KOSURI GOPALARAYADU Vs. ADUSUMILLI GOPALAKRISHNAYYA AND ANR.

JUDGEMENT

(1.) THE appellant was the sixth respondent judgment -debtor under the decree of the Privy Council in Privy Council Case No. 55 of 1916 and the appeal arises out of the objection raised by him that E.P. No. 174 of 1936 filed in the District Munsiff's Court, Gudivada, in execution of that decree is barred by limitation. The decree of the Privy Council was passed on 5th July, 1918. It was a decree for costs against various persons one of whom was the present appellant who was at the time of the institution of the suit a minor represented by his guardian, his natural father. The petition was filed on 17th June, 1936, that is more than 12 years after the date of the decree. But what was stated was that there was a revivor by the proceedings in E.P. No. 194 of 1928 filed within 12 years from the date of the decree. It is stated that the appellant was made a party to those proceedings and execution was sought to be had as against him, that notice was sent to him represented by his father as guardian, that he was served with notice and after notice was served on the guardian an order for sale of the properties attached was passed within 12 years from the date of the decree and that consequently this petition filed within 12 years from the date of that order on the execution petition directing' the sale is not barred by limitation. It is stated that the Article that governs the proceedings is Article 183 and as there was a revivor within 12 years from the date of the decree and within 12 years prior to the date of the application the petition is not barred by limitation. Both the lower Courts have held against the appellant and found that the petition was in time.

(2.) THE prior execution petition with the orders thereon is marked as Ex. P -6 and column 10 of that petition shows that the decree was sought to be executed against the immovable property of the defendants and against defendants 5 and 7 personally. In the next column it is stated that the decree -holders prayed for an order directing the attachment of the immovable property belonging to the defendants and described in the schedule and there was also a prayer for the arrest of the defendants 5 and 7. Their prayer was for simultaneous arrest, attachment and for notice under Order 21, Rules 22, 54 and 38 of the Code of Civil Procedure. On 4th April, 1928, the Court accordingly ordered attachment and arrest, and issue of notice. The appellant was served on his father as guardian. The order for sate was passed on 18th April, 1929, after the attachment was effected. Therefore, this is a case in which there was not only notice issued to the appellant but was followed subsequently by an order in execution which will indicate that the Court passed an order holding that the decree was available for execution as against the appellant.

(3.) IN this case the appellant was admittedly a minor on the date of the decree. If in further proceedings he does not move the Court to have him declared as a major and continued to be represented by his father as his guardian it is he that took the risk of not having notice except through his father and there is nothing to indicate that the father and the petitioner were on inimical terms so that it may be inferred that he may not have received information about the proceedings. It is true that the plaintiff decree -holder himself should have known from the records that he must have become a major in 1928 but then the Code does riot impose on him any duty to see that the records are corrected by showing him as a major. In the absence of any statutory liability the decree -holder cannot be charged with any consequences on account of the failure on the part of the appellant to get himself shown in the records as a major. If the proceedings are not illegal in the sense that the Court had no jurisdiction to pass the order, the executing Court indicating that the decree was still alive and was capable of being executed is enough to revive the decree and give a fresh starting point of limitation.