A S K KRISHNAPPA CHETTIAR C T C T CHIDAMBARAM CHETTIAR SOMASUNDARAM ALIAS NACHIAPPA CHATTIA VR A U UMAYAL ACHI Vs. S V V SOMIAH NAVNIAPPA CHETTIAR:N SV V NACHIAPPA CHETTIAR:N SV V NACHIAPPA CHETTIAR:S V V SOMIAH NAVNIAPPA CHETTIAR

JUDGEMENT

(1.) This appeal and civil appeals Nos. 104, 106 and107 of 1961 arise out of execution proceedings in four different suits but as they involve a common question they were heard together by the High Court and by us. That question is whether the execution applications out of which these appeals arise are within time.

(2.) We propose to treat C. A. No. 105 of 1961 as a typical case. The relevant facts thereof are briefly these:

(3.) In O. S. No. 46 of 1943 one Ramanathan Chettiar instituted a suit against one Venkatachalam Chettiar in the court of the Subordinate Judge of Devakottai, for the recovery of a sum of Rs. 10,285/- due on promissory note dated November 20, 1942 with interest thereon. He eventually obtained a decree for the full claim. In so far as the second defendant is concerned, he was made liable for the decretal amount to his extent of the interest in the joint family property of himself and his father. The plaintiff assigned the decree in favour of Chidambaram Chettiar, who is the appellant in C. A. No. 105 of 1961. He filed an execution application but the execution proceedings commenced by him proved infructuous because the first defendant was adjudicated an insolvent on February 27, 1945. On September 9, 1946 a composition of the debts due from the insolvent and his son, the second defendant, was arrived at. To the deed of composition the second defendant was also a party though he was not adjudicated an insolvent. Under that deed the creditors, including the four appellants before us agreed to take 40% of the dues, except one creditors who was to be paid a little more. The defendants, it may be mentioned, had extensive money-lending business in Burman and the bulk of their property was situate in that country. Under the composition arrangement, the entire property of the defendants, both in India and in Burma was to vest in four trustees, one of whom was the insolvent, that is, the first defendant to the suit. Two of the trustees were the present appellant, Chidambaram Chettiar and Krishnappa Chettiar, appellant in C. A. No. 104 of 1961. The fourth trustee was an outsider. The total indebtedness of the defendants, as ascertained on the date on which the composition was effected was Rs. 216077-4-8 but it was reduced under the arrangement to Rs. 86430-13-3. There are four schedules to the composition deed. Schedule A sets out the names of the creditors and the amounts due to them, Schedule B sets out the properties of the defendants and Schedules C and D set out the properties at Leiwo and Meola respectively in Burma. The deed provides for the payment of the reduced amount by the trustees to different creditors from the income of the properties or by sale or mortgage of those properties within four years from April 14, 1947. The deed further provides for the extension of this time limit "according to exigencies and necessity at the discretion of the first two trustees" i.e., the first defendant and the appellant and Chidambaram Chettiar. The arrangement also provides for payment of interest at 5 annas per mensem in respect of the amounts due on the decrees and 4 anna per mensem in respect of other outstandings as from April 14, 1947. The composition contemplated the income or sale or mortgage of the Burma property, in the first instance. Clause 10 which deals with this matter runs as follows: