CHIVUKULA LAKSHMIPATHI SASTRI Vs. KOTA CHALAMIAH

JUDGEMENT

(1.) This is an application to revise the order of the Subordinate Judge, Ongole, confirming the decision of the District Munsif of Ongole in E.P. No. 187 of 1953 in small cause suit No. 768 of 1940 dismissing his application for execution of the decree. For the purpose of understanding the legal questions that arise for decision it is necessary to set out a few facts. The decree was passed on 18-12-1640. The fourth execution petition was filed on 22 4-1948. The petitioner did not refer to the numbers of the earlier execution petitions and the dates of their disposal. The application was consequently returned and it was not presented by the petitioner into court till 15-1-1953 when it was marked as Ex. A-2. The fifth execution petition was filed on 14-7-1951 and the sixth execution petition which is the subject matter of the Revision Petition was filed on 18-12-1952. The courts below held following the decision in Syed Ghulam Khadir Sahib and others v. Viswanthayyar 1942 (2) MLJ 768 that the execution petition returned for amendment but not represented has no legal existence till it is represented and the delay is excused and dismissed the E.P. The decree-holder has consequently preferred an appeal.

(2.) Sri. P. Satyanarayana, the learned advocate for the respondent, raised a preliminary objection that the appeal to the Subordinate Judge was not maintainable and that consequently the revision petition to set aside the appellate order does not lie. The question is directly governed by a Bench decision of the Madras High Court reported in Dattada Bhimaraju v. Kasibotla Srirama Sastrulu AIR 1919 Mad. 264 ' The head note correctly sets out the legal position and it is as follows:-

(3.) Sri Satyanaryana next contended that it is clear from the records that the small cause court's decree was transferred to the original side for execution. Having perused the first execution petition filed by the petitioner I am satisfied that the decree was transferred to the original side for execution and that the decision referred to supra directly governs the case.