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Athivarapu Venkatarami Reddi Vs. Kotamreddi Rami Reddi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.A.O. No. 44 of 1948
Judge
Reported inAIR1950Mad582
ActsCode of Civil Procedure (CPC) , 1908 - Sections 35, 38 and 42; Limitation Act, 1908 - Schedule - Article 182 and 182(5)
AppellantAthivarapu Venkatarami Reddi
RespondentKotamreddi Rami Reddi
Appellant AdvocateK. Umamaheswaram, Adv.
Respondent AdvocateR. Ramamurthi Iyer, Adv.
DispositionAppeal allowed
Cases ReferredAyyanna Goundan v. Tandavan Chettiar
Excerpt:
.....execution petition was dismissed on 4th february 1936. thereafter, of course, the decree-holder filed, execution petitions in both the courts, as he bad been allowed to execute his decree simultaneously in both the courts. 110, is clearly against him. 110, and are clearly against defendant 1's contention. i am satisfied that, as the law stands in this state, a court which has passed the decree can despite its having transferred it for execution to another court and not having received it back with a non satisfaction certificate, entertain an application by the decree-holder for transfer of the decree to a third court, or an application for simultaneous execution, which can only be ordered by the court passing the decree. even if a party thought that he had to get the decree back with..........judge, nellore, dated 7th october 1947, in a. s. 111 of 1947 on his file, setting aside the kavali district munsif's order, dated 13th december 1946, in e. p. no. 48 of 1946, in o. s. no. 781 of 1933, and dismissing the execution petition as barred by limitation, as the order of the district munsif, nellore, dated 27th january 1936, in ex. p. 5 (a), directing simultaneous execution in his court as well as the district munsif court, kavali, had been passed without notice to the judgment-debtors and was illegal and would not serve as a step-in aid of execution and save limitation regarding the subsequent execution petitions, including e. p. no. 48 of 1946, under the rulings in gurudas adbya v. jnanendra narain : air1935cal268 and lakshman hari kanhere v. v. g. virkar : air1939bom258.....
Judgment:

Panchapakesa Ayyar, J.

1. This is an appeal by the decree-holder in O. S. No. 781 of 1933, District Munsif Court, Nellore, against the order of the District Judge, Nellore, dated 7th October 1947, in A. S. 111 of 1947 on his file, setting aside the Kavali District Munsif's order, dated 13th December 1946, in E. P. No. 48 of 1946, in O. S. No. 781 of 1933, and dismissing the execution petition as barred by limitation, as the order of the District Munsif, Nellore, dated 27th January 1936, in EX. P. 5 (a), directing simultaneous execution in his Court as well as the District Munsif Court, Kavali, had been passed without notice to the judgment-debtors and was illegal and would not serve as a step-in aid of execution and save limitation regarding the subsequent execution petitions, including E. P. No. 48 of 1946, under the rulings in Gurudas Adbya v. Jnanendra Narain : AIR1935Cal268 and Lakshman Hari Kanhere v. V. G. Virkar : AIR1939Bom258 .

2. I have perused the entire records, and heard elaborate arguments on both sides, as there is no direct decision of this Court on the legal point involved, where the lower Courts have given contradictory decisions.

