PUTTAMMA Vs. CHIKKA HANUMIAH

JUDGEMENT

(1.) This is an appeal against the decision in R.A. 145 of 1947 48 on the file of the Additional Subordinate Judge, Bangalore reversing that of the second Munsiff, Bangalore in Execution No. 317 of 1946-47.

(2.) The point for consideration in this appeal is whether Execution Case No. 317 of 1946/47 referred to above was rightly dismissed as barred by tim.e This execution case filed on 27th January 1947 more than 12 years after 27th November 1933 the date of the decree sought to be executed, and more than 3 years after the dismissal of previous Execution Case No. 802 of 1933-34 on 23rd November 1984, is clearly barred both under Section 48, Civil, P.C. as well as under Art. 182, Limitation Act unless it is construed to be continuation of the latter execution case.

(3.) The short point for consideration is, therefore, whether Execution No. 317 of 1946-47 can be construed to be a continuation of Execution No. 802 of 1933-34. The latter case was dismissed on 23rd November 1934 as decree-holder failed to file a "verified statement," but it is now argued that decree-holder had died before the execution application was dismissed and this fact is not denied. It is contended that Execution Case No. 802 of 1933-34 should not have been dismissed and kept pending till decree-holder's legal representative applied to be brought on record and the decision in Sundarabalakdiresa v. Avudai Ammal, A.I.R. (29)_ 1942 Mad. 495: (202 I C. 211) has been relied on. It has been held in that decision that "where the decree-holder dies pending an execution application the Court has no jurisdiction to pass any order dismissing the execution application. The application ought to be kept on file awaiting for any legal representative to continue it." It is contended that Execution No. 802 of 1933-34 was wrongly dismissed and it must be considered that it was dismissed for statistical purposes only and that it can revived by a legal representative of the decree-holder. the decisions reported in 6 Mys. L. J 265. 19 Mys. L. J. 82 and 21 Mys. L. J. 307 support the contention that execution cases dismissed for no fault of decree-holder could be revived even more than 12 years after date of decree.