(1.) SESHADRI Aiyangar had two sons, Rangachari and Raghavachari both of whom died issueless. Rangachari's widow is Ambujammal who is the appellant. Raghavachari's widow was Tiruvengadammal who adopted her daughter's son Padmanabhachari, whose father was her son -in -law, Chakravarthi Aiyangar. Ambujammal filed O.S. No. 29 of 1921 against Tiruvengadammal and Chakravarthi, the latter for being in possession of the property belonging to the family. She claimed a half -share in the properties and she questioned the adoption. The suit was ultimately compromised. On the 22nd August, 1922, a compromise decree was passed which provided for the payment of Rs. 225 per annum to her towards maintenance, the payment to be in two instalments one in March and the other in June. The decree was being executed until O.S. No. 154 of 1935 was filed by Chakravarthi Aiyangar praying for the reduction of the maintenance amount awarded under the compromise decree. It was not precisely a reduction but it was a prayer to convert the maintenance into grain basis from cash basis which in effect led to a reduction. Chakravarthi Aiyangar succeeded to some extent as the first Court decreed that maintenance should be put on grain basis. The decree of the first Court in O.S. No. 154 of 1935 was passed on 9th July, 1937. Ambujammal appealed against that decree and the Subordinate Judge of Chingleput allowed the appeal (A.S. No. 56 of 1940) on 12th August, 1940, and dismissed Chakravarthi Aiyangar's suit, thereby restoring with full effect the compromise decree in O.S. No. 29 of 1921 dated 22nd August, 1922. On 24th June, 1937, Ambujammal filed E.P. No. 280 of 1937 for execution of her maintenance decree. That execution petition was dismissed on 13th August, 1937, as not pressed consequent upon an endorsement made on the above execution petition that the petition might be closed for the present. After the passing of the appellate decree in A.S. No. 56 of 1940, Ambujammal filed E.P. No. 386 of 1941 out of which the present appeal arises. She claimed maintenance due to her from 10th January, 1935, to 10th January, 1941. The respondent opposed the application and contended that the claim was barred by limitation for the period from 10th January, 1935, to 31st March, 1938. The learned District Munsiff excluded the maintenance for that period and ordered execution for the balance. An appeal against the said order before the Subordinate Judge of Chingleput was dismissed and the present appeal is against the said order.
(2.) THE learned advocate for the appellant has put forward three propositions. First, that the period from 9th July, 1937, when the District Munsiff passed the decree in O.S. No. 154 of 1935 to 12th August, 1940, when the Subordinate Judge virtually restored in full the decree in O.S. No. 29 of 1921 should be excluded, as during that period the decree in O.S. No. 29 of 1921 was incapable of execution in the form in which it was passed. The second contention is that, if Article 181 does not apply Article 182 would apply and the case would come under the second clause of that Article which provides that where there has been an appeal limitation runs from the date of the order of the appellate Court. The third argument is that E.P. No. 386 of 1941 should be treated as a revival or continuance of E.P. No. 280 of 1937 because there was no final disposal of that execution petition; the order of dismissal having been passed on the endorsement that the petition might be closed for the present.
(3.) IT was contended that this principle has been followed by Krishnan Pandalai, J., in Mangamma v. : AIR1933Mad785 and by a Division Bench of this Court in Ramachandra Rao v. : AIR1939Mad157 those cases may be distinguished on the ground that in those cases there was an impediment in the way of the execution of the decree. In the present case there was no difficulty whatever in the matter of execution of the decree in O.S. No. 29 of 1921 until the passing of the decree by the District Munsiff in O.S. No. 154 of 1935. Even thereafter the decree could have been executed for that part of the amount which was granted under that decree. In Chidambaram Chettiar v. Meyyappa Chettiar, (1932) 63 M.L.J. 329 :, L.R. 59 IndAp 283 :, I.L.R. 60 Cal. 1 this aspect of the matter has been fully emphasised. The learned Judges in that case said: