YERAMATI RAMAKRISHNAIAH Vs. VIJAPEYAJULA VENKATESWARLU

JUDGEMENT

(1.) The principle question of law that has to be answered in this case is whether Art. 11 of the Limitation Act (1908) would apply to a suit brought to challenge an order dismissing a claim petition made to an attachment directed before judgment. Since the suit, out of which the present Second Appeal arises, was instituted in 1960, it is the Act of 1908 that is applicable to it.

(2.) Now, I will refer to the parties as they were arrayed in the suit O.S. No. 275/60 in the District Munsifs Court at Kakinada. The defendant in the suit, filed O.S. No. 349/55 against one Venka Bhaskrarao for recovery of money and pending the suit he got attached some properties in the name of the said Bhaskararao in I.A. No. 26/56. The plaintiff then filed I.A. No. 908/56 to raise the order of attachment. His contention was that the property really belonged to him but stood in the name of Bhaskararao was made a party to the claim petition. It may also be mentioned that Bhaskararao had earlier executed a deed of relinquishment in favour of the plaintiff. Bhaskararao did not take any interest in the claim proceeding and despite the plaintiffs participation in it, it was rejected on 30-8-1958. The suit was decreed exactly one year later on 30-8-1959. The present suit to set aside the order dismissing the claim petition on 30-8-1958 was filed on 5-8-1960.

(3.) There were three principal defences to the suit. They are : (1) It was barred by limitation because it was filed more than one year after 30-8-1958, (2) The suit was not maintainable because the judgment-debtor was not made a party to it and (3) The plea of benami was false. All these three objections did not find acceptance at the hands of both the lower courts. They repelled the question of limitation as well as the one relating to maintainability and on a consideration of the evidence, found that the property stood really benami in the name of Bhaskararao though it belonged to the plaintiff. In that view, the suit was decreed by both the courts. Hence the present second appeal by the defendant.