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Tripuramallu Venkatappayya and ors. Vs. Vema Venkata Subba Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Case NumberA.A.A.O. No. 93 of 1948
Judge
Reported inAIR1951Mad274; (1950)2MLJ261
ActsLimitation Act, 1908 - Sechedule - Article 182 and 182(5); Code of Civil Procedure (CPC) - Order 21, Rule 11
AppellantTripuramallu Venkatappayya and ors.
RespondentVema Venkata Subba Rao and ors.
Appellant AdvocateSuryanarayana Rao, Adv.
Respondent AdvocateG. Venkatarama Sastri, Adv.
DispositionAppeal dismissed
Cases ReferredRajah of Karvetnagar v. Venkatareddi
Excerpt:
- .....that arises for consideration is one of limitation. on 11-8-1934 the district munsif of. guntur passed a decree for money in o. s. no. 418 of 1933. the suit was dismissed by the appellate court in a. s. no. 66 of 1935 on 16-10-1935. there was a second appeal to this court (s. a. no. 117 of 1936) in which a decree for a smaller sum than that decreed by the trial court was passed on 21-4-1939. the decree holders filed e. p. no. 628 of 1041 for attachment and sale of the properties which had been given as security in order to avert an attachment before judgment prayed for by the plaintiffs. that execution petition was ordered by the district munsif; but dismissed on appeal on the ground that the security enured only for the decree that was passed by the trial court. there was a further.....
Judgment:

Viswanatha Sastri, J.

1. The judgment-debtors are the appellants in this second appeal and the question that arises for consideration is one of limitation. On 11-8-1934 the District Munsif of. Guntur passed a decree for money in O. S. No. 418 of 1933. The suit was dismissed by the appellate Court in A. S. No. 66 of 1935 on 16-10-1935. There was a second appeal to this Court (S. A. No. 117 of 1936) in which a decree for a smaller sum than that decreed by the trial Court was passed on 21-4-1939. The decree holders filed E. P. No. 628 of 1041 for attachment and sale of the properties which had been given as security in order to avert an attachment before judgment prayed for by the plaintiffs. That execution petition was ordered by the District Munsif; but dismissed on appeal on the ground that the security enured only for the decree that was passed by the trial Court. There was a further appeal to this Court in C. M. S. A, No. 137 of 1944 and this Court affirmed the decree of the appellate Court on 14-7-1945. The nest execution petition which is really material to the present case was E. P. No. 65 of 1948 filed on 19-1-194.3 for attachment of certain house property. There was no prayer in the execution petition for sale of the property sought to be attached. On 23-1-1943 the Court passed an order for attachment and after the attachment had been effected by the Amin, the executing petition came on for orders before the Court on 16-2-1943. The Court after recording the fact that the attachment had been effected struck off E. P. No. 66 of 1943. Execution petition No. 143 of 1946 from which this civil miscellaneous second appeal has arisen was filed on 16-2-1946 and the judgment debtors raised the objection that the execution petition was barred by limitation under Article 182, Limitation Act, The question, therefore, is whether the order dated 16-2-1943 passed on E. P. No. 65 of 1943 would serve to save limitation under Article 182 (6), Limitation Act.

2. I am of the opinion that the order is effective to save limitation for B. P. No. 143 of 1946. I am unable to accept Mr. Sundaram's contention that E. P. no. 65 of 1943 must be deemed to have been disposed of on 23-1-1943 when the Court ordered attachment. The mere order for attachment does not satisfy a decrae-holder. The property must be actually attached and the attachment must be formally recorded by the Court by an order in the execution petition. This was done on 18-3-1943. The mere fact that a prayer asked for in an execution petition has been granted does not automatically involve a dismissal of the execution petition. There must be a judicial order dismissing the Execution Petition, see Rajah of Karvetnagar v. Venkatareddi, 39 Mad, 570: A. I. R. 1916 Mad. 20. That order was passed in the present case on 16-2-1943. Therefore, the present execution petition is in time.

3. With reference to Mr. Sundera's further contention that E. P. No. 65 of 1943 was not an application in accordance with law, it must be observed that the execution petition was filed and numbered by the Court as a proper execution petition and the prayer for attachment was a legitimate mode of execution. The omission of a prayer for sale is not fatal, for there may be cases where & sale of the property attacked could not be ordered, Even if R. P. No. 65 of 1943 did not satisfy the requirements of Order 21, Rule 11, Civil P. C., still, it could be considered as an application to take a step-in-aid of execution and the order passed on 16-2-1943 can be considered as a final order passed on such application. For these reasons, I hold that E. P. No. 143 of 1946 was in time and that the decision of the Courts below is correct.

4. The civil miscellaneous second appeal is dismissed with costs.

5. (No leave).


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