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Kotta Annapurnamma Vs. Makku Venkamma - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1938Mad323; (1938)1MLJ135
AppellantKotta Annapurnamma
RespondentMakku Venkamma
Cases ReferredIn Saminatha Asari v. Gopalakrishna Aiyangar
Excerpt:
- - as all the properties of the late subbaraju as well as the decree in this suit passed to this counter-petitioner, it is necessary that this counter-petitioner should be added as the second plaintiff and that this decree should be executed. 7. some question was raised in the courts below as well as before the learned judge of this court, as to whether there was or was not a step-in-aid of execution......in the mortgage suit in question on 9th september, 1926, and the present petition was filed by his widow annapurnamma on 23rd december, 1931, for execution of that decree. it is contended that this execution petition is in time, by reason of a previous petition for execution filed on 15th october, 1928, which was dismissed by an order, dated 15th april, 1929. the short point for decision is, whether the previous execution petition fulfills the requirements of article 182(5), for, if it does, the present petition, having been filed as it has been, within three years of the order referred to above made upon it, would be saved from the bar of limitation.3. the previous petition was filed not by annapurnamma, the widow of the decree-holder, but by his nephew one karumuri subba rao. this man,.....
Judgment:

Venkatasubba Rao, J.

1. The question in this Letters Patent Appeal is, whether the view of the learned Judge that the execution petition in question is barred by limitation, is right. The lower Court had decided that the petition was in time and that decision was reversed by the learned Judge. The starting point under Article 182(5) of the Limitation Act is:

The date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step in aid of the execution of the decree.

2. One Subbaraju obtained the final decree in the mortgage suit in question on 9th September, 1926, and the present petition was filed by his widow Annapurnamma on 23rd December, 1931, for execution of that decree. It is contended that this execution petition is in time, by reason of a previous petition for execution filed on 15th October, 1928, which was dismissed by an order, dated 15th April, 1929. The short point for decision is, whether the previous execution petition fulfills the requirements of Article 182(5), for, if it does, the present petition, having been filed as it has been, within three years of the order referred to above made upon it, would be saved from the bar of limitation.

3. The previous petition was filed not by Annapurnamma, the widow of the decree-holder, but by his nephew one Karumuri Subba Rao. This man, alleging that the decree amount belonged jointly to his uncle and himself, filed the petition, praying that both he and Annapurnamma should be brought on the record as the decree-holder's representatives, and, that the decree should be executed for their joint benefit. Annapurnamma by way of answer filed a counter-affidavit, denying that the applicant possessed any sort of interest in the decree. It is upon a proper construction of this counter-affidavit that the decision in this appeal must turn.

4. True, as urged ,by Mr. Somasundaram for the respondent, the widow prayed in the last paragraph of this affidavit, that Subba Rao's petition should be dismissed. If the matter had stopped there, there would be nothing to urge in favour of the appellant. But the widow was not content with asking that the petition should be dismissed; she did something more, that is to say, she requested that she should be brought on the record as the sole representative and that the decree should be executed for her sole benefit. Here we may quote her actual words:

As all the properties of the late Subbaraju as well as the decree in this suit passed to this counter-petitioner, it is necessary that this counter-petitioner should be added as the second plaintiff and that this decree should be executed.

5. In effect, what she requested was, that upon the nephew's petition praying that both he and Annapurnamma should be added as the deceased's representatives, an order should be made substituting her alone as the sole representative. In other words, she adopted the nephew's petition in part and repudiated it in part, and the proper interpretation of what happened is in our opinion this: - The widow must be taken to have said to the Court:

Here is the nephew's application which is in writing as required by the Code and is otherwise in conformity with the law. Take that application as mine and instead of bringing on record, as the nephew requests, both of us, substitute me alone as the legal representative. In that sense I am willing to treat the application as my own.

6. We see no reason why this construction of what happened at the time should not be adopted, and if that is done, the present petition would be in time.

7. Some question was raised in the Courts below as well as before the learned Judge of this Court, as to whether there was or was not a step-in-aid of execution. In the view we have taken, no such question can arise. The point is not, whether there was a step-in-aid of execution, but whether the previous execution petition could or could not be deemed in law as that of Annapurnamma. Our answer is decisively in the affirmative. The provisions of Article 182, it has been held, should receive a fair and not too technical a construction (Mitra on Limitation, VI Edition, page 2048). Its language ought not to be strained in favour of the judgment-debtor who has not paid his debt and the words should be liberally interpreted in favour of the decree-holder (Ibid., p, 2075).

8. The cases cited by Mr. Somasundaram are easily distinguishable. In Saramma v. Seshayya I.L.R. (1905) Mad. 396 the application was made by the mother, although the person rightly entitled was the major son and as the judgment takes care to point out:

There is nothing to show that he constituted her as his agent for the purpose of making the application.

9. In Saminatha Asari v. Gopalakrishna Aiyangar (1916) 4 L.W. 291 again, the widow, made the application setting up the title as against the adopted son, who, it is not suggested, either ratified or adopted her act.

10. In the result, the appeal is allowed and the decision of the Subordinate Judge is restored. Each party will bear his or her costs throughout.


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