MOHAMMAD HUSSAIN Vs. GANGA NAICKEN ALIAS GANGAMA NAICKEN

JUDGEMENT

(1.) THIS is an appeal under the Letters Patent from the judgment of Ramaswami, j, in CMSA No. 102 of 1957 with his leave. It arises in the execution of the decree passed in O. S. No. 128 of 1945 on the file of the Subordinate Judge of tiruchirepalli on 16-3-1946. The material part of this decree runs as follows :

(2.) E. P. No. 278 of 1946 was filed by the decreeholder for delivery of possession in pursuance of this decree. His petition was dismissed on 24-2-1947, for non payment of batta. On 16-3-1949, an application was filed under Or. 20 rule 12 C. P. C by the plaintiff IA No. 476 of 1949, for ascertaining mesne profits and payment of the same. That petition was first dismissed, but eventually the learned district Judge of Tiruchirapalli passed a decree on 10-3-1953 for Rs. 1310-1-0 as future mesne profits. On 13-11-1954, the original decreeholder's legal representatives, the present appellants before us, filed EP No. 64 of 1955 for delivery of possession and for attachment and sale of moveables of the defendants in execution of the decree. The reliefs sought in this execution petition were realisation of the amount due for mesne profits and subsequent costs by attachment and sale of the moveables of the defendants and for delivery of properties decreed in favour of the second plaintiff (first petitioner) on behalf of both the petitioner. Subsequently the execution petition was confirmed to the relief of possession. The learned Subordinate Judge of Tiruchirapalli dismissed the execution petition as barred by time and his decision was confirmed by the learned district Judge of Tiruchirapalli on appeal. Then followed the civil miscellaneous second appeal (102 of 1957) filed by the decreeholder's legal representatives, which was also dismissed by Ramaswami, J. Hence this appeal.

(3.) MR. T. M. Krishnaswami Aiyar, learned counsel for the appellants, contended that there could only be one decree in a suit and in this case that decree in its complete form must be deemed to have been passed only on 10-3-1953, when the learned District Judge passed a decree for mesne profits. That would be the date from which time would run, and as the present E. P. , was filed in 1954 it was well within time. Though there was a prior execution petition filed to execute the decree for possession and that was dismissed in 1947, the decreeholders could file a new execution petition without any reference to the previous petition for the execution of the complete decree, which must be deemed to have been passed in 1953. Though he cited to us several decisions of this court, viz, Vydianatha Aiyar, v. Subramania Patter, ILR 36 Mad 104, Kannaimmal v. Balakrishna, AIR 1935 Mad 557, Lakshminarasimham v. Suryanarayana, 1947-2 Mad LJ 443 : (AIR 1948 Mad 246), Basavayya v. Guruvayya, and Sivaramachari v. Anjaneya chetty, the only decision which requires our consideration is the decision in ILR 36 Mad 104. In none of the other cases did the point which directly arises before us in this appeal was dealt with either directly or indirectly. AIR 1935 mad 557 was a case where there was an appeal and clause (2) of the Third column of Art. 182 of the Limitation Act specially provided that where there is an appeal, time would run only from the date of the appellate decree. The scope of cl. (5) of the third column of Art. 182 of the Act was discussed in 1947-2 Mad LJ 443 : (AIR 1948 Mad 246 ). Neither of the two decisions in and has anything to do with the question, which falls for decision in this case.