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Santhappa and ors. Vs. Siddalingayya Eswarappa Bulla, Minor by Next Friend and Mother Sangavva and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1939Mad378; (1939)1MLJ827
AppellantSanthappa and ors.
RespondentSiddalingayya Eswarappa Bulla, Minor by Next Friend and Mother Sangavva and ors.
Cases ReferredLtd. v. Perumal
Excerpt:
- - for these reasons we are clearly of opinion that the execution petitions presented to the additional subordinate judge of dharwar on the 6th april, 1933, were applications made to the proper court in accordance with law. we think that these are clearly personal decrees and that they impose a personal liability in case the properties do not realise the amounts due under the decrees......requested that the decrees might be transmitted for execution to 'the first class subordinate judge, bellary. on the 6th april, 1933, there was no sub-court in existence in the district of bellary, and the contention on behalf of the appellants therefore is that the applications having been made f for transmission to a court which did not exist cannot be said | to have been made in accordance with law. in support of this contention we have been referred to the rulings in sital prasad shukul v. babu lal shukul i.l.r.(1932) 11 pat. 785 amrit lal v. murlidhar i.l.r.(1922) 1 pat. 651 maharaja of bobbili v. narasaraju bahadur and peirce leslie & co., ltd. v. perumal : air1918mad580 . we do not think that any of these decisions has any bearing upon this case because in all of them the.....
Judgment:

Burn, J.

1. These are appeals from the orders of the learned District Judge of Bellary passed on two execution petitions. The principal objection raised on behalf of the judgment-debtor's was that the execution petitions were barfed by limitation-They contended also that the decree-holder had applied for the attachment of property which by the terms of the decrees he was not entitled to attach and sell. The decrees in the suits were passed on the 10th March, 1927. These execution petitions were filed on the 5th April, 1936. Prima facie, they are barred by limitation. But the decree-holder relies upon two earlier applications which he made on the 6th April, 1933, to the Court of the Additional First Class Sub-Judge, Dharwar (the Court which passed the decrees) for transmission of the decrees to Bellary for execution. It is admitted that if these applications of the 6th April, 1933, were applications made to the proper Court, and in accordance with law, the applications put in on the 5th April, 1936, are not barred by limitation. It is common ground that the applications of 6th April, 1933, were made to the proper Court. The only ground upon which they are said to have been made not in accordance with law is that in applying to the Additional First Class Sub-Judge, Dharwar, the decree-holder requested that the decrees might be transmitted for execution to 'the First Class Subordinate Judge, Bellary. On the 6th April, 1933, there was no Sub-Court in existence in the District of Bellary, and the contention on behalf of the appellants therefore is that the applications having been made f for transmission to a Court which did not exist cannot be said | to have been made in accordance with law. In support of this contention we have been referred to the rulings in Sital Prasad Shukul v. Babu Lal Shukul I.L.R.(1932) 11 Pat. 785 Amrit Lal v. Murlidhar I.L.R.(1922) 1 Pat. 651 Maharaja of Bobbili v. Narasaraju Bahadur and Peirce Leslie & Co., Ltd. v. Perumal : AIR1918Mad580 . We do not think that any of these decisions has any bearing upon this case because in all of them the application was made for transfer to a Court actually in existence but without pecuniary jurisdiction to execute the decrees; a mistake of law which the petitioner could have avoided. This is not, we think, the same as applying for transmission to a Court which does not exist but which the petitioner wrongly believes to exist-That is a mistake of fact in our opinion. It has to be borne in mind that Bellary is a District in which from time to time a Sub-Court is brought into existence temporarily. Up to the end of February, 1933, there was a Sub-Court in the District of Bellary with its headquarters at Bellary and with jurisdiction over the whole District. It was not a 'First Class' Sub-Court for the simple reason that there are no trades of Sub-Courts in this Presidency. It appears to us that earned Counsel for the respondent decree-holder is on firm ground when he contends that the applications made to the Dharwar Court were entirely in accordance with law but were in one slight particular out of accordance with fact. The decree-holder could not be held responsible for knowing that First Class Sub-Courts do not exist in this Presidency he being a resident in the Bombay Presidency. It is clear that even the Additional First Class Sub-Judge of Dharwar was not aware of the fact that there are no First Class Subordinate Judges in this Presidency. There is no ground for holding that the decree-holder was applying for transmission of his decrees for execution to a Court without jurisdiction to execute them. It is not disputed on behalf of the appellants that the decree-holder wanted his decrees to be transferred to the Bellary District so that they could be executed. He wanted them to be transferred to a Court with jurisdiction to execute them. The sole mistake which he made was not a mistake of law but a mistake in the description of the Court to which he requested that his decrees might be transferred. That description would have been more or Jess sufficient if the petition had been filed six weeks earlier. For these reasons we are clearly of opinion that the execution petitions presented to the Additional Subordinate Judge of Dharwar on the 6th April, 1933, were applications made to the proper Court in accordance with law. It follows that the execution petitions filed on the 5th April 1936, were not barred by limitation and that the decision of the learned District Judge on this point is correct.

2. It is not necessary to deal with the point raised on behalf of the respondent that in any case the execution of these decrees for the whole of the sums due under them would not have been barred by limitation because the decrees were decrees for payment by instalments and the execution petitions were filed within three years after some, at any rate, of the instalments had fallen due. We are of opinion that for the whole amount due under the decrees the petitions are not barred by limitation.

3. The only other point taken on behalf of the appellants is one which has not been dealt with by the learned District Judge though we see that it was raised before him. This is to the effect that the decrees can only be executed by sale of the properties which are charged in the decrees with liability for the amounts due. Both the decrees recite that certain properties are charged for the amounts due under the decrees. Mr. Somayya for the appellants contends that this is the sole liability and that if the properties charged are insufficient to realise the amounts due under the decrees there is no further liability and no other properties of the defendants can be attached and sold. On a perusal of the decrees we find ourselves unable to accept this contention on behalf of the appellants. Both the decrees state explicitly that the defendants shall pay the plaintiff such and such a sum. We think that these are clearly personal decrees and that they impose a personal liability in case the properties do not realise the amounts due under the decrees. The executing Court will of course take care to see that the charged properties are proceeded against in the first instance arid that no other properties1 of the defendants are sold until the charged properties have been exhausted.

4. These appeals are accordingly dismissed with costs of the first respondent.


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