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Meenakshiammal Vs. K.G. Krishnaswami Iyer and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 1228 to 1230 of 1948
Judge
Reported inAIR1952Mad90; (1951)2MLJ163
ActsLimitation Act, 1908 - Schedule - Article 182(5); Code of Civil Procedure (CPC) , 1908 - Order 21, Rules 11 and 16
AppellantMeenakshiammal
RespondentK.G. Krishnaswami Iyer and ors.
Appellant AdvocateT.S. Vaidhyanatha Iyer, Adv.
Respondent AdvocateB. Lakshminarayana, Adv. as Amicus Curiae
DispositionRevision petitions allowed
Cases ReferredAbdul Salam v. Veerabadra Raju
Excerpt:
.....as the failure to file an assignment deed in favour of the .assignee decree-holder along with the execution application would give rise to a great deal of fraud, an application not accompanied by an assign-ment deed should not be considered to be one in accordance with law. 6. it has been held in a number of cases that failure to furnish a copy of the decree would not make an execution petition one not in accordance with law. 815 where it was held that failure to furnish certain particulars not required under order 21, rule 11, though they may be necessary to make an effective execution petition, could not render an application a defective one so as to make it one not in accordance with law, following the earlier decision in 'venkatarama sastri v. venbatanarasimham',air1938mad144..........receiver assigned these decrees to her by a document. thereafter the assignee-decree-holder filed applications for recognition of the assignment and for transmission of the decrees to the court of the district munsif of devakottah for execution. as the execution petitions were not accompanied by the assignment deeds and as the dates of the transfer of the decrees in favour of the petitioner were not mentioned in the execution petitions they were dismissed in december 1944. within three years of this dismissal the present execution petitions, which 'have givenrise to these revision pettions, were :filed bythe assignee decree-holder.3. the district munsif dismissed these applications being of opinion that the applications filed in 1944 did not serve as steps-in-aid of execution as.....
Judgment:

Chandra Reddi, J.

1. These three revision petitions raise the same question relating to limitation and the petitioner is the same in all the three petitions. They arise out of the three execution petitions filed by the petitioner in S. C. Nos. 1926 of 1937,899 of 1938 and 900 of 1938 on the file of the District Munsif's Court of Madhurai. They were dismissed by the trial Court as being barred by limitation under the following circumstances.

2. These execution petitions were filed by the present petitioner as an assignee of the decrees obtained by one K. G. Krishnaswami Iyer. The original decree-holder was adjudged an insolvent in I. P. No. 20 of 1943 and all his properties became vested in the Official Receiver of Madhurai. In the course of the administration of the estate the Official Receiver sold the properties in a public auction and they were purchased by the present petitioner. Subsequently the Official Receiver assigned these decrees to her by a document. Thereafter the assignee-decree-holder filed applications for recognition of the assignment and for transmission of the decrees to the Court of the District Munsif of Devakottah for execution. As the execution petitions were not accompanied by the assignment deeds and as the dates of the transfer of the decrees in favour of the petitioner were not mentioned in the execution petitions they were dismissed in December 1944. Within three years of this dismissal the present execution petitions, which 'have givenrise to these revision pettions, were :filed bythe assignee decree-holder.

3. The District Munsif dismissed these applications being of opinion that the applications filed in 1944 did not serve as steps-in-aid of execution as the latter, according to him were not in accordance with law within the meaning of Article 182 (5) of the Limitation Act and therefore could not keep the decrees alive. The aggrieved assignee .-decree-holder has filed the present revision petitions against, those orders.

4. The question, therefore, to be considered in these revision petitions is whether the view of the trial Court that the execution petitions filed in 1944 were not in accordance with law is correct or not. The chief ground of decision of the lower Court is as the failure to file an assignment deed in favour of the . assignee decree-holder along with the execution application would give rise to a great deal of fraud, an application not accompanied by an assign-ment deed should not be considered to be one in accordance with law. I am not able to see how such an execution petition can give rise to any fraud. It appears to me that the difficult ties envisaged by the trial Court are not real. The assignment of a decree can be recognised only after giving notice to the decree-holder under Order 21, Rule 16, Civil P. C., and it is only when it is satisfactorily established that the assignment was as a matter of fact made by the original decree-holder that it is recognised by the Court.

