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Doorvas Seshadri Iyer Vs. Ananthayee and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1918Mad401; 42Ind.Cas.671
AppellantDoorvas Seshadri Iyer
RespondentAnanthayee and ors.
Cases ReferredParthasaradhi Appa Rao v. Maka Venkatadri Appa Rao
Excerpt:
limitation act (ix of 1908), schedule i, article 182 (5) - execution--attachment application to court which ceased to exercise jurisdiction over property,--whether application in accordance with law--jurisdiction--petition returned and not represented, whether pending petition. - .....point was raised by the learned pleader for the appellant that the order of the 3rd may 1912 passed by the madura court, to the effect that the application was to be sent for execution, has the effect of resjudicata inasmuch as it was acquiesced in by the other side. the order was passed in the absence of the respondents and the question of acquiescence was not raised before any of the lower courts. we think that it is too late to raise it now.3. it was also suggested that execution petition no. 118 of 1912 sled in the court of melur on the 2lst november 1911 might be still deemed to be pending, but it is impossible to assume any such thing inasmuch as the petition was returned by that court and it was afterwards presented to another court and proceeded with there.4. in the result.....
Judgment:

1. The question for decision was whether the petition dated 3rd April 1912 which was presented to the Madura Court, was in accordance with the law so as to save limitation The jurisdiction over the properties had been transferred before the date of the application from the Madura Court to the Melur Court. We have a recent ruling of thin Court reported as Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899. 8: (1914) M. W. N 205. which concludes the point. That decision has been followed in several other decisions of this Court. Penugonda Rattam v. Korasika Thatha 35 Ind. Cas. 237. Vadivelu Pillai v. Maruda Pillai 26 Ind. Cas. 413., Parthasaradhi Appa Rao v. Maka Venkatadri Appa Rao 27 Ind. Cas. 88: (1914) M. W. N. 896. It may be taken to be settled that when the properties with respect to which execution is sought have been transferred to the jurisdiction of another Court, it is that Court that is competent to entertain all applications for execution, and not the Court within whose jurisdiction the properties originally were and which had passed the decree.

2. Another point was raised by the learned Pleader for the appellant that the order of the 3rd May 1912 passed by the Madura Court, to the effect that the application was to be sent for execution, has the effect of resjudicata inasmuch as it was acquiesced in by the other side. The order was passed in the absence of the respondents and the question of acquiescence was not raised before any of the lower Courts. We think that it is too late to raise it now.

3. It was also suggested that Execution Petition No. 118 of 1912 Sled in the Court of Melur on the 2lst November 1911 might be still deemed to be pending, but it is impossible to assume any such thing inasmuch as the petition was returned by that Court and it was afterwards presented to another Court and proceeded with there.

4. In the result the appeal is dismissed with costs. The memorandum of objections is also dismissed with costs.

5. Appeal against Appellate Order No. 24 of 1917 follows and is dismissed with costs.


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