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Al.Ct. Alagappa Chettiar, Through His Authorised Agent Ranganatha Aiyangar Vs. Ramakrishna Aiyar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1941)2MLJ493
AppellantAl.Ct. Alagappa Chettiar, Through His Authorised Agent Ranganatha Aiyangar
RespondentRamakrishna Aiyar and ors.
Cases ReferredMuthurama Reddi v. Motilal Daga I.L.R.
Excerpt:
.....the executing court passed in march, 1931, which shows clearly that it was in this sense that the execution application was understood by the court itself. the petition in question was finally disposed of by the court on the 18th december, 1933. the learned advocate for the respondents no doubt brings to our attention the fact that in so far as his own clients are concerned the executing court passed on the 30th march, 1931, an order calling upon the appellant to make fresh applications with fuller and better particulars. 70 of 1916 was barred by 1935. no doubt the period between 1916 and 1935 is well in excess of 12 years, but we can see no reason for holding that in proceeding to execute the decree in the 1910 suit which had been attached by his assignor years before, the appellant..........it was held by the learned additional subordinate judge of madura that the application of 1935 was barred by limitation on the ground that it was the first application made after the appellate decree in 1928 to proceed against these particular properties. apparently the learned subordinate judge had overlooked the fact that the decree was granted also personally against these defendants. there is therefore no discussion in the order of the learned subordinate judge of the question whether the application of november, 1928, was or was not directed against these particular defendants. we find it quite clear that the appellant prayed in general terms for the transmission of copies of the decree to various courts and for simultaneous execution in order that he might proceed against these.....
Judgment:

King, J.

1. The appellant here is the assignee of the decree in O.S. No. 70 of 1916 of the Ramnad Sub-Court. His assignor had attached a decree in O.S. No. 53 of 1910, and as assignee he applied in March, 1935, to execute that attached decree as against certain of the defendants. Those defendants were ordered by the decree, as amended in appeal in 1928, to pay back the amounts which they had drawn from Court out of the late Raja's allowance money with interest. In withdrawing the money from Court they had offered the security of immoveable property. This application of 1935 by the appellant is to sell the property which they thus offered as security. The appellant relied upon certain previous applications, one of which was filed in November, 1928, seven months after the appellate decree, and two of which were filed in 1931 and 1932 respectively. These later applications were not filed by himself but by another attaching decree-holder. It was held by the learned Additional Subordinate Judge of Madura that the application of 1935 was barred by limitation on the ground that it was the first application made after the appellate decree in 1928 to proceed against these particular properties. Apparently the learned Subordinate Judge had overlooked the fact that the decree was granted also personally against these defendants. There is therefore no discussion in the order of the learned Subordinate Judge of the question whether the application of November, 1928, was or was not directed against these particular defendants. We find it quite clear that the appellant prayed in general terms for the transmission of copies of the decree to various Courts and for simultaneous execution in order that he might proceed against these defendants as well as the others. There is also an order of the executing Court passed in March, 1931, which shows clearly that it was in this sense that the execution application was understood by the Court itself. It is quite clear therefore that in November, 1928, the appellant desired to proceed against the present respondents.

2. According to Article 182 of the Limitation Act he will now be entitled to reckon as the date from which limitation begins to run for his next application the date of the final order on that application. The petition in question was finally disposed of by the Court on the 18th December, 1933. The learned advocate for the respondents no doubt brings to our attention the fact that in so far as his own clients are concerned the executing Court passed on the 30th March, 1931, an order calling upon the appellant to make fresh applications with fuller and better particulars. He argues therefore that it is only from this date that the appellant is entitled to count time in regard to limitation and that for our present purpose 30th March, 1931, must be considered to be the date of the final order. We are unable to accept this contention. The language of Article 182 is very simple. It refers to the date of 'the final order passed on an application made in accordance with law to the proper Court'. Although for certain purposes, as is set out in the explanation, applications have to be analysed and their effect considered as against particular judgment-debtors, there is nowhere in the section any further explanation which deals with the meaning of this expression 'final order'. If the Legislature had wished to constitute the final order as against any particular judgment-debtor as the final order to be considered in any future application against him, it would have been easy for it to have said so explicitly. Without any such explicit statement it seems clear to us that the final order on an application can only mean just what it says--and that in this case the date of the final order is undoubtedly the 18th December, 1933. If therefore there are no other objections it is clear that the application of 1935 is within time in its relation to the application of 1928.

3. There are however two other objections raised on behalf of the respondents. The first is that the application of 1928 was not made to the proper Court. As has already been stated, the prayer in the application was to transmit the decree to certain other Courts and we have been informed that in actual fact the decree had been transmitted years before to these other Courts and had never been returned. It was therefore argued that since the decree had been transmitted before from the executing Court, the Court which transmitted it had lost all jurisdiction in the matter of further execution and therefore this petition was not presented to the proper Court. A very similar argument was addressed to us only last week in connection with another Civil Miscellaneous Appeal (No. 342 of 1939) and we have there dealt with it in full, and have given reasons for holding that the Court which has transmitted the decree still retains its jurisdiction to execute it under certain circumstances. We have there followed a decision of a Bench of this Court in Muthurama Reddi v. Motilal Daga I.L.R. (1938) Mad. 326. Nothing has been addressed to us in the argument today which leads us to dissent from the views which we expressed so recently. We are accordingly of opinion that the present application, which is similar in its facts to the one with which we then dealt, was made to the proper Court.

4. Finally it is argued that under Section 48 Civil Procedure Code the appellant is barred from filing this particular execution application on the. ground that although the execution of the decree in O.S. No. 53 of 1910 may not be barred, the execution of the decree in O.S. No. 70 of 1916 was barred by 1935. No doubt the period between 1916 and 1935 is well in excess of 12 years, but we can see no reason for holding that in proceeding to execute the decree in the 1910 suit which had been attached by his assignor years before, the appellant was in reality executing his own decree of 1916. In our opinion, by the act of attaching the decree in the 1910 suit the appellant has done all he can to secure for himself in his 1916 suit the property of his judgment-debtor. In proceeding to execute the decree which he , has attached he is essentially doing nothing, more than he would be doing if he proceeded to sell ordinary landed property which he had attached. We are not therefore convinced that the present application in any sense involves the execution of the decree of 1916. It is therefore irrelevant that the decree of 1916 was barred by 1935.

5. In the result there are no grounds whatever for holding that the application now in question was barred by limitation. This appeal must accordingly be allowed and the application restored to file and disposed of by the learned Subordinate Judge in accordance with law. The respondents must pay the appellant's costs in this Court. The costs of the execution application will abide the result.


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