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Yellampalle Venkatappa Vs. Matam Nanjappa - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Judge
Reported in35Ind.Cas.594
AppellantYellampalle Venkatappa
RespondentMatam Nanjappa
Cases ReferredChalavadi Kotiah v. Poloori Alimelammah
Excerpt:
limitation act (ix of 1908), schedule i, article 182 - execution--dismissal of first application for nonpayment of batta--second application made more than 3 years after--interval spent in contesting suit by third party--second application, whether revival of first. - .....party and in their absence. that order was treated as a direction to the officers of the court to remove the proceedings from the pending list. such an execution petition may be asked to be revived, but not one in which there is an order, as in the present case, dismissing the execution petition for the plaintiff's own default in paying batta. the argument should, therefore, be disallowed.2. the next argument is that the time between the dates of the 1st court's decree in nanjappa's suit which declared the property was not attachable and the decree in appeal which reversed it, should be deducted in plaintiff's favour under section 15 of the limitation act. it is argued that the decree of the 1st court was tantamount to an order staying execution of the plaintiff's decree against the.....
Judgment:

1. Plaintiff's first application for execution was on 27th April 1907; his second application was on 22nd October 1912. It is prima facie barred by limitation. To save it from this bar, two arguments have been advanced before us. It is first contended that the second application should be treated as a continuation of the first one. The facts are that when properties were attached in pursuance of the first application one Nanjappa claimed them as his; his claims was dismissed. He thereupon brought Original Suit No. 383 of 1908 to establish his right. He got a decree in his favour for item No. 2 on 31st December 1809. Plaintiff appealed and on his appeal that decree was reversed on 11th August 1911. It is argued that execution under his first application should be treated as pending during the time he was litigating to remove the obstacle placed in his way by Nanjappa's claim and suit, and that this present application is one to revive it and carry out the prayer in the first application. There might be force in this argument, if it had not been that plaintiff's first application was dismissed for non-payment of batta. That dismissal had nothing to do with the claim or suit brought by Nanjappa. In the case cited Chalavadi Kotiah v. Poloori Alimelammah 31 M.k 71 the first application was dismissed as the Munsif received an order of stay without notice to either party and in their absence. That order was treated as a direction to the officers of the Court to remove the proceedings from the pending list. Such an execution petition may be asked to be revived, but not one in which there is an order, as in the present case, dismissing the execution petition for the plaintiff's own default in paying batta. The argument should, therefore, be disallowed.

2. The next argument is that the time between the dates of the 1st Court's decree in Nanjappa's suit which declared the property was not attachable and the decree in appeal which reversed it, should be deducted in plaintiff's favour under Section 15 of the Limitation Act. It is argued that the decree of the 1st Court was tantamount to an order staying execution of the plaintiff's decree against the property to which it referred. It is not, however, necessary to decide this question as the time that plaintiff would be able to deduct, if his argument is right, will not make his 2nd application to be in time. We agree with the lower Courts that plaintiff's application is barred by limitation and dismiss it.


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