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Desoo Venkatesa Perumall Chetty Vs. V. Srinivasa Ranga Row Pantulu and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported in4Ind.Cas.306
AppellantDesoo Venkatesa Perumall Chetty
RespondentV. Srinivasa Ranga Row Pantulu and anr.
Cases ReferredSee Malkarjun v. Narhari
Excerpt:
limitation act (xv of 1877), schedule ii, article 180 - civil procedure code (act xiv of 1882), section 248--execution application made after lapse of one year from date of decree--order for execution without issue of notice to judgment-debtor--'revived', meaning of, in article 180. - .....that no notice was issued and an order for attachment was made on the 19th march 1896. the present application for the transmission of the decree for execution after substituting the appellant's name as transferee on record was made within 12 years from the date of the order. the question whether the application is barred depends upon the meaning to be given it the word 'revived' in article 180, schedule ii of the limitation act. in all the cases cited an order to issue execution after notice to the judgment-debtor has been held to revive a judgment or decree. but we have not been referred to any case in which an order alone without any notice has been held to have that effect. the appellant's pleader argues that the absence of notice under section 248 of the code of civil.....
Judgment:

1. The decree-holder applied for execution, on the 15th February 1896, of his decree which was more than a year old.

2. It was necessary to issue notice under Section 248, Civil Procedure Code of 1882. We have now ascertained that no notice was issued and an order for attachment was made on the 19th March 1896. The present application for the transmission of the decree for execution after substituting the appellant's name as transferee on record was made within 12 years from the date of the order. The question whether the application is barred depends upon the meaning to be given It the word 'revived' in Article 180, Schedule II of the Limitation Act. In all the cases cited an order to issue execution after notice to the judgment-debtor has been held to revive a judgment or decree. But we have not been referred to any case in which an order alone without any notice has been held to have that effect. The appellant's pleader argues that the absence of notice under Section 248 of the Code of Civil Procedure of 1882 has been held to be only an irregularity and though it may be open to the judgment-debtor to set aside the order passed without notice in an appropriate proceeding, it is not open to him to treat it as a nullity till set aside. See Malkarjun v. Narhari 27 I.A. 216. This may be so.

3. But the question that we have to consider is, what is the meaning of the term 'revived' and when the cases show that it has long been understood to mean an order after notice, we do not think we shall be warranted in giving that term a wider meaning. We must, therefore, uphold the order of the learned Judge and hold there was no revivor.

4. It was then argued that as there is an application now pending to execute the decree, the question of limitation does not arise. This question was not raised before the learned Judge, probably for the reason that the present application was to transmit the decree for execution and not to continue any execution proceedings already pending. The appellant must be left to make a fresh application on that basis and cannot be allowed to raise that question at this stage on this application.

5. The appeal is dismissed with costs.


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