VALLI Vs. MADHAVAN

JUDGEMENT

(1.) The question raised in this case is one of limitation for execution of the decree. The matter arises in execution and the judgment debtor contends that the execution application pursuant to which the execution is being taken out is barred under Art.182 of the Limitation Act, 1908; that being the Act applicable to the case. The decree was passed on 18-7-1952. E.P. 308 of 1958 was filed by the decree holder for recovery of mesne profits and costs in a decree for partition. This petition was dismissed on 25-8-1968. The decree holder died subsequently. His son filed E. P. No. 404 of 1961 on 15-3-1961 for executing the decree. This was dismissed on 5-1-1962 for non production of succession certificate, for which time was granted by the Court. On 10-3-1964 the present execution petition, which is contended to be barred by limitation, was filed by the decree holder's son along with the succession certificate, as EP. No. 251 of 1964. It is this application which is said to be beyond the period of three years of the date of the order in EP. No. 308 of 1958, and therefore, barred under Art.182 of the Limitation Act, 1908. If the execution petition filed by the decree holder's son as EP. No. 404 of 1961 is taken as an application in accordance with law or as a step in aid of execution, then there will be no limitation for the execution of the decree, as the present execution petition (EP. No. 251 of 1964) would be within three years of the date of the order on that petition. Therefore, the only question is whether the application for execution filed by the decree holder's son on 15-3-1961 without a succession certificate was an application made in accordance with law within the meaning of Art.182(5) of the Limitation Act, 1908. Though the present execution petition is filed on 19-3-1964, i.e., after the coming into force of the Indian Limitation Act, 1963, S.31 of that Act provides that, if the period for filing an application under the Limitation Act, 1908 expired before the commencement of the present Act, this. Act would not apply and that is why the matter falls to be decided by the provisions of the Indian Limitation Act, 1908.

(2.) The contention raised on behalf of the judgment debtor found favour with the execution court, which held that execution was barred. But this was reversed in appeal and hence this second appeal at the instance of the judgment debtor.

(3.) Counsel for the judgment debtor appellant relies on S.214 of the Indian Succession Act, 1925 (Act 39 of 1925) to contend that a petition for execution, in order to be noticed by the Court, must be accompanied by a succession certificate. Counsel rests his objections to the execution on two grounds, namely, (1) that EP. 404 of 1961 was not one in accordance with law, by reason of the failure to produce the succession certificate along with the petition for execution and (2) that the order on EP. 404 of 1961 dated 5-1-1962 was one holding that the decree holder cannot execute the decree without a succession certificate, and therefore, that order must be res judicata to contend that EP. 404 of 1961 was one in accordance with law. In answer, the respondent's counsel urges that an application for execution in order to be in accordance with law has only to satisfy the provisions of the Code of Civil Procedure relating to execution and that EP. No. 404 of 1961 was one which satisfied that requirement and hence for the purpose of Art.182(5) of the Limitation Act, 1908 it could not be said that the application was not in accordance with law. In answer to the plea of res judicata the answer of the respondent is that the order dated 5-1-1962 dismissing EP. 404 of 1961 does not hold that the said EP. was not in accordance with law, but is only to the effect that since the succession certificate, for the production of which time was granted, had not been produced, the court could not proceed with the execution of the decree, and therefore, such an order would not bar the contention of the decree holder now that EP. 404 of 1961 was one in accordance with law, if actually it was one such.