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Swaminatha Odayar Vs. Thiagarajaswami Odayar - Court Judgment

LegalCrystal Citation
SubjectLimitation ;Civil
CourtChennai
Decided On
Judge
Reported inAIR1926Mad954; 92Ind.Cas.846; (1927)52MLJ256
AppellantSwaminatha Odayar
RespondentThiagarajaswami Odayar
Cases ReferredLtd. v. Jnanendra Nath Bose
Excerpt:
civil procedure code (act v of 1908), section 48, order ix, rule 13 - mortgage-decree both against person and property of mortgagor--execution of decree against person--limitation--execution of decree--ex parte order--application to set aside order-limitation. - .....application no. 386 of 1918 operated as res judicata in favour of the appellant and that the district munsif was wrong in dismissing the execution application which was filed on the 6th august 1921. the district munsif decided in e. p. no. 386 of 1918 that the application of the appellant was not barred by limitation. the district munsif who dealt with the present application set aside the ex parte order on no. 386 of 1918 on the ground that the district munsif who first disposed of the petition had not before him the decision of the privy council in khulna loan co., ltd. v. jnanendra nath bose 45 ind. cas. 436. it is pointed out by mr. kuppusami iyer, and very rightly too, that the district munsif was not justified in setting aside the ear parte order on e.a. no 386 of 1918 as the.....
Judgment:

1. This is an appeal from the order of our learned brother, Odgers, J. The first point urged for the appellant is that the order on execution application No. 386 of 1918 operated as res judicata in favour of the appellant and that the District Munsif was wrong in dismissing the execution application which was filed on the 6th August 1921. The District Munsif decided in E. P. No. 386 of 1918 that the application of the appellant was not barred by limitation. The District Munsif who dealt with the present application set aside the ex parte order on No. 386 of 1918 on the ground that the District Munsif who first disposed of the petition had not before him the decision of the Privy Council in Khulna Loan Co., Ltd. v. Jnanendra Nath Bose 45 Ind. Cas. 436. It is pointed out by Mr. Kuppusami Iyer, and very rightly too, that the District Munsif was not justified in setting aside the ear parte order on E.A. No 386 of 1918 as the application to set aside the ex parte order was made more than 30 days after the judgment-debtor became aware of the ex parte order against him. Against this order a revision petition was filed by the appellant and Odgers, J., has dismissed the revision petition. The order on E.P. No. 38o of 1918 passed by the former District Munsif has ceased to be in force. Therefore, there is no order now upon which the appellant can rely for his contention that the plea of limitation is barred by reason of the order on No. 386 of 1918. Therefore, we disallow this contention.

2. The next contention of Mr. Kuppuswami Iyer is that the application is not barred by reason of Section 48 of the C.P.C. The decree in this case is a combined decree both against the property and person of the mortgagor under the old Code and it has been distinctly held by the Privy Council in Khulna Loan Co, Ltd. v. Jnanendra Nath Bose (1) that a decree against the person becomes unexecutable after the lapse of 12 years from the date of the decree, in other words, where a combined decree gives relief against the property as well as the person of the mortgagor, the time for execution against the person should be calculated from the date of the decree and not from the date of the mortgagee failing to get relief by sale of the properties. In this case, the properties were sold on the 26th July 1911 and the mortgagee obtained only part satisfaction of the decree. But in view of the decision of their Lordships of the Privy Council in Khulna Loan. Co., Ltd. v Jnanendra Nath Bose 22 C.W.N. 145 (P.C.) we are unable to accept the contention of Mr. Kuppuawami Iyer that the application for the execution of the decree against the person of the mortgagor should be considered to be in time, for the reason that he could not have executed the decree before the sale of the property was found insufficient to satisfy his decree. If an order was passed after the proper had been sold, that for the balance, other properties of the mortgagor's should be proceeded against, the present application would be in time, but no such order was passed and, therefore, the application is barred by Section 48 of the C.P.C.

3. The appeal fails and is dismissed. We make no order as to costs, as the respondent did not appear.


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