VENKATARAMANASWAMY PERMANENT BHANDAR LTD Vs. IJARI PADMARAJAPPA

JUDGEMENT

(1.) The appellant-decree-holder obtained a decree on 22-4-1955 against the respondent-judgment-debtors in O.S.No.138/55 on the file of the District Munsiff, Hospet, for the recovery of a sum of Rs.2,277-10-0. The decree-holder has sued out execution for the recovery of Rs.4,049-43 paise in E.P.No.138/65 before the Munsiff at Harapanahalli. The judgment-debtors amongst other objections, contended that the present execution petition i.e., E.P.No.138/65 filed on 15-8-1965 is barred by time. It may be mentioned that the decree-holder had sued out execution in E.P.No.670/57 and that was dismissed on 16-4-1958. The second application was made on 7-10-1960 and came to be dismissed on 5-12-1960. The next application was on 6-7-1962 and came to be dismissed on 26-8-1963. There was an intermediate application registered as E.P.95/64 which was filed in a Court which the decree-holder thought was having jurisdiction to execute the decree without obtaining transfer of the same from the Court which passed the decree. Therefore, it was also dismissed on 9-4-65 for want of jurisdiction. The present execution petition was filed on 5-8-1965.

(2.) The question of limitation arises in view of the contention that the applications filed on 7-10-1960 and dismissed on 5-12-1960 and the petition dated 6-7-1962 dismissed on 26-8-1963 were made by the President of the decree-holder-appellant (Permanent Bhandar Ltd.). It is submitted and it is not disputed that the appellant-decree-holder was represented by its Secretary in the Original Suit; therefore, it is only the secretary who could file a valid execution petition; as the President has made the petition, it is necessary to show that he had the authority to make the petition. The trial Court has held that the petition is barred by time for two reasons, i.e., that the application is not made by the Secretary and that the applications dated 7-10-60 and 6-7-62 had not been registered as execution petitions and they would not serve as steps-in-aid by execution and save time for the present execution petition. Therefore, the learned Munsiff dismissed the execution petition.

(3.) Against the order of the learned Munsiff, the decree-holder preferred Appeal Suit No. 26(66 before the Civil Judge, Bellary. The learned Civil Judge disagreed with the view of the learned Munsiff that the orders passed in the two execution petitions referred to above were not final orders. He held that they were final orders even though the execution petitions had not been numbered and registered. He placed reliance on the full Bench decision in Subramania Chettiar v. Narayana, AIR 1955 Mad. 615, FB. But, he agreed with the view of the trial Court that the President cannot make the petition as the decree was obtained by the secretary. It appears to me that both the Courts have ignored the provisions of O. 21, R.11,CPC. Or.21, R.11(2) CPC. provides that " every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely." The learned Civil Judge observes that: "Evidently, the president cannot be said to be the person in whose favour the decree has been passed nor can it be said that he is the person authorised to take out execution. He is thus not competent to execute the decree". As provided in Rule 11 (2) of Or.21 any person proved to the satisfaction of the Court to be acquainted with the facts of the case can make a valid execution petition. In this case, it is undisputed that the President has made the execution petition. It would be correct to say that it is the appellant-Corporation that has obtained the decree represented by its Secretary and now execution is sued out by the President of the Corporation. Prime facie it ca i be taken that the President is a person acquainted with the facts of the case. Therefore, he is competent to make the petition. If once the petition is made by a person competent to do so. any order passed thereon would be a final order as held by the lower appellate Court, extending the period from the date of the order under Art.182(5) of the Limitation Act. The question whether the President has authority or not is quite different from being a person acquainted with the facts of the case. The only way in which the matter should br looked at is whether the petitions made on 7-10-1960 and 6-7-1962 are intended to further the execution of the decree so as to serve as steps-in-aid of execution. It is apparent that these petitions are filed with a view to further the execution of the decree. Therefore, it appears to me that the application made on 7-10-1960 which was disposed of on 5-12-60 saves limitation in respect of the application made on 6-7-1962 which was disposed of on 26-8-1963. This again saves limitation so far as the present execution petition is concerned. Therefore, the view taken by the lower Courts that the petitions are barred by time or that they are not maintainable, cannot be sustained.