RAVIVARMA THIRUMULPAD Vs. JOSEPH

JUDGEMENT

(1.) Two members of a Kshatriya family filed a suit to remove the Karnavan and for setting aside several alienations made by him. The Court found that the sale deed in favour of the 5th defendant was supported by consideration and necessity to the extent of Rs. 5,443 and odd and on payment of the same the plaintiff was allowed to recover possession of certain items of properties. Some of the alienations were set aside while others were upheld. This decree was passed on 1-12-1112 (corresponding to 16-7-1937). Defendants 4 and 11 who remained ex parte got the suit restored, and a second decree dismissing the claim against them was passed on 29-12-1113 (13-8-1938) The suit had been filed in forma pauperis and the State had been allowed to realise the court fees from the plaintiffs and their rights over the properties. The plaintiffs did not take any steps in execution. The State had filed an execution petition on 13-3-1113 and that was dismissed on 21-5-1113. Some of the other defendants had filed execution applications claiming the costs decreed in their favour. Without taking any steps in execution the plaintiffs two in number filed on 30-7-1116 D. R. Petition No. 201 of 1116 under S.16 of the D. R. Act of 1116, for settlement of their assets and liabilities and for giving them 1/4 of the family properties. Though two persons filed it, one of them died pending investigation and later on the remaining petitioner also died and that petition came to be dismissed on 8-12-1125 (24-7-1950). After all these the last surviving member's husband got himself impleaded in the case and filed the present execution application on 29-5-1951 (15-10-1126). On the objection of some of the defendants, the lower court held that the execution filed by the additional plaintiff was barred by limitation and this appeal is by him against that order.

(2.) The appellant's learned Advocate stated that the petition under S.16 of the D. R. Act was pending from 30-7-1116 to 8-12-1125 when it was dismissed. He also argued that this petition could be taken as a step in aid of execution as contemplated in Art.182 of the Limitation Act and so the execution is not barred by limitation. This contention cannot be accepted for Explanation II to Art.182 says that the proper court mentioned in the earlier portion of the Article means the court whose duty it is to execute the decree or order. ' The court which passed the decree or the court to which the parent court transfers it for execution is the proper court to execute the decree. The D. R. Act petition cannot be taken as a petition in execution as it was not filed before the 'proper court". It was filed in the court specially empowered to deal with certain matters referred to in S.16 to S.21 of the D. R. Act. Those were self contained provisions and so that court cannot be considered to be a court where an application to execute a decree could be filed. It had been laid down by a Division Bench of the Madras High Court in Rarichan v. Kunhamu, AIR 1934 Mad. 392 , that the insolvency court which was entirely a creature of the Provincial Insolvency Act was a different court from the court which was to execute a decree obtained independently of the Insolvency Act, and that the mere fact that the Judge who was the same person would not make the two courts the same. That was the principle followed in Nandlal v. Ramdatta Hiralal, AIR 1941 Nag. 60 also. To us it appears to be the correct principle that is laid down in those cases. So, any petition filed in the D. R. Court would not be taken to be a petition to execute the decree. It will also not be a step in aid of execution. This arguments goes.

(3.) It was next contended that the period of pendency of the D. R. Petition should be excluded under S.14(2) of the Limitation Act. If a proper petition is presented before the D. R. Court, that court would be competent to go into that question there and it will not dismiss it for want of jurisdiction. So the period of the pendency of the D. R. A. petition could not be excluded. Incidentally it may be mentioned that the D. R. A. petition itself was incompetent as it was filed by two individuals on behalf of the family. That period also cannot be excluded. It was seen that there was a stay of execution of the present decree from C. R. P. 1047 of 1117. That covered a period of two years and 21 days. Even excluding that period it would be seen that no petition for execution was filed within six years of the decree. It is, therefore, evident that the execution application filed was barred by limitation. The view of the lower court is correct. We confirm the order of the lower court and dismiss the appeal with costs.