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Srireddi Venkatraju and ors. Vs. Allam Gangaraju and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1937Mad113; 166Ind.Cas.648; (1936)71MLJ808
AppellantSrireddi Venkatraju and ors.
RespondentAllam Gangaraju and ors.
Cases ReferredVirarama v. Annasami I.L.R.
Excerpt:
- .....held that the execution application is barred. it was not barred unless it was in the nature of a fresh application after the 12 years' limit laid down by section 48. the application itself, having been made on 7th november, 1929, was within the prescribed time-limit, and it seems to me that the notice required to go to somebody representing the third defendant was only ancillary to that application and could not be treated as a fresh application. it is settled that an application made within the 12 years' limit does not preclude an order being made on it after that period. virarama v. annasami i.l.r. (1883) 6 mad. 359. in my opinion, therefore, section 48 did not bar the application. on this conclusion it is not necessary to consider the question of fraud. the appeal is allowed and the.....
Judgment:

Cornish, J.

1. the appellants are the legal representatives of the decree-holder. He obtained his decree on 15th October, 1918. On 7th November, 1929, the appellants made an application to have the decree transmitted to another Court for execution. In the meanwhile there had been a protracted attempt to serve the third defendant with notices. First defendant had been served and fifth defendant had been served; but first defendant, the father and guardian of the third defendant, refused service on his behalf, and when the appellants got third defendant's mother appointed his guardian, that woman was never at the address to which the notice was sent. At long last on 30th October, 1930, a Court clerk was appointed guardian. By that time of course 12 years from the date of the decree had passed. The Court' to which the decree was transmitted returned it to the transmitting Court to determine the question of limitation. And upon this both the lower Courts have held that the execution application is barred. It was not barred unless it was in the nature of a fresh application after the 12 years' limit laid down by Section 48. The application itself, having been made on 7th November, 1929, was within the prescribed time-limit, and it seems to me that the notice required to go to somebody representing the third defendant was only ancillary to that application and could not be treated as a fresh application. It is settled that an application made within the 12 years' limit does not preclude an order being made on it after that period. Virarama v. Annasami I.L.R. (1883) 6 Mad. 359. In my opinion, therefore, Section 48 did not bar the application. On this conclusion it is not necessary to consider the question of fraud. The appeal is allowed and the matter will be remanded for disposal. But in view of the dilatoriness of the appellants in pursuing their remedies I make no order for costs in this appeal. The appellants will have their costs in the lower Courts.


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