KASINATHA PANDARAM Vs. VISWANATHA PANDARAM AND OTHERS

JUDGEMENT

(1.) This appeal arises out of execution proceedings in O. S. No. 9 of 1924, on the file of the District Court, Tanjore. The short facts necessary for the disposal of this appeal are these. One of the decree -holders, the third plaintiff, is the appellant. Originally, the suit was filed by one Annasami Pandaram for recovery of a sum of Rs. 7394 due on a mortgage executed by the first defendant in the suit. A preliminary decree was passed on 4th September, 1924 and the final decree was passed on 5th October, 1925. In pursuance of that decree, plaintiffs 2 to 6 who were interested in executing the decree filed E. P. No. 49 of 1936 for sale of the hypothec, for realisation of the decree amount. The property was purchased by plaintiffs 2, 3, 5, and 6 on 21st December, 1937. The execution petition was adjourned and finally the sale was confirmed by the High Court on 22nd July, 1958. While the High Court confirmed the sale, they declared that the sale of the suit property would not affect the l/16th share of one of the judgment -debtors in the suit. The High Court confirmed the sale only with regard to 15/16 share. The sale certificate was issued by the District Court on 23rd July, 1959 to the appellant herein. As soon as the sale was confirmed, the sale certificate was issued, the E. P. was closed. The second plaintiff, one of the decree -holder's acting for himself and the other decree -holders, filed an unnumbered E. P. on 18th July, 1961 for delivery of the 15/16 share as per the High Court's decree, which was subsequently returned by the office for rectifying certain defects. In the meantime, the second plaintiff received Rs. 7,000 from the judgment -debtors in full settlement of his claim and did not, therefore, re -present the unnumbered petition, but only filed a memo to the effect that he had received the sum in full settlement of his claim in O. S. No. 9 of 1924. The third plaintiff, the appellant herein, filed the present execution petition E. A. No. 14 of 1962 on 7th December, 1961. This application was resisted by the judgment -debtors that it was barred by limitation. The main question, therefore, that arose for consideration before the Court below was whether the present application was barred by limitation or not.

(2.) When this matter came before the learned District Judge of Tanjore he was of opinion that the execution application was not maintainable, on the ground that the last date for filing the application was 7th September, 1961. He therefore dismissed the application, It is against this order that the third plaintiff has filed the present appeal.

(3.) The main point that I have to consider in this appeal is whether the execution application is barred by limitation or not, as the other contention raised here that the execution petition dated 18th July, 1961 should be revived was rightly rejected by the lower Court.