NACHARAMMAL ANDORS. Vs. VEERAPPA CHETTIAR AND ORS.

JUDGEMENT

(1.) THE question in this appeal is one of limitation. On the 1st December, 1922, in O.S. No. 27 of 1920, in the Court of the Subordinate Judge of Dindigul, the plaintiff obtained a conditional decree for possession of property in suit. On the 28th September, 1926, that decree was confirmed subject to a modification with regard to the amount to be paid under the decree. Both sides appealed to this Court. On the 21st November, 1930, their appeals were dismissed. On the 13th August, 1942, the decree holder filed an application for execution. The alienees from the first defendant contended that the application was barred by reason of the provisions of Section 48 of the Code of Civil Procedure. The Subordinate Judge held that the petition was not barred and his decision was concurred in by the District Judge. On second appeal Kuppuswami Aiyar, J., agreed with the Courts below. This appeal is from his judgment.

(2.) THE appellants say that Section 48 of the Code of Civil Procedure prescribes a period of twelve years from the date of the decree of the trial Court and rely on the decision of a Bench of this Court (Burn and Mockett, JJ.) in Nagalinga Chetty v. : AIR1941Mad477 . We shall refer to that decision presently.

(3.) IT is true that Burn and Mockett, JJ., in Nagalinga Chetty v. : AIR1941Mad477 did express the opinion that the twelve years starts from the date of the trial Court's decree. The learned Judges had misunderstood the effect of the judgment of the Full Bench of this Court in Ramachandra Rao v. : AIR1940Mad127 Mad. It was there held that where a decree has been amended, the twelve years period does not commence from the date of the amendment but from the date on which the decree was passed. It was certainly not the intention of the Full Bench to hold that the period starts from the trial Court's decree when that decree has been replaced by an appellate decree. The judgments delivered in that case lend no support for the judgment in Nagalinga Chetty v. : AIR1941Mad477 in this connection.