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V. Krishnaiyah Vs. C. Gajendra Naidu and Two ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported inAIR1918Mad513; (1917)ILR40Mad1127
AppellantV. Krishnaiyah
RespondentC. Gajendra Naidu and Two ors.
Excerpt:
limitation act (ix of 1908), article, 183 - decree of original side of high court against two persons jointly--revivor of decree on notice to one only under section 248 of civil procedure code (xiv of 1882), whether a revivor against the other also. - - 1. this appeal raises an interesting point as to which mr. the term 'revivor' in the third column of article 183, as is well known, refers to the common law practice which prevailed in the supreme courts in india under which, if a writ of execution was not sued out within a year and a day, it was necessary to revive the decree by a process known as scire facias or more fully scire facias quare executionem non habeas, that is to say by calling on the judgment-debtor to show cause why the plaintiff should not have execution against him......22, under which when an application for execution is made more than one year after the date of the decree, notice is to go to the persons against whom execution is prayed requiring him to show cause on a date to be fixed why the decree should not be executed against him. this rule requires notice to go to the person against whom execution is applied for, and sub section 6 of the third column of article 182 of the limitation act provides that when such notice has been issued, the date of issue of notice to the person against whom execution is applied for to show cause why the decree should not be executed against him is to form a fresh starting point. we think both on the reason of the thing and on the analogy of the provisions of the code which apply the doctrine of revivor to india that.....
Judgment:

1. This appeal raises an interesting point as to which Mr. Venkatasubba Rao has candidly put the authorities before us. The question is whether Mr. Justice Bakewell was right in holding that an order of revivor of a decree on the Original Side made against the first defendant under Section 248 of the old Code was inoperative as against the second defendant to whom no notice went. The term 'revivor' in the third column of Article 183, as is well known, refers to the common law practice which prevailed in the Supreme Courts in India under which, if a writ of execution was not sued out within a year and a day, it was necessary to revive the decree by a process known as scire facias or more fully scire facias quare executionem non habeas, that is to say by calling on the judgment-debtor to show cause why the plaintiff should not have execution against him. When the Code of Civil Procedure came to be enacted, the rule was embodied in what was Section 248 of the old Code and now Order XXI, Rule 22, under which when an application for execution is made more than one year after the date of the decree, notice is to go to the persons against whom execution is prayed requiring him to show cause on a date to be fixed why the decree should not be executed against him. This rule requires notice to go to the person against whom execution is applied for, and sub Section 6 of the third column of Article 182 of the Limitation Act provides that when such notice has been issued, the date of issue of notice to the person against whom execution is applied for to show cause why the decree should not be executed against him is to form a fresh starting point. We think both on the reason of the thing and on the analogy of the provisions of the Code which apply the doctrine of revivor to India that as regards the revivor of Original Side decrees notice must go to the parties against whom it is sought to revive the decree. The whole doctrine, as is explained in the passage from Blackstons cited in Mr. Justice Bakewell's judgment, had its origin in the presumption of satisfaction which was held to arise when execution had not been applied for within a year after the date of the judgment. As regards Article 182, Explanation 1 in the third column, provides that where the decree or order has been passed severally against more persons than one, the application shall take effect against only such of the said persons or their representatives' as it may be made against. But where the decree has been passed jointly against more persons than one, the application, if made against any one or more of them, or against his or their representatives shall take effect against them all. This only applies to applications under Article 182 which in terms excludes applications such as the present provided for by Article 183.

2. The Explanation refers only to applications under Article 182 and has nothing to do with the revivor of Original Side decrees. For these reasons we think that the judgment of Mr. Justice Bakewell is right and that the appeal must be dismissed with costs of the first respondent.


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