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Manyam Surayya Vs. Surkavalli Venkataratnam - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1924Mad210; 79Ind.Cas.779; (1923)45MLJ822
AppellantManyam Surayya
RespondentSurkavalli Venkataratnam
Cases Referred and Rameshwar Singh v. Homeshwar Singh
Excerpt:
- - we think that the principle clearly applies to the present case and, therefore, we hold that the application is not bar-rod by limitation in this case......already commenced can be supported or not. it is clear from the authorities that, when an execution application is brought and properties are attached in execution of that application if any obstacle is placed in the way of the properties being sold and assets realised for the purpose of meeting the decree debt by the action of a third party putting in a claim petition and it becomes necessary for the decree-holder either to dispute the claim proceedings or to bring a suit to have the matter decided whether the properties are those of the judgment-debtor, his subsequent application to sell those properties is not governed by article 182 of the limitation act, but is in the nature of a revival of the original execution application and article 181 of the limitation act will apply......
Judgment:

1. This case raises a question of limitation in execution proceedings. The appellant before us brought a suit against the widow of one Narayya on a promissory note executed by the said Narayya and while the suit was pending he obtained an order of attachment before judgment of certain properties belonging to Narayya in the hands of the widow, lie then obtained a decree against the assets of Narayya in the hands of the widow. 8 days thereafter a claim petition seems to have been put in by one Peramma claiming those properties to be hers and to be not attachable for the debt of Narayya. That claim petition was allowed. Thereupon the decree holder had to bring a ''suit to contest the order in the claim proceedings and having brought the suit he finally succeeded in getting a decree only on the 8th December 1920 that the properties belonged to his judgment-debtor. In the meanwhile, it is true that he took no steps to execute the decree. He then put in the present application, which is now before us on the very day that is, the 8th December, when the decree in the second suit was passed in his favour, to bring to sale the properties he had already attached in his application before judgment. That application was allowed by the District Munsif to the extent of the properties which he found were actually attached by the order of attachment before judgment and was dismissed as regards the rest of the properties. The Subordinate Judge on a| peal ruled that, even as regards the properties taken in attachment before judgment, the application was barred by limitation as the application was made more than three years after the date of the decree.

2. The question thus before us is whether the view taken by the District Munsif that the present application is an application which could be treated as one for reviving the execution proceedings already commenced can be supported or not. It is clear from the authorities that, when an execution application is brought and properties are attached in execution of that application if any obstacle is placed in the way of the properties being sold and assets realised for the purpose of meeting the decree debt by the action of a third party putting in a claim petition and it becomes necessary for the decree-holder either to dispute the claim proceedings or to bring a suit to have the matter decided whether the properties are those of the judgment-debtor, his subsequent application to sell those properties is not governed by Article 182 of the Limitation Act, but is in the nature of a revival of the original execution application and Article 181 of the Limitation Act will apply. If we apply that principle to the present case, there can be no doubt that the District Munsiff's view is correct and that the application by the appellant before us to sell the properties already attached is entirely within time. That this is the principle applicable as regards an execution application put in after the decree is not disputed by the other side because the authorities are all in favour of that view. Vide Chalavadi Kotiah v. Poloori Alamelamma I.L.R. (1907) M. 71 and Rameshwar Singh v. Homeshwar Singh (1919) 40 M.L.J. 1. It is however contended by the learned Vakil for the respondent before us that that principle will not apply in the case of an attachment before judgment unless it had been followed by an application for execution of the decree after the decree was passed. We are unable to accept that contention. Under the Code the attachment before Judgment enures to the benefit of the decree voider when the decree is passed so that it is no longer necessary to attach the property. Vide Order 38 Rule 11 of the Civil Procedure Code. The principle applicable in the case of an application for execution after attachment applies equally to the case of an attachment before judgment, because, after all, the position is exactly the same whether the attachment was before judgment or after the decree, when a man is prevented from getting the fruits of his decree because of somebody else's improper obstruction and his claim has been wrongly decided and he has been obliged to bring a second suit to put the matter right. We think that the principle clearly applies to the present case and, therefore, we hold that the application is not bar-rod by limitation in this case.

3. In the result, we set aside the order of the Subordinate Judge and restore that of the District Munsiff with costs here and in the Court below.


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