THUMALA AYYALUREDDI Vs. THUMATI MALLAREDDI AND ORS.

JUDGEMENT

(1.) THIS is an appeal by the fifth defendant from the order of the learned District Judge of Nellore dismissing his appeal against the order of the learned District Munsiff of Kavali in E.A. No. 361 of 1944 in O.S. No. 379 of 1934.

(2.) THE plaintiff obtained a decree for partition and for future profits against defendants 1 to 5. On 10th April, 1942, the plaintiff gave up the relief granted under the decree for payment of mesne profits against the fifth defendant. Thereafter the plaintiff attached some properties in E.P. No. 78 of 1940. Then the fifth defendant filed E.A. No. 644 of 1942 claiming that the properties belonged to him and not to the first defendant and were not liable to be sold. This petition was filed by him under Section 47, Civil Procedure Code, which was dismissed for default on 12th May, 1943. It was restored on 17th August, 1943, in E.A. No. 520 of 1943, and the original petition was again dismissed for default on 13th November, 1943. The property was thereafter sold on 7th February, 1944. The fifth defendant filed E.A. No. 361 of 1944 on 20th of March, 1944, under Section 47 and Order 21, Rule 90, Civil Procedure Code. The petition was dismissed by the learned District Munsiff, and on appeal his decision was confirmed by the learned District Judge.

(3.) THE result is, a decree -holder whose execution application has been dismissed for default is entitled with immunity to make any number of applications so long as they are in time. It is a point for consideration by the Rule Committee whether it will be proper to add to these rules a provision analogous to the one contained In Order 9, Rule 9, Civil Procedure Code. I am not deciding the question whether these rules have retrospective operation as in either event I see no bar for enter -taining an application of the nature filed by the appellant under Section 47, even though the earlier application E.A. No. 644 of 1942 was dismissed twice.