THAVASUMUTHU NADAR Vs. RAMASAMI PILLAI

JUDGEMENT

(1.) THE fifth respondent in the execution petition has filed this civil revision petition. THE first plaintiff filed a suit against defendants 1 to 4 and it resulted in a compromise decree, dated 27th February, 1941, by which the 4th defendant as well as his legal representatives should measure 62 kalams of paddy to the plaintiff and his heirs for performance of'kulithaligai' ; charity and if there is default for a continuous period of three years, the first plaintiff, first petitioner is entitled to execute the decree and recover possession of the properties. THE second petitioner is the legal representative of the deceased first petitioner. In a partition between the 4th respondent and his brother, the 8th respondent, the suit property was allotted to the share of the 5th respondent who has sold the same in favour of respondents 6 to 8. THE second petitioner filed the execution petition alleging that the 4th respondent was giving the annuity in a reduced quantity and has stopped payment for the last four years, and hence the execution petition has been filed for recovery of possession of the property as per the terms of the compromise decree. THE 5th respondent filed a counter contending that he is not a party to the compromise decree and he is not claiming any interest under the 4th respondent and he cannot be impleaded as the legal representative of the 4th respondent, and the second petitioner is not entitled to recover possession and the execution petition filed is barred by limitation. THE 7th respondent also filed a counter that they claimed the properties only under the 5th respondent and they are not the legal representative of the 4th respondent and they are not intermeddlers of the estate of the 4th respondent and hence they cannot be impleade d as the legal representatives of the 4th respondent and the execution petition filed for recovery of possession is barred by limitation, and the decree is void and unenforceable. THE executing Court overruled all the objections of the contesting respondents and held that the execution petition is not barred by limitation, and the second petitioner is entitled to recover possession of the property from respondents 5 to 8. Against this order of the executing Court, the 5th respondent has filed the civil revision petition.

(2.) THE learned counsel for the 5th respondent and the petitioner herein contended that the compromise decree is not binding on him and he is not a party to the decree and he cannot be impleaded as the legal representative of the deceased 4th respondent as he is not claiming interest in the properties through him. THE learned counsel for the 7th respondent contended that absolutely no evidence, has been let in to show that the 4th respondent committed defeault in paying the annuity and it is for the decree-holder (7th respondent herein) to establish how the execution petition filed is in time and as this has not been satisfactorily established, the matter should be remanded back to the executing court for fresh enquiry and disposal. THE learned counsel for the 7th respondent decree-holder, relying on the decisions in Maunq Sin v. Ma Tok1, and Mst. Parmeshri and others v. Mst. Atti2, contended that in respect of each default for three continuous years the decree-holder gets a right to execute the decree and recover possession and it is always open to the decree-holder to waive or condone the earlier defaults in which case the limitation would not run from the default condoned or waived, but only from the default which the decree-holder treated as a default under the decree, and the execution petition having been filed on 28th August, 1975 is well within time since the 4th defendant, stopped payment after the compromise only four years prior to 28th August, 1975.