SIVARAMACHARI Vs. BAYYA ANJANEYA CHETTY

JUDGEMENT

(1.) The question which falls for decision on this reference concerns the interpretation of Article 132, col. 3 and Clause (2), Limitation Act. The facts material for a discussion of this question are as follows: The appellant before us filed a suit (O. S. No. 479 of 1989) in the Court of the District Munsif of Chittoor against one Bayya Subbiah Chetti. During the pendency of the suit, the respondent filed I. A. No. 265 of 1941 stating that the defendant was dead and praying that he may be brought on record as his legal representative. On objection by the plaintiff, the Court held that the death of the defendant was not proved and dismissed the application. Thereupon the advocate on record reported no instructions and the suit was decreed ex parte on 27-3-1941. The respondent filed a civil revision petition to this Court (C. R. P. No. 1834 of 1941) against the order dismissing his application I. A. No. 265 of 1941 and that petition was dismissed on 6-3-1943. The appellant as decree-holder filed an execution petition on 17-7-1944 impleading the respondent as party as he had meanwhile obtained a probate in respect of the will left by the defendant Subbayya Chetti. This execution petition was dismissed as not pressed on 2-121944. On 23-12-1946 the appellant filed another execution petition out of which this appeal has arisen. Both the District Munsif of Chittoor and the District Judge dismissed the application as barred by limitation on the ground that the first execution petition filed on 17 7-1944 was itself barred by limitation as having been filed more than three years after the date of the decree, namely, 27-3-1941. The decree-holder appeals.

(2.) The appeal originally came before Horwill J. who found a conflict of views in the decided cases as to the interpretation of the relevant provision of the Limitation Act and as the question was an important one which might frequently arise and which required an authoritative ruling, he considered it desirable that the appeal should be disposed of by a Bench. It was then posted before Satyanarayana Rao and Chandra Reddi JJ. who for the very reasons given by Horwill J. considered that the case should be heard by a Full Bench.

(3.) Article 182 in so far as it is material is as follows :