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Ventala Verrarazu Vs. Kuruvella Subbarayudu and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1922Mad3; 64Ind.Cas.493
AppellantVentala Verrarazu
RespondentKuruvella Subbarayudu and anr.
Cases ReferredMuhammad Nabi Reza v. William Alfred Thomas
Excerpt:
civil procedure code (act v of 1908), sections 48, 63, 115 - revision--separate remedy open--execution--rateable distribution--limitation. - .....obtained a decree in original suit no. 200 of 1904 on the file of the principal district munsif's court, rajahmundry, against the same judgment debtor. under the provisions of section 63 (1) of the code of civil procedure the attached properties were brought to sale in the district judge's. court, the district munsif in the meantime stopping the sale in his court and adjourning the execution petition put in before him pending the disposal of the matter by the higher court.2. i am asked to revise the order of the district judge on two grounds: first, that the district judge erred in entertaining the application, dated the 31st january 1919, put in by the counter-petitioner asking for rateable distribution. the point is that the application, when made on the 31st january.....
Judgment:

Odgers, J.

1. In this petition I am asked to revise the order of the District Judge of Godaveri directing a rateable distribution of the proceeds of a sale of property held on the 21st March 1919 by the District Court. The petitioner obtained a decree in Original Suit No. 31 of 1903 on the file of the District Court of Godaveri. The counter-petitioners obtained a decree in Original Suit No. 200 of 1904 on the file of the Principal District Munsif's Court, Rajahmundry, against the same judgment debtor. Under the provisions of Section 63 (1) of the Code of Civil Procedure the attached properties were brought to sale in the District Judge's. Court, the District Munsif in the meantime stopping the sale in his Court and adjourning the execution petition put in before him pending the disposal of the matter by the higher Court.

2. I am asked to revise the order of the District Judge on two grounds: first, that the District Judge erred in entertaining the application, dated the 31st January 1919, put in by the counter-petitioner asking for rateable distribution. The point is that the application, when made on the 31st January 1919, was over 12 years from the date of the decree, i.e., the 1st August 1904, unless the proceedings before the District Court can be regarded as a continuation of those before the District Munsif's Court, before which latter Court there is no doubt that there was an execution petition pending at the time when the proceedings were removed to the District Court by operation of Section 63; and also, by the order of the District Munsif's Court, dated the 30th January 19l9, directing that the decree copy and the execution record should be sent to the Court of the District Judge.

3. The learned Vakil for the petitioner on these facts urges that, under Section 48 of the Code of Civil Procedure, the application dated the 31st January 1919 is barred as it was over 12 years old.

4. Now the first remark to be made on this petition is that the Court is very slow to interfere in revision where there is a separate remedy open. See Sri Krishna Doss v. Cnandook Chand 4 Ind. Cas. 509 and Subbiah Pillai v. Kailasam Pillai 26 Ind. Cas. 19 , Of. also A. Gaeble v. Ramayi Ammal 1 L.W. 232. The Privy Council has laid down the scope of Section 115 in Balakrishna Udayar v. Vasudeva Aiyar 40 Ind. Cas. 650 , where their Lordships say that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against the conclusions of law or fact in which the question of jurisdiction is not involved. Here the learned District Judge has held that the application to him is but an incidental application in furtherance of the execution proceedings still pending in the District Munsif's Court. He may be wrong, but the fact that his decision is wrong is no ground for revision, See Amir Hassan Khan v. Sheo Baksh Singh 11 C. 6 : Rafique and. Jackson's P.C. No. 83 : 5 Ind. Dec. (N.S. 760, Koppaka Chandrayya v. Robertson 52 Ind. Cas. 641 per Seshagiri Aiyar, J., and Ponnurangam Pillai v. Lal Khan Sahib 37 Ind. Cas. 348 per Oldfield, J., where it was held that a wrong exercise of jurisdiction was no ground to interfere.

5. The learned Vakil for the petitioner has not been able to show me any authority to the effect that the learned District Judge was wrong in coming to the conclusion that the application before him was not a new application within the meaning of Section 48 of the Code of Civil Procedure. In fact the ruling in Muhammad Nabi Reza v. William Alfred Thomas 21 Ind. Cas. 923 seems to support the opposite view. There it was pointed out that the theory of continuation applies only where the previous application has been interrupted by reason of circumstances over which the decree holder had no control. The theory was applied in that case, and it seems to me that this is pre-eminently a case in which the theory should be applied. It cannot be said to have been owing to any circumstances under the control of the counter petitioners that the proceedings were removed under Section 63 of the Code of Civil Procedure to the Court of the District Judge.

6. The second ground urged before me is practically a repetition of the first, that the District Judge wrongly assumed jurisdiction in holding that the application before the District Munsif was continued by the application before the District Judge. I am of opinion that the District Judge is right. Section 48 of the Code of Civil Procedure says that no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years. The application before the District Judge was fresh, only in the sense that it had not been before the District Court before, for the very sufficient reason that the proceedings in which the counter-petitioners were interested were not removed to that Court till the day before the application was made to me. These are not, in my opinion, fresh proceedings within the mischief of the section. It would be most inequitable that the decree-holder, while prosecuting his remedy in the proper Court (in this case the Court of the District Munsif), where he has an execution petition pending within time, should be deprived of his remedy simply by reason of circumstances over which he had no control. The proceedings were removed to the Court of the District Judge, to which Court he makes an application at the earliest opportunity for rateable distribution.

7. For all these reasons, in my opinion, the order of the District Judge is correct and this civil revision petition must be dismissed with costs.


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