5. Further the omission to file the assignment deed would not amount to such a defect as to render the E. P. not one in' accordance with law because the filing of an assignment deed along with an execution application is not required under Order 21 Rule 11. It is only when the statutory provisions of Order 21 Rule 11 are disregarded it may be said that the execu-tion petition is not one in accordance with law. Therefore although the application was riot accompanied by an assignment deed, the execution petitions filed in 1944 would still come under Article 182 (5) of the Limitation Act if the other relevant provisions of law were complied with.

6. It has been held in a number of cases that failure to furnish a copy of the decree would not make an execution petition one not in accordance with law. In 'Arunachala Reddiar v. Muthusadasiva Mudaliar'. 62 M L W. 804 it has been laid down by a Bench of this Court that an execution petition filed without a copy of the decree cannot be considered to be one not in accordance with law within the meaning of Article 182 (5) of the Limitation Act, even though Rule 142 of the Civil Rules of Practice does require that the execution petition should be accompanied by a certified copy of the decree. I may also refer to another decision of the Bench of this Court in 'Seetharama Chettiar v. Muthukrishna Chettiar' 60 M.L.W. 815 where it was held that failure to furnish certain particulars not required under Order 21, Rule 11, though they may be necessary to make an effective execution petition, could not render an application a defective one so as to make it one not in accordance with law, following the earlier decision in 'Venkatarama Sastri v. Venbatanarasimham', : AIR1938Mad144 . Applying the principle underlying these decisions it must be held that failure to furnish a copy of the assignment deed does not render an execution application one not in accordance with law. Hence an execution petition even if not accompanied by an assignment deed, saves limitation as being a step-in-aid of the execution of the decree.

7. Another reason for which the execution petitions were dismissed in 1944 was the failure of the assignee. decree-holder to mention the date of the transfer in her name. Order 21, Rule 11 (ff) requires that the date of the transfer must be mentioned in the execution application. It follows that the non-compliance with the requirements of Order 21 Rule 11 (ff) amounts to a defect. But the question to be considered is whether the defect is one which would not make the application filed in 1944 a step-in-aid of execution. Though non-compliance with the requirements of Order 21 Rule 11 would make the execution application not one in accordance with law yet jf there is substantial compliance with the requirements of that provision of law, it would serve as a legal and proper execution petition. The mere failure to furnish one or two particulars would not take it out of the scope of Article 182 (5) of the Limitation Act.

8. In 'Rama v. Varada' 16 Mad 142 it was laid down that in spite of the defect in the previous application in omitting to state the earlier of the two previous applications and its result, the preceding application would still serve as a step-in-aid of the execution and as such, it would an application in accordance with law. The same principle is recognised 'Ramanandan v. Periathambi' 6 Mad 250. In 'Abdul Salam v. Veerabadra Raju' 52 Mad 760 the question arose whether in spite of the omission to furnish certain particulars as required under Order 21 Rule 11, the execution petition could be considered to be valid one for purposes of claiming rateables under Section 73, Civil Procedure Code. It was laid down by the Full Bench that despite the failure of the decree-holder to mention some of the particulars necessary under Order 21 Rule 11, Civil P. C. for a formal execution application, it was sufficiently an application within the meaning of Section 73, C. P. C.

9. On these authorities, I must hold that when there is substantial compliance with the requirements of the provisions of Order 21 Rule 11 C. P. C. the previous execution application will serve as a step-in-aid of execution under Article 182 (5) of the Limitation Act. It therefore follows that the present execution applications filed by the assignee-decree-holder within 3 years of the dismissal of the previous execution petitions are in time and the orders of the trial Court dismissing these execution petitions as being barred by limitation are erroneous and ought to be set aside.

10. The execution petitions will be restoredto file and will be disposed of by the trial Courtaccording to law. In the result the civil revision petitions are allowed but I make no orderas to costs.


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