RANGAMMA Vs. RANGAMMA

JUDGEMENT

(1.) This is a decree-holder's appeal. She filed Execution Case No. 26 of 48-49 for enforcement of the decree for maintenance against the charged properties. Judgment-debtor 4 pleaded that the application is barred by time. Both the lower Courts have upheld his plea and dismissed the application. This appeal is filed against the order of the first appellate Court.

(2.) The facts leading to the case, briefly stated, are as under. In O. S. No. 245 of 40-41, filed by the plaintiff, a decree was passed ex-parte on 10-1-1942 against all the defendants for a sum of Rs. 600/- being arrears of maintenance claimed and future maintenance was awarded at Rs. 125/per annum; the decree amount was made a charge on the plaint schedule properties. Subsequently, defendant 1 applied to the Court for setting aside the ex parte decree and the decree was set aside only as against defendant 1 leaving the decree intact as against the others. The plaintiff and defendant 1 then entered into a compromise and a decree in terms of the compromise was passed on 26-1-1943, one of the terms being that the plaintiff should be delivered Item 3 of the plaint schedule absolutely in lieu of maintenance. The said property (Item 3) was in the possession of defendant 4 as mortgages. (For the sake of convenience, the decrees will be referred to hereafter as "the ex parte decree" and "the compromise decree" respectively).

(3.) The decree-holder filed an application for execution in Execution Case No. 241 of 43-44 on 4-11-1943 which was dismissed on 27-10-1944. Again, another application Execution Case No. 394 of 45-46 was filed on 21-3-1946 and was dismissed on 10-1-1947. The present execution petition was filed on 12-1-1948. The first two applications were for enforcing the terms of the compromise decree. Judgment-debtor 4 having raised the objection that the terms of the compromise decree were not binding upon him, it was held by this Court in the final appeals in both the cases viz., 'S. As. Nos. 528 of 1944-45 and 437 of 1947-48', that defendant 4 was liable only under the ex parte decree and the terms of the compromise decree were not enforceable against him. It need hardly be stated that judgment-debtor 4, the contesting respondent here, and the other judgment-debtors were all made parties to both the applications. The application now under consideration is for the enforcement of the terms of the ex parte decree. It is contended that the application is barred by time.