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Srila Sri Subramania Desika Gnanasambanda Pandara Sannadhi (Deceased) and anr. Srila Sri Shanmuga Desika Gnana Pandarasannadhi, Legal Representative Vs. Rangaswami Chettiar - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1935Mad161; 155Ind.Cas.327; (1935)68MLJ261
AppellantSrila Sri Subramania Desika Gnanasambanda Pandara Sannadhi (Deceased) and anr. Srila Sri Shanmuga De
RespondentRangaswami Chettiar
Cases ReferredSheogobind Ram v. Mt. Kishunbasi Kuer I.L.R.
Excerpt:
- - 1. the execution proceedings in this case have had a curious and interesting history......as the debtor's representative. the present petition is the sixth one filed against the same wrong representative; but the plaintiff amended it after the expiry of the 12 year period prescribed by section 48, civil procedure code by bringing the right representative on the record. the lower court's finding, which is not contested, is that the plaintiff throughout acted bona fide.2. on these facts, three questions arise:(1) are the first four petitions against the dead judgment-debtor steps-in-aid of execution within article 182 (5) of the limitation act?.(2) is the fifth petition against the wrong representative a step-in-aid of execution?(3) does the amendment of the sixth (i.e., the present) petition, beyond the period provided by the law, relate back to the date when it was.....
Judgment:

Venkatasubba Rao, J.

1. The execution proceedings in this case have had a curious and interesting history. The defendant died soon after the passing of the decree. Ignorant of this fact, the plaintiff filed the first four execution petitions against the dead judgment-debtor. The fifth petition he filed, bringing a wrong person on the record as the debtor's representative. The present petition is the sixth one filed against the same wrong representative; but the plaintiff amended it after the expiry of the 12 year period prescribed by Section 48, Civil Procedure Code by bringing the right representative on the record. The lower Court's finding, which is not contested, is that the plaintiff throughout acted bona fide.

2. On these facts, three questions arise:

(1) Are the first four petitions against the dead judgment-debtor steps-in-aid of execution within Article 182 (5) of the Limitation Act?.

(2) Is the fifth petition against the wrong representative a step-in-aid of execution?

(3) Does the amendment of the sixth (i.e., the present) petition, beyond the period provided by the law, relate back to the date when it was originally presented?

3. The first point. - There is a preponderance of authority in favour of the view that, when owing to a bona fide error the execution petition names the deceased judgment-debtor as the person against whom execution is sought, it is sufficient to save limitation. In Samia Pillai v. Chockalinga Chettiar I.L.R.(1893) 17 Mad. 76 : 4 M.L.J. 8 a Bench of this Court came to that conclusion. In Bipin Behari Mitter v. Bibi Zohra I.L.R.(1908) 35 Cal. 1047 the learned judges, dissenting from Madho Prasad v. Kesho Prasad I.L.R.(1897) 19 All. 337 and following Samia Pillai v. Chockalinga Chettiar I.L.R.(1893) 17 Mad. 76 : 4 M.L.J. 8 held that an execution application filed bona fide against a dead person, though it cannot be acted upon,-is nevertheless a step-in-aid of execution which has the effect of saving the decree from being barred. The Patna High Court in Sheogobind Ram v. Mt. Kishunbasi Kuer I.L.R. (1932) 11 Pat. 546 and the Lahore High Court in Maula Baksh v. Mohammad Ikram A.I.R. 1934 Lah. 55 took the same view. In two recent Madras cases, although the point did not directly arise, Samia Pillai v. Chockalinga Chettiar (1893) 17 Mad. 76 : 4 M.L.J. 8 was cited with approval: Parakkat Devaswom v. Venkatachalam Vadyar (1925) 50 M.L.J. 153 and Jagannadha Rao v. Narayanamurthy A.I.R. 1933 Mad. 696. But in unreported decision in C.M.A. No. 185 of 1902 a Bench of this Court, without discussing the point or considering the authorities, took the opposite view and Wallace, J. in Parakkat Devaswom v. Venkatachallam Vadhyar (1925) 50 M.L.J. 153 has rightly, in my opinion, refused to follow it. I therefore hold that the first four execution petitions, each of them filed within the time prescribed by the law, though they were not such as they themselves could be acted upon, had nevertheless the effect of saving the decree from becoming barred.

4. The second points - Where a petition for execution was filed bona fide against a wrong legal representative of the judgment-debtor, it was held that in spite of the mistake, it would still be an application to take a step-in-aid of the execution. Balkishendas v. Bedmati Koer I.L.R. (1892) 20 Cal. 388 . This decision was referred to with approval in Bipin Behari Mitter v. Bibi Zohra I.L.R. (1908) 35 Cal. 1047 already mentioned. The same view is taken in, Ramasawmi Chettiar v. Oppilamani Chetti I.L.R. (1909) 33 Mad. 6 : 19 M.L.J. 671 Mt. Begum Bibi v. Bulaqi Shah & Sons A.I.R. 1925 Lah. 34, Hari Mahadev v. Vishnu Balkrishna A.I.R. 1931 Bom. 425 (1). I therefore hold that the fifth execution petition filed in time, although against a wrong representative, has the effect of keeping the decree alive.

5. The third point. - An amendment made under Sub-clause (1) of Order 21, Rule 17, Civil Procedure Code with the sanction of the Court, relates back to the original presentation of the petition;, that is the effect of Sub-clause (2).

6. In Vemuri Pitchayya v. Raja Yarlagadda Ankineedu : (1923)45MLJ651 an application for execution was presented within the 12 years-allowed by Section 48 of the Code, but no schedule of immovable property belonging to the judgment-debtor was attached to it. The defect was later remedied under an order of Court but at a time when the 12 years had expired. The learned judges held, dissenting from the view of the Calcutta High Court,, that the amendment related back to the date of the original petition. Sankaran Nair v. Ambu : (1925)49MLJ699 is not an authority to the contrary; the case merely decided that where the lower Court declined to pass a remedial order under Order 21, Rule 17(1), there was no refusal of jurisdiction and the High Court was not bound to interfere in revision. The case more in point is Manakkal Mahaswaram Numbudripad v. Velappa Menon : (1928)54MLJ154 . There, in the original petition the name of the wrong representative was given. The Court allowed the amendment and the correct name was substituted more than 12 years after the passing of the decree. The amendment was held to relate back to the original presentation. In Venkata Lakshmamma v. Seshagiri Rao (1930) 60 M.L.J. 628 the plaintiff obtained a decree against one R on 29th February, 1912. The execution petition in question was filed on 18th February, 1924, against the debtor who, the judgment states, must be presumed to have died by then. On 5th July, 1924, an application was made to permit the substitution, in the place of the deceased debtor, of his widow and the amendment was allowed. The execution petition was treated as being in time by the learned judges (see pp. 637 and 647).

7. The view of the Patna High Court is in conformity with these decisions; Sheogobind Ram v. Mt. Kishunbasi Kuer I.L.R. (1932) 11 pat. 546. I therefore hold that the amendment takes effect from the date of the original presentation and that the execution petition in question is not barred by time.

8. The lower Court's order is accordingly confirmed and the Civil Revision Petition is dismissed with costs.


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