3. The facts were briefly these. The appellant had, on 24th January 1934, got a decree for Rs. 2640-8-0, on a letter executed by defendant 1 against both the defendants, together with costs of Rs. 338-3-0. As usual, his task began only with the decree. In spite of some twelve execution petitions, and the lapse of nearly 16 years, the appellant decree-holder has admittedly, not recovered a pie. He filed E. P. No. 530 of 1934 (EX. P. 1) in the Nellore District Munsif Court on 6th April 1934 for the arrest of defendant 2. He was not found for arrest, and the execution petition was dismissed on 6th July 1934. E. P. No. 177 of 1935 (EX. P. 2) was filed on 26th January 1935, in the District Munsif Court, Nellore, for transmitting the decree in the District Munsif Court, Kavali, for execution. The order for transmission was passed on 1st February 1935. Execution Petition No. 204 of 1935 on the file of the District Munsif, Kavali, was filed on 9th May 1935 for attachment and sale of defendant 2's immovable properties. The immovable properties of defendant 2 were attached, but the execution petition was not pressed, and it was dismissed on 3rd August 1936. Execution Petition No. 357 of 1935 on the file of the District Munsif Court, Kavali, was filed on 25th July 1935 for the attachment and sale of defendant 1's immovable properties. The immovable properties were attached and brought to sale on 17th February 1936. As there were no bids, the execution petition was struck off on 20th February 1936. Meanwhile, on 24th January 1936, the decree-holder filed E. P. No. 147 of 1936 (Ex. P. 5) in the Nellore District Munsif Court praying for the attachment by prohibitory order, of the produce realised by the Receiver in O. S. No. 898 of 1929 on the file of the District Munsif Court, Gudur. Along with this execution petition, he filed also a petition E. P. No. 145 of 1936 (Ex. P. 5) (a) for executing the decree simultaneously in the District Munsif Court, Nellore, and in the District Munsif Court, Kavali. Simultaneous execution was 'permitted' by the District Munsif, Nellore, on 27th January 1936 in EX. P. 5 (a) without issuing any notice to the judgment-debtor. But E. P. No. 147 of 1936, District Munsif Court, Nellore, came to nothing, and that execution petition was dismissed on 4th February 1936. Thereafter, of course, the decree-holder filed, execution petitions in both the Courts, as he bad been allowed to execute his decree simultaneously in both the Courts. He filed E. P. No. 82 of 1939 on the file of the District Munsif Court, Nellore (EX. P. 6) on 30th January 1939, for attachment and sale of the movables of both the judgment-debtors. That execution petition was dismissed on 14th March 1939 for non-payment of batta. The decree-holder filed E. P. No. 91 of 1939 on the file of the District Munsif Court, Kavali, on 16th February 1939, for the attachment and sale of defendant 1's movables. It was dismissed on 13th March 1939 for non-payment of batta. The decree-holder then filed an unnumbered execution petition (EX. P. 3) on 18th February 1912 in the Nellore District Munsif Court for the attachment of the movables of the defendants. The Nellore District Munsif asked him for a non-satisfaction certificate from the District Munsif Court, Kavali, before proceeding with this execution petition. So, the decree-holder filed E. A. No. 884 of 1942 in the District Mansif Court, Kavali, for retransmitting the decree to the Nellore District Munsif Court with a certificate of non-satisfaction. On 29th September 1942, the District Munsif, Kavali, issued a certificate of non-satisfaction and re-transmitted the decree to the District Munsif Court, Nellore, even though E. A. No. 884 of 1942 had been filed more than three years from the last order of the Kavali District Munsif, on 13th March 1939 in E. P. No. 91 of 1939. The unnumbered E. P. of 1942 (Ex. P. 3) in the Nellore District Munsif Court was dismissed as 'not pressed' on 26th September 1942, since the non-satisfaction certificate had not been received by then. On 24th September 1945, the decree-holder filed another execution petition (EX. P. 4) in the District Munsif Court, Nellore for the attachment of the movables of the judgment-debtors. That execution petition was dismissed on 23rd April 1946, as 'not pressed'. On 23rd January 1946, the decree-holder filed a petition E. A. No. 37 of 1946 (EX. P. 7) in the District Munsif Court, Nellore for the transmission of the decree once more to the District Munsif Court, Kavali, and for simultaneous execution. Permission for simultaneous execution was granted, and the decree was again transmitted to the District Munsif Court, Kavali. Thereafter, the decree-holder filed the present execution petition, E. P. No. 48 of 1916, in the District Munsif Court, Kavali, for attachment and sale of the movables of defendant 1 and for the arrest of defendant 1.

