filed within 12 years from the date of that order on the execution petition directing' the sale is not barred by limitation. It is stated that the Article that governs the proceedings is Article 183 and as there was a revivor within 12 years from the date of the decree and within 12 years prior to the date of the application the petition is not barred by limitation. Both the lower Courts have held against the appellant and found that the petition was in time.

2. The prior execution petition with the orders thereon is marked as Ex. P-6 and column 10 of that petition shows that the decree was sought to be executed against the immovable property of the defendants and against defendants 5 and 7 personally. In the next column it is stated that the decree-holders prayed for an order directing the attachment of the immovable property belonging to the defendants and described in the schedule and there was also a prayer for the arrest of the defendants 5 and 7. Their prayer was for simultaneous arrest, attachment and for notice under Order 21, Rules 22, 54 and 38 of the Code of Civil Procedure. On 4th April, 1928, the Court accordingly ordered attachment and arrest, and issue of notice. The appellant was served on his father as guardian. The order for sate was passed on 18th April, 1929, after the attachment was effected. Therefore, this is a case in which there was not only notice issued to the appellant but was followed subsequently by an order in execution which will indicate that the Court passed an order holding that the decree was available for execution as against the appellant.

It is contended for the appellant that there could be a revivor only in respect of those persons against whom the decree was to be enforced. This is not disputed. As a matter of fact, the records show that notice was taken to the appellant through his guardian as he was then shown on the records only as a minor represented by guardian, that execution was sought as against his properties also and that an order was passed directing the sale of the properties, None of the rulings cited for the appellants has any bearing on this case. In Maclaren v. Veeriah Naidu I.L.R. (1915)Mad. 1102, it was stated by this Court what amounted to a revivor. The revivor as pointed out therein was an order in execution against a particular person consequent upon a notice. (Vide also the decision in Monohardas v. Futteh Chand I.L.R.(1903)Cal. 979 and Amulya v. Banku Behari (1924) 41 Cal. L.J. 159). There is no evidence to show that the property which was sought to be attached as the property of the appellant was not his property and my attention Was not drawn to any record to indicate that it was denied in the lower Courts that the property sought to be proceeded against in 1928 was the property of the appellant.

3. What is next urged is that the appellant was really a major at the time when the execution proceedings were taken in 1928 and the proceedings taken as if he was a minor would invalidate the proceedings and that, therefore, the notice and the order subsequently passed would not amount to a valid revivor so as to affect him. Reliance is placed for this position on the decision in Krishnaswami lyengar v. Soorikutti Qanapathi Ayyar (1921) 14 L.W. 638. What was decided in that case was that the non-service of the notice on a judgment-debtor under Order 21, Rule 22 of the Code after he became a major was a serious irregularity sufficient to set aside a sale in execution proceedings unless it be shown that the interests of the judgment-debtor had to his knowledge been fully represented and protected by some other party in execution proceedings. But this does not amount to a decision that such proceedings were without jurisdiction and were a nullity. The question was considered by a Bench of this Court in Seshagiri Rao v. Hanumantha Rao I.L.R.(1915) Mad.1031 and it was held that a decree obtained against a person treating him as a minor when in reality he was a major on that date was hot a nullity and that consequently the sale in execution of such a decree cannot be set aside on the ground that the Court had no jurisdiction to pass a decree. In Sundararama Reddi v. Pattabhirami Reddi (1917)6 L.W. 272, it was pointed out that there is no provision in the Code which requires the plaintiff to issue a fresh summons to a minor defendant after he attains majority and Sadasiva Ayyar, J., further observed at page 276:

On the contrary, the analogy of Order 32, Rule 12 (which relates to a minor plaintiff attaining majority) shows that it is for the minor defendant attaining majority to elect to proceed with or abandon the defence, and after he so notifies his election the title of the suit may have to be changed.

4. In this case the appellant was admittedly a minor on the date of the decree. If in further proceedings he does not move the Court to have him declared as a major and continued to be represented by his father as his guardian it is he that took the risk of not having notice except through his father and there is nothing to indicate that the father and the petitioner were on inimical terms so that it may be inferred that he may not have received information about the proceedings. It is true that the plaintiff decree-holder himself should have known from the records that he must have become a major in 1928 but then the Code does riot impose on him any duty to see that the records are corrected by showing him as a major. In the absence of any statutory liability the decree-holder cannot be charged with any consequences on account of the failure on the part of the appellant to get himself shown in the records as a major. If the proceedings are not illegal in the sense that the Court had no jurisdiction to pass the order, the executing Court indicating that the decree was still alive and was capable of being executed is enough to revive the decree and give a fresh starting point of limitation.

5. It is next urged before me that apart from this revivor there was a payment of Rs. 1,000 by the seventh defendant within time which furnishes a fresh starting point of limitation; but this point does not appear to have been urged before the lower Courts and I do not think I will be justified in going into that point for we do not know whether it was admitted or not, or whether the payment was true. If the payment was true and if it was relied on as saving limitation I do not think I will be justified in second appeal in deciding this appeal on the basis that the payment was true and as furnishing a fresh starting point of limitation.

6. In the result, the appeal fails and is dismissed with costs.

7. Leave is refused.


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