MOGALLAPALLI ANDALAMMA Vs. CHINNI VENKATACHALAM CHETTI

JUDGEMENT

(1.) The only question in this appeal against the judgment of Panchapakesa Aiyar J. in C. M. S. A. No. 47 of 1947 is whether an execution, petition filed by the respondent is within time. Both the learned District Munsif of Nellore, as well as the District Judge of Nellore held that the application was barred. In the above Civil Miscellaneous Second Appeal, Panchapakesa Aiyar J. held that it was in time. Hence this appeal by the judgment-debtor.

(2.) Execution is sought of the decree in O. 8. No. 294 of 1931 on the file of the District Munsif of Nellore. The decree was passed on 30th October 1931. In E. P. No. 597 of 1936, the District Munsifs Court transmitted the decree to the court of the Subordinate Judge for execxition on 21-4-1936. Part of the decree amount was paid to the decree-holder as a result o proceedings taken in O. S. No. 22 of 1934 on the file of the Sub Court and on 10-4-1939, a certificate of part satisfaction was sent to the District Munsifs Court. The decree, however, was not sent back. Hence on 6-4-1942 the decree-holder made an application to the Sub-Court for retransmission of the decree to the District Munsifs Court. This petition, however, was rejected on 22-6-1942 as incompetent. Eventually, by September 1944, the decree appears to have been received back in the District Munsifs Court. On 20-10-1943, an execution petition was filed in the court of the District Munsif, Nellore, which was numbered as E. P. No. 135 of 1945. It is this petition which is said to be barred by time.

(3.) It is clear that this petition would be within time if the application dated 6-41942 made by the decree-holder to the Sub-Court for retransmission of the decree of the District Munsifs Court was a proper application, because that application was disposed of by an order dated 22-6-1942, and that would furnish a fresh starting point. The contention on behalf of the judgment-debtor was, and is before us, that that application was not valid, because the Sub-Court was 'functus officio' immediately the part satisfaction certificate was sent by it to the District Munsifs Court, and thereafter it had no jurisdiction to entertain the application. Another objection to the validity of the application was that it was not accompanied by the vakalat of the advocate who appeared for the decree-holder.