4. Defendant 1 raised three main contentions before the District Munsif, Kavali, namely, limitation, cessation of the attachment and right to scaling down of the decree debt. He urged that this execution petition was barred by time, as the order for simultaneous execution passed by the District Munsif, Nellore, on 27th January 1936 under EX. P. 5 (a) was void as not having been made to 'the proper Court' and also because the District Munsif had not reserved this right when transmitting the decree to the Kavali Court or got back the decree before he passed the order, and that, in any event, the order was illegal and void under the above two rulings, of the Calcutta and Bombay High Courts, and no notice had gone to the judgment-debtors, before the order for simultaneous execution was passed, and that, even if it was not wholly void, it would enure only for just one execution petition and would never validate the subsequent execution petitions, EXS. P. 6 and P. 3 filed in 1939 and 1942 in the Nellore District Munsif's Court which were dismissed on 14th March 1939 and 26th September 1942, before the decree was retransmitted to that Court with a certificate of nonsatisfaction by the District Munsif, Kavali, and, so, E. P. No. 48 of 1946 would also be barred. The learned District Munsif overruled all these objections of defendant 1, and directed E. P. No. 48 of 1946 to proceed, as defendant 1 had given up his objection that the attachment was not subsisting, leaving the appellant free to file a petition in the District Munsif Court, Nellore, for scaling down the debt under the Madras Agriculturists Relief Act, in case he was entitled to do so, as he contended. The learned District Munsif considered that the order, Ex. P. 5 (a), dated 27th January 1986, permitting simulataneous execution did not merely enure for one execution petition, as contended by defendant 1, but for any number of execution petitions. He also refused to hold that the permission was void and of no effect to save limitation, and that the rulings in Gurudas Adbya v. Jnanendra Narain : AIR1935Cal268 and Lakshman Hari v. V. G. Virkar : AIR1939Bom258 relied on by defendant 1's counsel, would not have that effect, especially when there was no Madras ruling holding such an order passed without notice to be null and void and of no effect to save limitation.

5. On appeal by defendant 1, the learned District Judge, while holding that the order dated 27th January 1936 was a 'final order'' within the meaning of Article 182 (5), Limitation Act, and that the application for permitting simultaneous execution was entertainable by the Nellore District Munsif Court, and had been made therefore to the 'proper Court', and that the order permitting simultaneous execution enured for all subsequent execution petitions, and not merely for just one petition, as contended by defendant 1's counsel, held that the order under Ex. P. 5 (a) was illegal, and null and void, and incapable of saving limitation regarding E. P. No. 48 of 1946 in view of the rulings in Gurudas Adbya v. Jnanendra Narain : AIR1935Cal268 and Lakshman Hari v. V. G. Virkar : AIR1939Bom258 , as there were no rulings of this Court to the contrary. In that view, he dismissed E. P. No. 48 of 1946 as barred by limitation. The decree-holder has brought this second appeal.

6. Mr. K. Umamaheswaram, for the appellant, has vehemently argued that the order Ex. P. 5 (a) dated 27th January 1986 is enough to validate the subsequent execution petitions (Exs. P. 6, P. 3, P. 4, P. 7 and E.P. 48 of 1946 filed in the Nellore and Kavali District Munsif Courts) and to save limitation, even if it is held to be irregular for lack of notice to the judgment-debtors and might have been set aside on application by the judgment-debtors. As I was disposed to agree with this contention, Mr. R. Ramamurthi Aiyar, for defendant 1, wanted to argue also on the points found against him by the learned District Judge, and he was allowed to do so.

