Skip to content


Chinna Vel Naick Vs. Venkatarama Naick and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai
Decided On
Reported inAIR1932Mad19; (1931)61MLJ541
AppellantChinna Vel Naick
RespondentVenkatarama Naick and anr.
Cases ReferredAdhar Chandra Dass v. Lal Mohun Das I.L.R.
Excerpt:
- - , puts the matter more clearly. that is clearly against the appellant's present contention. the article seems to be framed precisely in order to admit a case like the one under consideration where the decree-holder has put in an application in accordance with law to the proper court to bring on legal representatives as a step-in-aid to execution......paragraph.2. the application is to bring on to the record the heir of the 2nd plaintiff, and the legal representatives of the 1st defendant, and then to realize the decree on behalf of the 1st plaintiff. apparently it was alleged in the body of the application that the 1st had obtained an oral transfer of the right of the 2nd plaintiff, and since decrees cannot be orally transferred the e.p. was finally dismissed as invalid. it is, therefore, argued by the appellant that there was no application in accordance with law. but it must be noted that apart from the transfer the 1st plaintiff had his own right under the decree and was entitled to apply to the proper court to have the necessary legal representatives brought on to record. so far the application is in accordance with law, and.....
Judgment:

Jackson, J.

1. The sole point for determination in this second appeal is whether E.P. No. 522 of 1927 is an application in accordance with law to the proper Court for execution or to take some step-in-aid of execution. The facts leading up to this essential point are stated by the District Munsif in his fourth paragraph.

2. The application is to bring on to the record the heir of the 2nd plaintiff, and the legal representatives of the 1st defendant, and then to realize the decree on behalf of the 1st plaintiff. Apparently it was alleged in the body of the application that the 1st had obtained an oral transfer of the right of the 2nd plaintiff, and since decrees cannot be orally transferred the E.P. was finally dismissed as invalid. It is, therefore, argued by the appellant that there was no application in accordance with law. But it must be noted that apart from the transfer the 1st plaintiff had his own right under the decree and was entitled to apply to the proper Court to have the necessary legal representatives brought on to record. So far the application is in accordance with law, and the bringing on of these legal representatives was a step-in-aid of execution. It is argued, however, that this bringing on would only be a step-in-aid of execution, in so far as it is a step-in-aid of the application for execution which was invalid, as though the Article ran, an application in accordance with law for execution or to take some step-in-aid of the aforesaid application for execution in accordance with law. The Article does not run in that way, and in construing the statute of limitation it is a recognised practice not to read into it more than it contains. 1 should hold, therefore, that the Lower Appellate Court has rightly decided the matter.

3. It remains to see whether this view is shaken by the relevant case-law.

4. The appellant relies upon Sinnan Chetty v. Alagiri Aiyar I.L.R. (1923) 46 M. 852 : 45 M.L.J. 516 where it is laid down that an execution petition cannot be a step-in-aid of itself. As far as that goes it seems to be rather against the appellant's argument that the step-in-aid of bringing on legal representatives was exclusively a step-in-aid of this very petition. It was a step which aided the execution as a whole.

5. Ramanathan Chettiar v. Raghavendra Row (1912) 16 I.C. 807 lays down, what no one disputes, that an oral assignment is invalid. The only way the respondent seeks to justify E.P. No. 522 of 1927 is that it contains the prayer to bring on legal representatives.

6. Kailasa Pandaram v. Ramanuja Naidu (1917) 39 I.C. 950 is another case of an admittedly invalid application, not because of oral transfer but because of transfer of a minor's interest without the Court's consent.

7. The respondent relies upon Adhar Chandra Dass v. Lal Mohun Das I.L.R. (1897) 24 C. 778. There, the decree-holder was seeking to execute an attached decree, and as in the present case also sought to bring on legal representatives. The Court held that the execution of an attached decree was not necessarily unlawful (anticipating Order 21, Rule 53) and also held (p. 780) in regard to that part of the application which asked for the substitution of the heirs of the judgment-debtor in place of the judgment-debtor that without bringing them before the Court the judgment-creditor could not have proceeded with his execution proceedings. 'His application for that purpose appears to me to be a step-in-aid of execution in accordance with law.' Mr. Rajah Aiyar argues that MacLean, C.J., would never have written in these terms unless he had first found that the application to execute an attached decree was valid. I do not think so. The learned Chief justice is evidently considering the application as of a double nature in two parts. He is prepared to hold that the part, praying for execution of an attached decree is lawful; but, even if it were not, and the application were disallowed, still the part of it which seeks to bring on legal representatives is none the less a step-in-aid of execution. This is brought out in the head-note. Bannerjee, J., puts the matter more clearly. Granting, he says on p. 782 that the application was not according' to law, the application was not merely an application for execution but contained a further prayer for the substitution of the legal representatives of the deceased judgment-debtor in his place ... an incidental step which was a necessary step for the execution of the decree. That is clearly against the appellant's present contention. Moreover if the only application that can save the bar of limitation is an effective application for execution, there is no apparent reason for the alternative 'or to take some step-in-aid of execution' being inserted in the Article. The Article seems to be framed precisely in order to admit a case like the one under consideration where the decree-holder has put in an application in accordance with law to the proper Court to bring on legal representatives as a step-in-aid to execution. It is idle for the appellant to contend that the Court must disregard the application to take a step, And must look only to the application for execution, when the statute in terms requires the Court to consider this alternative application to take some step-in-aid.

8. Put concisely, the appellant's view is, the application for execution must first be considered, and if that is contrary to law, nothing more need be looked at.

9. While the view of the respondent is, consider the application to take a step-in-aid, and if that is according to law, the further prayer for execution does not matter.

10. Agreeing with the latter view, I dismiss the appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //