C CHENCHAMMA Vs. K KUMARASWAMI NAIDU

JUDGEMENT

(1.) I have heard learned counsel on both sides on the merits of this civil miscellaneous second appeal. The only question that arises for consideration is whether the execution petition filed by the appellant before the District Munsif's court, Tiruvallur E. P. N. 466 of 1955 is barred by Limitation or barred by the provisions of Section 48, C. P. C. The course of execution proceedings is not fully depicted in the judgment of the Courts below, but, however, I shall refer to the facts as they appear and as they are set out in these judgments.

(2.) THE appellants obtained a simple money decree recoverable from the respondents and some others on 15-3-1941 in O. S. No. 546 of 1940 on the file of the District Munsif's Court, Sholinghur. He filed the petition E. P. No. 116 of 1953, in the Sholinghur Court for execution of the decree. The execution proceedings appear to have been transferred to the District Munsif's Court, Chittoor and again from the Chittoor Court to the District Munsif Court, Tiruttani due to the reorganisation of States whereby the territorial limits of the Sholinghur Court became part of the Madras State. It also appears that the appellant was prevented from executing the decree in respect of the property within the territory of tiruvallur Munsif because of the Madras Ordinance V of 1953 and Madras Act V of 1954. The execution proceedings were, however, transferred from the Tiruttani court to the Munsif's Court, Tiruvallur, on 7-8-1955. E. P. No. 466 of 1955, from out of which this second appeal arises, was filed in the Tiruvallur Court on 25-81955. The question is whether this petition offends the provisions of Section 48, C. P. C.

(3.) THE order of the learned Subordinate Judge holding that the appellant (decreeholder)is disentitled to execute the decree as twelve years had elapsed from the date of the decree, viz. , 15-3-1941, does not appear to be sound as the learned judge failed to take into account the provisions of Madras Act I of 1955. I shall now refer to the relevant statutory provisions. Section 48, C. P. C. is as follows: