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Venkataraya Goundan Vs. Mallappa Goundan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1946Mad348; (1946)1MLJ163
AppellantVenkataraya Goundan
RespondentMallappa Goundan and ors.
Cases ReferredChina Venkatappa v. Peda Venkatappa
Excerpt:
- - these observations very clearly bring out the distinction between the facts in that case and the present case. 7. we are therefore of opinion that the date of the decree in the present case is 23rd december, 1925 and that, therefore, the petition for execution is clearly not within time......in which the plaintiff was declared entitled to one-sixth share in the family properties and the final decree was passed on 23rd december, 1925. the plaintiff states that he became a major only in 1940, though this is disputed by the respondents. he filed e.p. no. 362 of 1942, on 26th june, 1942, for execution of the final decree after getting the final decree engrossed with necessary stamps on 26th march, 1942. the learned subordinate judge of goimbatore has dismissed the execution petition on the ground that it is barred under section 48 of the code of civil procedure.2. it is contended for the appellant that under section 48(2) of the civil procedure code he is within time. it is stated that because of fraud played by the judgment-debtors in selling some of the properties that.....
Judgment:

Koman, J.

1. The appellant filed O.P. No. 14 of 1923 on 29th June, 1923, as pauper. The petition was subsequently registered as O.S. No. 217 of 1923. The appellant was only two years old at that time and was represented by his next friend Arunachala Goundan, the brother of the appellant's grandfather. The preliminary decree in the suit was passed on 7th October, 1924, in which the plaintiff was declared entitled to one-sixth share in the family properties and the final decree was passed on 23rd December, 1925. The plaintiff states that he became a major only in 1940, though this is disputed by the respondents. He filed E.P. No. 362 of 1942, on 26th June, 1942, for execution of the final decree after getting the final decree engrossed with necessary stamps on 26th March, 1942. The learned Subordinate Judge of Goimbatore has dismissed the execution petition on the ground that it is barred under Section 48 of the Code of Civil Procedure.

2. It is contended for the appellant that under Section 48(2) of the Civil Procedure Code he is within time. It is stated that because of fraud played by the judgment-debtors in selling some of the properties that should have come to his share under the final decree, he was prevented from executing the decree. There is nothing in the present edse to indicate that the appellant was really prevented from executing his decree. The mere fact that some of the judgment-debtors sold properties which should have fallen to the share of the appellant could not by itself prevent the appellant from proceeding in execution to recover his share of the properties under the partition.

3. It is also contended on behalf of the appellant that for computing the period of limitation under Section 48, in the present case the final decree should be deemed to have been dated only from the date when the decree was engrossed on the proper stamp paper and the decree was signed, viz., from 26th March, 1942 and that if that is deemed to be the date of the final decree, this petition for execution is within time.

4. In Ramachandra Rao v. Parasuramayya : AIR1940Mad127 , a Full Bench of this Court had to interpret the meaning of' the date of the decree ' in Clause (a) of Section 48(1) of the Code of Civil Procedure and that Bench held that the date of the decree is the date when the decree becomes executable. In that case the learned Judges were dealing with a mortgage decree, which was actually a composite decree, which, in their Lordships'opinion, was capable of being split up and ought to have been split up into a number of decrees, some of which were to come into effect only at a future date on the happening of certain contingencies.

5. The learned Judges in Aiyasamier v. Venkatachala Mudali : (1916)31MLJ513 distinguish the case they were dealing with and point out that a decree is defined as:

the formal expression of an adjudication, which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit,

and adds:

When the reliefs given in respect of those rights are distinct and enforceable at different periods of time, then for purposes of execution there is in fact more than one decree though embodied in one document. In such cases it is only reasonable to hold that the date of the decree sought to be executed within the meaning of Section 48 (a) of the Civil Procedure Code may not be what it bears on its face. It is the date when the particular adjudication sought to be enforced becomes ripe for execution according to the terms of the decree.

These observations very clearly bring out the distinction between the facts in that case and the present case. In the present case, unlike the above two cases the adjudication became ripe for execution on the date of judgment, in that the respective rights of the parties had been adjudicated and decided on. It was only the formalities to be observed in drafting the decree that had to be yet carried out.

6. China Venkatappa v. Peda Venkatappa : AIR1943Mad650 is a decision of a Bench of this Court wherein a contention similar to that raised by the appellants in the present case was raised. That contention was rejected by the learned Judges as under Order 20, Rule 7 of the Code of Civil Procedure the decree must bear the same date as the judgment. In the present case also the date of the decree has to be construed as 23rd December, 1925, the date of the judgment.

7. We are therefore of opinion that the date of the decree in the present case is 23rd December, 1925 and that, therefore, the petition for execution is clearly not within time. The appeal is dismissed with costs.


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