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Narasaya Hegade Vs. Vitlaprabhu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1911)21MLJ1020
AppellantNarasaya Hegade
RespondentVitlaprabhu and ors.
Cases ReferredMohamad Mehdibulla v. Mohini Kanta Saha Chowdhury I.L.R.
Excerpt:
- - 1. a preliminary objection is taken that no question of jurisdiction within the meaning of section 115, civil procedure code, arises, but it is contended that as the munsif held that his jurisdiction was ousted by limitation he failed to exercise a jurisdiction vested in him by law, and i think this contention is sound......same-the district munsif has held that as section 48, c.p.c., prescribes only 12 years from the date of decree and omits the words 'or of the decree (if any) on appeal affirming the same' which were in section 230 of the old code, the period of limitation must run from the date of the original decree. there has, however, been a series of decisions that the appellate decree, whether confirming or modifying the original decreee, is the only decree susceptible of execution vide wannu narain singh v. lala raghunath sahai i.l.r. (1895) m. 532, abdul rahiman v. moidin saiba i.l.r. (1898) b. 500, manavikraman v. unniappan i.l.r. (1891) m. 170, mohamad mehdibulla v. mohini kanta saha chowdhury i.l.r. (1907) c. 874 and it was held by a full bench of this court that under section 230 the period.....
Judgment:

1. A preliminary objection is taken that no question of jurisdiction within the meaning of Section 115, Civil Procedure Code, arises, but it is contended that as the Munsif held that his jurisdiction was ousted by limitation he failed to exercise a jurisdiction vested in him by law, and I think this contention is sound. The execution petition was filed more than 12 years from the date of the original decree but within 12 years of the date of the appellate decree confirming the same-The District Munsif has held that as Section 48, C.P.C., prescribes only 12 years from the date of decree and omits the words 'or of the decree (if any) on appeal affirming the same' which were in Section 230 of the old code, the period of limitation must run from the date of the original decree. There has, however, been a series of decisions that the appellate decree, whether confirming or modifying the original decreee, is the only decree susceptible of execution vide Wannu Narain Singh v. Lala Raghunath Sahai I.L.R. (1895) M. 532, Abdul Rahiman v. Moidin Saiba I.L.R. (1898) B. 500, Manavikraman v. Unniappan I.L.R. (1891) M. 170, Mohamad Mehdibulla v. Mohini Kanta Saha Chowdhury I.L.R. (1907) C. 874 and it was held by a Full Bench of this Court that under Section 230 the period of limitation runs from the date of appellate decree even where only a portion of the original decree was appealed against. If the only decree capable of execution is the appellate decree the words in Section 230 'or of the decree in appeal affirming the same' became unnecessary and consequently were omitted in Section 48 of Act V of 1898, the word 'decree' alone being used as there is only one decree susceptible of execution, either the original decree in cases where there is no appeal or the appellate decree where there is one. In this view the order of the District Munsif is wrong and execution must be allowed.

2. The petition is allowed with costs.


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