ARUNACHALA REDDIAR Vs. MUTHUSADASIVA MUDALIAR

JUDGEMENT

(1.) THIS appeal was referred to a Bench as Govinda Menon J. was of opinion that as it raised a question of importance it should be considered by a Bench, particularly in view of the conflict between two decisions, one of a Bench and the other of a single Judge, on the question raised in the appeal. The Bench decision is Venkatarama Sastri v. Venkatanarasimham : AIR1938Mad144 and the decision of the single Judge is Kamalammal v. Rajaratna Naicker : (1949)1MLJ66 .

(2.) THE facts out of which this appeal arises may be shortly stated. The respondents obtained a final decree in a mortgage suit on 11th February 1941. The first execution petition was filed on 5th February 1944 for the sale of the properties. That application was returned from time to time for the filing of the sale papers and the encumbrance certificates, and while the decree -holder was praying for extension of time to comply with those requirements, the executing Court required the decree -holder to produced also a copy of the final decree. The order directing production of a copy of the final decree was made nearly two months after the filing of the application. The decree -holder obtained a month's time to produce a copy of the final decree, but as he was not in a position to produce the copy the application was ultimately rejected by the Court on 28th June 1944. The second execution petition was filed on 31st January 1946. The judgment -debtor filed a counter in which he raised the contention that execution was barred by limitation as the previous execution application was not one in accordance with law, as no decree copy was filed along with the application.

(3.) IN view of these conflicting decisions, it becomes necessary for us to examine the effect of the Civil Rules of Practice and canvass the correctness of the decision of the Bench in Venkatarama Sastri v. Venkatanarasimham : AIR1938Mad144 which is in accordance with an earlier decision of this Court in Pachiappa Achari v. Poojali Seenan, 28 Mad. 557, which, however, was pronounced before the Code of 1908 and under the Civil Rules of Practice made in the year 1905.