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Manda Venkayya Vs. Margeni Pitchayya and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Case NumberA.A.A.O. No. 168 of 1947
Judge
Reported inAIR1951Mad391; (1950)IIMLJ629
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 17
AppellantManda Venkayya
RespondentMargeni Pitchayya and anr.
Advocates:M.S. Ramachandra Rao
DispositionAppeal allowed
Excerpt:
- - , when it was returned for rectification in another respect, adding further reliefs, like arrest of the judgment-debtors, attachment and sale of their moveable, etc. this addition was clearly time barred and was rightly objected to by the judgment-debtors, and rejected by the lower appellate court. like a promissory note with a material alteration on it......returned for rectification in another respect, adding further reliefs, like arrest of the judgment-debtors, attachment and sale of their moveable, etc. this addition was clearly time barred and was rightly objected to by the judgment-debtors, and rejected by the lower appellate court. but, in doing this, the lower appellate court also held, the original prayer for attachment and sale of the immoveables also to be barred because of this material alteration, and directed the e. p. to be dismissed in toto with costs throughout. this, of course, was wrong. an addition of reliefs, after limitation, to an e. p. containing a prayer for attachment and sale of immoveables will not vitiate and invalidate the entire e. p. like a promissory note with a material alteration on it. only the added.....
Judgment:

Panchapakesa Ayyar, J.

1. I have perused the entire records and heard the learned counsel for the appellant (decree-holder). The respondents (judgment-debtors) are absent and are unrepresented by any counsel. The point is simple. The appellant had filed E. P. No. 65 of 1944 in S. C. No. 535 of 1931 Sub-Court, Masulipatam, on 17-12-1943 within 12 years of the decree dated 6-2-1982, and within three years of the amended decree dated 18-12-1940 for attachment and sale of the immovable properties of the judgment-debtors. So that E. P. was in time. But he had, on 22-3-1944, after limitation had operated, added on a slip, pasted to the E. P., when it was returned for rectification in another respect, adding further reliefs, like arrest of the judgment-debtors, attachment and sale of their moveable, etc. This addition was clearly time barred and was rightly objected to by the judgment-debtors, and rejected by the lower appellate Court. But, in doing this, the lower appellate Court also held, the original prayer for attachment and sale of the immoveables also to be barred because of this material alteration, and directed the E. P. to be dismissed in toto with costs throughout. This, of course, was wrong. An addition of reliefs, after limitation, to an E. P. containing a prayer for attachment and sale of immoveables will not vitiate and invalidate the entire E. P. like a promissory note with a material alteration on it. Only the added reliefs will be deleted. It is not as if the appellant tried to alter the original relief by making it indecipherable and engrossing the new reliefs on it, as if they were the original reliefs prayed for, in which case he might have been asked to answer for his attempted fraud on the Court, and possibly also denied all relief in his tampered-with E. P. So, I modify the lower appellate Court's order and restore the E. P. to file so far as the original relief for attachment and sale of the immoveable property is concerned, and direct the Sub-Court, Maaulipatam, to proceed with it to that extent. In the circumstances, I direct the parties to bear their own costs in the appeal and C. M. S. A.

2. Leave refused.


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