ARUMUGAM CHETTIAR Vs. V KALYANASUNDARAM PILLAI

JUDGEMENT

(1.) The only question involved in this appeal is whether the application for execution of the decree in O. S. No. 92 of 1949, on the file of the Sub-Court, Tuticorin, is barred by limitation. The suit was laid against the respondent and his wife Aruna-chalathanimal as the second defendant for recovery of certain monies due on dealings, which the appellant had with the former. Arunachalathammal was impleaded as a guarantor. On 24-11-1951, the Subordinate Judge, Tuticorin, Passed a decree for a sum of Rs. 34,479-6-2 and costs, against the appellant dismissing the suit against Arunachala- . thammal with costs. As no statement of costs was filed on behalf of Arunachalathammal, those costs were not taxed. Nevertheless, the appellant filed A. S. No. 940 of 1952 in this court, challenging the validity of the decree in so far as it directed costs to be paid by the appellant to Arunachalathammal. That appeal was dismissed on 1411-1956. In the meanwhile, the appellant had applied on 31-8-1954 for execution of the decree against the respondent. That application was dismissed on 8-2-1955. On 4-3-1958, the appellant filed an execution application for realisation of the amount due under the decree by arrest of the respondent. The learned Subordinate Judge dismissed the application as barred by limitation. Hence this appeal.

(2.) As the execution petition, out of which this appeal arises, was filed more than three years after the date of the final order in E. P. No. 64 of 1954, the decree-holder could not invoke the Provisions of Article 182(5) in his favour.

(3.) Before the learned Subordinate Judge, it was contended that the appropriate Article to apply in the Present case would be Article 182 (2) of the Limitation Act, and, as the appeal against the decree for cost in favour of Arunachalathanimal was dismissed only on 14-11-56, the present application was claimed to be in time. This contention was rejected by the learned Subordinate Judge for the reason that the respondent, who was the first defendant in the suit, was not concerned in the appeal, the appeal being restricted to the decree in favour of the second defendant alone. Support sought for this view in the decision of a Full Bench reported in Srivaramachari v. Anjaneya Chetty, (FB), where it was held that the term "appeal" referred to in Article 182 (2) of the Limitation Act should receive a restricted meaning, and would mean only the decree of the appellate court which was sought to be executed. As stated earlier, the claim in the present case was against two defendants. There was a singlo decree, though such decree comprised two parts, (1) a direction in favour of the appellant against the. respondent for payment of Rs. 34,479-6-2, and (2) a direction in favour of the second defendant for costs to be paid by the appellant. It was the latter part of the decree that was the subject-matter of the appeal to this Court.