7. The first contention of Mr. Ramamurthi Aiyar was that the Nellore District Munsif's Court had no jurisdiction at all to entertain the petition (Ex. P. 5) (a) for simultaneous execution, on 24th January 1996, as it had not reserved to itself the right to entertain such petitions when it transmitted the decree to the Kavali District Munsiff on 1st February 1935, and had not also got back the decree with a certificate of non-satisfaction by 24th January 1936. He relied on the ruling of the Privy Council in Maharaja of Bobbili v. Narasaraju Bahadur, 39 Mad. 640: A. I. R. 1916 P. C. 16 and the Full Bench ruling of this Court in Vasireddi Srimanthu v. Venkatapayya, 1947 1 M. L. J. 306: A. I. R. 1947 Mad. 347, and the rulings in Nagappa Chettiar v. Lakshmanan Chettiar, 1948 1 M. L. J. 360: A. I. R. 1949 Mad. 80, and Abdul Hafiz v. Abdul Sukkur : AIR1938Mad27 . I cannot agree. The ruling of the Privy Council in the Bobbili case, 39 Mad. 640: A. I. R. 1916 P. C. 16 was considered by a Bench of this Court consisting of Venkatasubba Rao and Reilly JJ. in Subba Rao v. Ankamma, (1933) 63 M. L. J. 788: A. I. R. 1933 Mad. 110, on 2nd September 1932, and was held to prohibit only an application to the Court which passed the decree, for sale of properties attached by the Court to which the decree had been transferred, without getting the decree retransferred and without getting an order for simultaneous execution. It was held not to preclude an application by an assignee to the Court which passed the decree to recognise his assignment and allow simultaneous execution to be proceeded with. It was expressly held that the Court need not stay its hand till the return of the decree and the receipt of the non-satisfaction certificate. So, the observation of a single Judge, Varadachariar J. in Abdul Hafiz v. Abdul Shukur : AIR1938Mad27 , on 20th August 1937, that there is no reason to limit the powers of the Court to which a decree has been transferred for execution, and that, indeed, it is possible to construe the observations of the Judicial Committee in Maharaja of Bobbili v. Narasaraju Bahadur, 89 Mad. 640 : A. I. R. 1916 P. C. 16, as depriving the original Court of jurisdiction of the right to execute its decree, once the decree has been sent to another Court for execution till the certificate under Section 41 is received from the transferee Court, must only be regarded as an obiter, and, in any event, as not meant to and as also incompetent to, treat the earlier Bench ruling in Subba Rao v. Ankamma, (1933) 63 M. L. J. 788: A. I. R. 1933 Mad. 110, that the original Court was not bound to wait for a certificate under Section 41, as wrong. The Full Bench ruling in Vasireddi Srimanthu v. Venkatapayya, 1947 1 M. L. J. 306: A. I. R. 1947 Mad. 347 merely held that a Court cannot make a valid order for sale in execution unless at the time the order is made the property is within its territory and that a sale ordered otherwise would be a nullity, and that Section 21, Civil P. C. does not cover an objection going to the nullity of an order on the ground of want of jurisdiction. The Bench ruling in Nagappa Chettiar's case : (1948)1MLJ350 merely says that while an application can always be made to the Court which passed the decree for an order for re-transferring it and that such an application is a step-in-aid of execution and prevents limitation from running against a decree-holder, nevertheless & Court to which the decree is sent for execution is the only Court which has seisin of the execution proceedings and that in such a case the Court which passed the decree has no jurisdiction to entertain an execution application unless concurrent execution has been ordered, or unless the proceeding in the Court to which the decree was sent has been stayed for the purpose of excuting the decree in the first Court. So, those rulings will not help the defendant 1 in his contention that an application for simultaneous execution cannot be made to the Court which, passed the decree but has transferred it to another Court for execution and has not received it back with a certificate for non-execution. Indeed, the ruling of the Bench in Subba Rao v. Ankamma, (1933) 63 M. L. J. 788: A. I. R. 1933 Mad. 110, is clearly against him. The Bench rulings in Mahadum Beg Saheba v. Muhammad Meera Sahib : AIR1928Mad493 , and Muthurama Reddi v. Motilal Daga : AIR1938Mad113 , also take the same view as in Subba Rao v. Ankamma, (1933) 63 M. L. J. 788: A. I. R. 1933 Mad. 110, and are clearly against defendant 1's contention. I am satisfied that, as the law stands in this state, a Court which has passed the decree can despite its having transferred it for execution to another Court and not having received it back with a non satisfaction certificate, entertain an application by the decree-holder for transfer of the decree to a third Court, or an application for simultaneous execution, which can only be ordered by the Court passing the decree.

