VELAYUDHAN THAMBI Vs. ANANDHASUBRAMONIA IYER

JUDGEMENT

(1.) This appeal arises out of execution proceedings. The only question in the appeal was whether or not the execution of a money decree in favour of the father of Respondent 1-of which Respondent 2 obtained an assignment was barred by limitation. When the appeal came up for hearing before a Division Bench that Bench passed the following order: "In view of the importance of the question of law involved in the case this will be placed before a Full Bench for bearing and disposal." The case has accordingly been placed before this Full Bench.

(2.) The appellants are the legal heirs of defendant I in the suit. He was the karnavan of a Marumakkathayam tarwad. He had executed a promissory note in favour of the father of Respondent I. A suit was brought on foot of it before the Nagercoil District Court in O.S. 105 of 1103 claiming relief both against Defendant 1 and against his tarwad. While defendant 1 remained ex parte the other members of the tarwad impleaded in the suit as defendants 2 to 8 contested it. Their contention was that the debt was not incurred for tarwad necessity and that the tarwad could not therefore, be made liable for the debt. As defendant 1 did not enter appearance or contest the suit, the plaintiff applied that a preliminary decree be passed against him. This was on the date of the first hearing. The court acceded to that request and gave such a decree on 7-8-1104. That decree stated that it was only a preliminary decree and that the question whether the tarwad was liable for the debt will be decided later on. The final decree was passed on 2-4-1106 and by it the suit was dismissed with costs as against the tarwad. The plaintiff preferred an appeal against the final decree to the High Court in A.S. 13/1107, but the High Court dismissed the appeal This was on 10-2-1114.

(3.) The execution petition out of which this appeal arises was filed on 26-5-1121. It sought to enforce the personal relief granted against defendant 1 as per the preliminary decree dated 7-8-1104, Defendant 1 had died while A.S. No. 13 of 1107 was pending in the High Court. His legal heirs who were brought on record in his place raised the objection that the execution was barred by limitation. The execution court overruled the objection basing its decision on Nagendra Nath v. Suresh AIR 1932 P. C. 165. The legal heirs of Defendant 1 have hence preferred this appeal.