MOHANAMBAL ARNMAL Vs. RAMAMOORTHY

JUDGEMENT

(1.) This civil revision petition at the instance of -the second defendant in 0. S. No. 211 of 1964, District Munsif s Court, Trivelre, is directed against the order passed by the court below in E. P. 399 of 1979 holding that the execution petition is not barred by limitation. 0. S. 211 of 1964 District Munsifs Court, Trivellore, was instituted by the first respondent herein against the petitioner and the second respondent herein who vere implea&d as defendants 2 and 3 and another Bagyammal, who was impleaded as the first defendant therein, for the recovery of a sum of Rs. 3216.34, being the amount due on a promissory note dated 9-5-1951 executed by one Sanjeevi Naidu, father of the petitioner and the second respondent and the husband of Bagyammal. On 31-7-1965, the Additional Districi Munsif, Trivellore, dtsmissed that suit; but on appeal in A. S. 342 of 1965 District Court, Chingleput, the learned District Judge allowed the appeal on 5-2-1966. In the course of the judgment in A, S. 342 of 1965, the learned District Judge took note of the fact that the petitioner and the secorid resporident in their capacity as the legal representatives of Sanjeevi Naidu had obtained a decree in 0. S. 109 of 1962, Aub Court, Cbingleput, against one Rajararn Naidu and stated that the first respondent herein has, in the first instance, to proceed against the decree in 0. S~ 109 of 196Z Sub Court, Chengalpatt% and if for any reason, he is not in a position to realise it, onlV then it will be Open to the first respondent to proceed against the assets of the der-eased Sanjeevi Naidu in the bands of the petitioner and the second respondent herein. r1be decree which was granted in favour of the first responclent was in these terms:-

(2.) On 22-9-1979, the first respondent herein filed E. P. 399 of 1979 in 0. S. 211 of 1964, against the petitioner and the second respondent herein, praying for the attachment and sale of certain properties for the realisation of a sum of Rs. 70135.87 stated to be due under the decree in 0. S. 211 of 1964. In the counter filed by the petitioner, she raised an objection t hat the execution petition Is barred by time. The executing Court, Considering, this objection raised by the petitioner, held that since the petitioner end the serend respondent herein did not take any steps for the pmsizix of a final decree is 0. S. 1" of 1M and he allowed the rights there under to be bar red, the first respondent was not in a Position to take stem to execute the decree as per the direction in the decree of the District Court in A. S. 342 of 1965 and therefore, the contentim of the petitioner that the execution petition filed by the first respondent is barred by ftaitation is not acceptable. In this view, the objection raised by the petitioner was overruled and the properties were directed to be attached. it is the corectness of this order that is challenged in this civil revision petition.

(3.) The main contention urged by Mr.Bliavanantham, learned counsel for the petitioner in support of the civil revision petition is that the execution petition filed by the first respondent herein on 22-9-1979 to execute the decree in 0. S. 211 of 1%4 is barred un4er Art. 136 of the Limitation Act 1.963. According to the learned counsel, even taking into account on date of the decree for purposes of execution as 21-11-1%6, when second appeal No, 141& of 19" was dismissed by this court, the F~ P. having been filed on 22-9-1979 beAmd 12. years from 2.1-11-1966 would be barred. In addition, the learned cotu2sel for the petitioner contended that though under Cl. (2) of the decree in A. S, 342 of 1965, the first respondent was directed to proceed against the decree in 0. S. 109 of 1962, Sub Court, Chengaipatti~ " that only thereafter it would be open to him to proceed against the assets of deceased Sanjeevi Naidu in the hands of the petitioner and the second respondent, yet,that would not make any difference in so far as the executability of the decree as aM from 21-11-1966 is concerned " that in spite of such a direction, the time for filing an K P. would comence to run from the date of the decree, vi7-,21-11-1%6, and therefore, the application on 22-9-1979~ would be barred. In support of this contention, the learned counsel for the petitioner relied upon the decisions in Swarninatlia Odayar v.Thiagarajaswavai Odayar, (1927) 52 Mad LJ 256 : (AIR 1926 Mad 954). Shuia-ul Mulk Bahaftr v. Umir-UT-U-mra Baha dur, (IM #9 Mad LJ "D : (AIR IVAMad 20), Ba*h XaW* v. Meemakshi Ammal, AIR 1949 Mad 28.5, Ram Gobind R3i v, Shahabad District Dowd, AIR 19116 Pat 118, and Dakshinamurthy Pillai v. Vedarnurthi Mudaliar, (190) 53 Mad L' 440 : (AIR 1927 Mad 842). On the other hand, the learned counsel for the first respondent submitted that at the tinm when the decree was passed in A. S. 342 of 1965, the decree was not executable against the petitioner and the second respondent and only after the first respondent realised that the rights of the petitioner and the second respondent with reference to the maortgage decree in 0. S6 109 of 1962 Sub Court. CheugaLPattu, be~-came extinguished, the right to execute the decree against them arose, snA therefore, the application for execution filed On 22-9-1979 was well within time. Strong reliamm was placed in this connection upon the decisions in H. Vydianatha Aiyar v. K_ Subramanian Pattar, (1913) ILR. 36 Mad 104 and Rameshwar Singh v. Bonieshwar Singh, AIR 1921 PC 31. A faint attempt was aUe made by the learned counsel for the first respondent to contend that the petitieaer and the second respondent are pemns entitled to, the benefits of the several enactments reiatine to Agriculturists Deist Belief aM tberefem, the first respondent was entitled to. take advantage of the extended period ~owing to the entbar#* laid on obtaining of decrees and execution thereof against agriculturists entitled to the benefits of the enactments