8. The next contention of Mr. Ramamurthi Aiyar, for defendant 1, was that the fact that the decree holder mentioned in his affidavit in Ex. P. 5 (a) a particular purpose, and had his 1942 unnumbered execution petition dismissed as 'not pressed' because the decree had not been retransmitted with the non-satisfaction certificate, and had put in another petition for simultaneous execution (Ex. P. 7) on 23rd January 1946, all showed that the District Munsif's order dated 27th January 1936 enured only for one simultaneous execution petition in his Court. I cannot agree. The request made by the decree-holder in his petition for simultaneous execution dated 24th January 1936 was a general request and was not confined to one execution petition. The order of the learned District Munsif dated 27th January 1936 was also a general permission, and was not confined to just one execution petition. The decree-holder thereafter filed not one execution petition in the Nellore Court, but three execution petitions, in 1939, 1942 and 1945. The affidavit in Ex. P. 5 (a) only showed the occasion for making an application for simultaneous execution and cannot restrict the scope of either the request in the application or the order granting it. The non-pressing of the 1942 execution petition has nothing to do with the interpretation of the permission granted. Even if a party thought that he had to get the decree back with a certificate of nonsatisfaction before proceeding with another execution petition, that will not affect the legal interpretation of an order like that in Ex. P. 5(a) by this Court. Besides, the Nellore Court might have wanted to satisfy itself that the Kavali Court had recovered nothing before proceeding with the simultaneous execution petition filed before it in 1943 for attachment of movables. The fact that the decree-holder filed another petition, Ex. P. 7, for simultaneous execution, in 1946, is also irrelevant for our purpose, since the Kavali Court had returned the decree to the Nellore Court with a certificate of non-satisfaction on 29th September 1942, and this fresh petition for retransmission of the decree to it for execution, with a fresh permission for simultaneous execution, was necessary.

9. The last contention of Mr. Ramamurthi Aiyar was that the order dated 27th January 1936 was illegal and void and could not serve to save limitation as per the rulings in Gurdas Adbya, v. Jnanendra Narain : AIR1935Cal268 and Lakshmanan Hari v. V. G. Virkar, : AIR1939Bom258 . I cannot agree. Those rulings merely held that an order for simultaneous execution was a judicial order, and not an administrative order, and that care should be taken to see that there is not any hardship to the judgment-debtor, and so, notice should go to him, as in the case of any judicial order, so that he may be heard on the point, and that an order passed without notice to him was illegal and deserved to be set aside, so that a fresh order might be passed after hearing him. It will be noticed that the Civil Procedure Code does not require mandatorily a notice to the judgment-debtor for ordering a petition for simultaneous execution as in the case of Order 21, Rule 66. It is only a notice required under the rule of justice, equity and good conscience, that no judicial order shall be passed without giving the party affected an opportunity of being heard. So, though an order passed without such notice to the judgment debtor may be illegal and deserving of being set aside, at the instance of the judgment-debtor, and the matter remanded for passing a fresh order after hearing him, it is not in my opinion, a case where such an order will be void and of no effect to serve as a step-in-aid to save limitation. Illegal orders in execution petitions, like ordering execution to proceed against dead persons or against properties held to be not liable for attachment, have been held by Somayya J. in Ayyanna Goundan v. Tandavan Chettiar : AIR1945Mad352 to be quite valid as steps-in-aid to save limitation for subsequent execution petitions. So too, here, the illegal order in Ex. P. 5 (a) will serve as a step-in-aid and save limitation regarding subsequent execution petitions including the present execution (E. P. No. 48 of 1946). In other words, it has got a mere irregularity for vitiating the order, and not a material irregularity making: the order null and void. In cases of mere irregularity, the order will be valid till set aside unless prejudice to the other side is proved. In the present case, it has not caused the slightest prejudice to the judgment-debtors who have merrily gone on contesting further execution petitions and escaped paying a pie till now. So this irregularity is only a mere defect in procedure to be punished with deprival of costs, as costs are the supreme panacea for all procedural ills. It is enough to deny the appellant his cost through out for this irregularity and laches, and I am ordering this.

10. In the end, therefore, I allow this civil miscelloneous second appeal, and hold that E. P. No. 48 of 1946 is not barred by limitation, and set aside the lower appellate Court's order, dismissing the execution petition, and direct the execution petition to proceed, but allow the judgment-debtors to file petitions in the District Munsif Court Nellore, under the Madras Agriculturists Relief Act, for scaling down the decree debt, if they are so advised, and direct all the parties in the execution petition, appeal, suit and civil miscellaneous second appeal to bear their own costs, for the reasons already stated.

11. Leave refused.


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