VASUDEVAN UNNITHAN Vs. KARTHYAYANI AMMA

JUDGEMENT

(1.) This appeal by the 3rd defendant, now continued by his legal representatives, defendants 5 and 6, is against execution of a decree for maintenance obtained by the wife and children of the 1st defendant against him and his properties. The decree is dated 12-6-1113 and the first execution application filed on 6-6-1114 is conceded to be still pending. On 5-3-1958 the decree holders filed an amended execution petition with a schedule of properties which have not been sought to be proceeded against before. The appellant contended that the application of 1958, beyond 12 years of the date of the decree, is barred by limitation and the properties sought to be proceeded against are sub tarwad properties of the defendants which are not liable for a decree against the 1st defendant. Those objections have been overruled by the executing Court, and the same has been confirmed in appeal by the Subordinate Judge. Hence this second appeal.

(2.) Counsel for the decree holders points out that parties were at issue in regard to the executability of the decree against certain properties that have been fraudulently transferred by the judgment debtor to his sister and her children. By an order of 12-7-1121 those properties have been found liable to be proceeded against in execution. Certain properties have been attached before judgment, and in regard to them there may not be limitation, as attachment before judgment , becomes an attachment in execution when an execution petition is filed. But in regard to other fresh properties sought to be proceeded against under the execution petition of 5 3 1958, the E. P. has to be found beyond time. As has been observed by the Supreme Court in Pentapati China Venkanna v. Pentapati Bangararaju ( AIR 1964 SC 1454 ), it would be a fresh application that asks for , a relief against parties or properties different from those proceeded against in the prior proceedings, and therefore in regard to such properties the amended E. P. of 5 3 1958 has to be held a fresh E. P. and that having been filed far beyond the expiry of 12 years from the date of the decree has to be held barred by limitation under S.48, C. P. C. Counsel for the decree holders contended, relying on Marulasiddappa v. Lakshmipathi (AIR 1950 Mysore 64 FB) and Divakaran Nambudiripad v. Koodalur Manakkal Brahmadathan Nambudiripad ( AIR 1945 Mad. 241 ), that when no schedule of properties is filed along with the E. P. it is open to the decree holder to file a schedule of properties to be proceeded against in execution after the expiry of 12 years of the date of the decree, and that, since no schedule of properties had been filed along with the E. P. of 6-6-1114, the decree holders are entitled now to put in a schedule of properties for purpose of execution. I am unable to agree with this contention, which is to the effect that if a party does not comply with the provisions of the Code of Civil Procedure, in drafting his execution petition, he can override the provisions of limitation law here S.48, C. P. C. and will have larger rights than one who has complied with the law. Counsel concedes that if a schedule of properties has been filed along with the E. P. it would not be open to the decree holders to file another schedule of properties after 12 years of the decree. But if no such schedule has been filed along with the E. P. it is open to him to file a schedule after any length of time, while the E. P. was on the file. The plea claims a premium for non compliance with the law and cannot therefore be appreciated. Further, in this case it is obvious that certain properties are being proceeded against under the E. P. viz., those that have been attached before judgment, which on the presentation of the application for execution, became properties attached in execution, there being a prayer to proceed against properties of the judgment debtor in the E. P.

(3.) In the result, the order of the Courts below is reversed and the amended E. P. is held barred by time in regard to properties not covered by the attachment before judgment or by the order of 12-7-1121. In the circumstances of this case, I make no order as to costs in this second appeal.