P SAINATH REDDY Vs. G NARAYANA REDDY

JUDGEMENT

(1.) This Letters Patent appeal is preferred against the judgment of Justice S. H. Sheth dismissing the Civil Miscellaneous Appeal and confirming the order of the trial Court dismissing the Execution Petition filed by the appellants.

(2.) The relevant facts are as follows:- The respondent executed a promissory note in favour of one P. Ramachandra Reddy , the father of the appellants 1 and 2, and the husband of the appellants 3 and 4. On the foot of the said note, the appellants obtained a decree in O.S. No. 89/58 on the file of the Court of the II Addl. Judge, City Civil Court, Hyderabad and obtained a money decree of Rs. 12,000.00 and odd against the respondent on 10-9-1959. The appellants/decree -holders filed an execution petition E.P. No. 35/71 on 5-8-1971 for execution of the decree by attachment and sale of the judgment- debtors properties. On the same date, notice was ordered in the said execution petition to the judgment- debtor under O.21 , R.22, C.P.C. returnable by 5-10-1971. The endorsement shows that the notice was served by affixture on 10-9-1971. The judgment- debtor did not appear on 5-10-1971. The trial Court ordered attachment and the warrant was made returnable by 22-10-1971.

(3.) At that stage, the judgment-debtor filed an application E.A. No. 152/71 before the trial Court objecting to the execution of the decree on the ground that it was barred by limitation. The executing Court upheld the contention and dismissed the Execution application. The appellants preferred an appeal C.M.A. No. 398/75 to this Court against the said order of the executing Court. The appeal was also dismissed. Before the learned Judge, it was contended that after the filing of the Execution Petition notice was issued to the judgment-debtor, but he failed to appear, and thereafter attachment was ordered and effected and it is only after the attachment was levied that the judgment-debtor filed a separate application raising an objection as to limitation , and that such an objection as to limitation , could not be raised by the judgment- debtor at a subsequent stage after attachment was ordered. In support of this contention , reliance is placed upon the decision in Venkataranga v. Sithamma, AIR 1941 Mad 440. But the learned Judge was not inclined to allow the appellants to raise the said objection , as such contention , was not raised before the executing Court. The learned Judge also took the view that in the instant case , the judgement- debtor did not raise the present objection in subsequent proceedings, and that he raised the objection in the same proceedings., after the attachment was levied and , therefore , he could be permitted to raise such an objection . The learned Judge also took the view that under Sec. 3 (1) of the Limitation Act , every suit preferred , instituted , appeal preferred, application made after the prescribed period, shall be dismissed although limitation has not been set up as a defence. In that view , the learned Judge rejected the contention of the appellants that the judgment - debtor could not be permitted to raise the objection ass to limitation.