UMAYAL ACHI AND ANR. Vs. RAMANATHAN CHETTIAR

JUDGEMENT

(1.) THESE two civil miscellaneous appeals are connected. They arise out of a judgment rendered by the Subordinate Judge of Devakottai in E.P. No. 35 of 1973 in execution of a decree of the High Court passed in its Original Side in C.S. No. 33 of 1929. The 13th respondent in the execution petition in the Court below, as the legal representative of the second defendant, who died in the course of the proceedings, is the appellant in C.M.A. No.298 of 1975. The fourth respondent in the execution petition is the appellant in C.M.A.No. 540 of 1975. The Original Side of this Court passed a decree on 2nd December, 1929. It was a money decree payable with interest at 6 per cent per annum from that date. The suit as against defendants 4 to 9 was dismissed, but the decree was made executable against the assets of P.M.A. family which was a Nattukottai Chettiar trading family in the hands of defendants 13 and 10. In so far as the 10th defendant is concerned, he was an administrator of the estate. Since he has been discharged, it is not executable as such in the manner directed. In fact, one other C.M.A. No. 407 of 1975, was also filed by the 6th respondent, who was the 6th defendant in the suit. As no decree was passed against the 6th defendant, we dismissed this appeal (C.M.A. No. 407 of 1975) in an independent order passed by us. Several execution petitions were filed ever since the date of the decree. We shall however, refer to those execution petitions, which are relevant for purposes of this enquiry. It appears, there was a modification of the decree after the discharge of the administrator, who was impleaded as the 10th defendant in the Original Suit. By an order dated 29th March, 1932, the decree was modified so as to be effective and executable against the first defendant and the third defendant personally. Prior to 1947, several execution petitions were filed of which mention could be made of E.P. No. 270 of 1932 which, on account of an order of stay, was closed, another E.P. No. 73 of 1954 for arrest of the judgment -debtors was again closed in the same year. A similar execution petition filed in 1939 for arrest of the judgment -debtors which came up to the High Court at one stage was closed after remand on 5th January, 1943. The third defendant died sometime between 9th December, 1940 and 28th September, 1942. An execution petition filed in the year 1945 once again for the arrest of the judgment -debtor was closed on 22nd October, 1946. An application for impleading the fourth defendant as a legal representative of the third defendant was dismissed in the first instance by the lower Court and later on an application No. 2303 of 1945 on the file of this Court as above, this Court by its order dated 8th February, 1946 directed that the fourth defendant be brought on record as the legal representative of the third defendant. Liberty was however granted to the fourth defendant to raise such objections as he could in the matter of the execution of the decree. In the year 1947 an execution petition was taken for an attachment of certain properties in the hands of the judgment -debtors. This was contested and in E.P.No.141 of 1947 the Subordinate Judge of Devakottai passed an order on 27th March, 1948, the effect of which is as follows: The Subordinate Judge had to dismiss the execution petition as against defendants 4 to 6 because the suit itself was dismissed as against them. He however made a reservation regarding the question whether the decree is executable as against the fourth defendant who was the fourth respondent in the execution petition even then and left open the question and gave him also the liberty to query about the executability of the decree as against him as the legal representative of the third defendant. He also observed that no execution petition can be taken out in respect of the property of the fourth defendant as the legal representative of the third defendant and allowed the execution petition only as against defendants 1, 2 and 11 who then represented the estate of the first defendant. The execution petition was dismissed as against defendants 4, 5 and 6. This order was taken up in appeal and a Division Bench of our High Court consisting of Govinda Menon and Ramaswami, JJ., in C.M.A. No. 558 of 1948 dismissed the suit appeal. The result, therefore, is the order of the Sub -Court, Devakottai in E.P.No.141 of 1947 has become final in the light of the dismissal of an appeal against that order by this Court in C.M.A. No. 558 of 1948.

(2.) THEREAFTER , the assignee decree -holder who was prosecuting all these execution petitions filed E.P.No.58 of 1950 which was rejected because of non -production of the decree copy itself. This execution petition was dismissed on 8th March, 1950. For 10 years there was a lull. The respondent -assignee decree -holder filed E.P.No. 142 of 1960 which was again dismissed on 9th September, 1960, since batta was not paid. Finally, the present execution petition which is the subject -matter of this appeal was filed by the assignee -decree -holder in the year 1972. The execution petition was numbered as E.P.No 35 of 1973, though it was filed on 8th September, 1972. The objection taken by the appellant in both the above appeals is that the execution petition is not only barred by limitation, but it is barred under the principle of res judicata, as the Sub -Court in E.P. No. 141 of 1947 held that no execution can be taken as against the fourth defendant as a legal representative of the third defendant and that order having become final by the order of the Division Bench in C.M.A. No. 558 of 1948 the said order bars another application for the same purpose on the principle of res judicata. The Court below however allowed the execution petition as against both the appellants and held that as the decree was passed by the High Court, the period of 12 years prescribed as the period within which a decree has to be executed as per the provisions of the Limitation Act of 1963, is not applicable and as the execution petition was filed within a period of 12 years from the date of the last dismissal in E.P.No. 142 of 1960 which was dismissed on 9th September, 1960, the execution petition was in time.

(3.) IN so far as the question whether the execution petition is barred by res judicata is concerned, it has to be accepted for two reasons. Firstly, because of the principle stare decisis. The order of the Subordinate Judge of Devakottai which was to the effect that no execution petition can be taken out in respect of the property against the fourth defendant as the legal representative of the third defendant was confirmed by a Division Bench of this Court in C.M.A. No. 558 of 1948.