VARANASI PADMANABHAM Vs. INATURI JOGA RAO

JUDGEMENT

(1.) The only question in this Civil Miscellaneous Second Appeal is whether E.P. No. 209 of 1953 on the file of the District Munsif's Court, Kakinada, is barred by limitation.

(2.) The respondent obtained a money decree against the appellants in O.S. No. 504 of 1943 (District Munsiff's Court, Kakinada) on 2oth January, 1944. On 17th January, 1947, he filed an application (E. P. No. 35 of 1947) for attachment and sale of the properties belonging to the judgment-debtors. The executing Court . directed attachment of the properties to be effected by 27th March, 1947 and also directed the decree-holder to pay batta within three days from the date of its order, namely, 5th March, 1947. The decree-holder failed to pay batta within the prescribed time. The decree-holder did not get that order set aside by appropriate proceedings. He filed a second execution petition (E.P. No. 116 of 1950) on 27th March, 1950 and that was dismissed for non-payment of batta on 10th May, 1950. He then filed a third execution petition (E.P. No. 209 of 1953) on I2th June, 1953. The judgment-debtors inter alia pleaded that this execution petition was barred by limitation, on the ground that the second execution petition, i.e., E.P. No. 116 of 1950 was filed more than three years from the date when the first execution petition was dismissed, wz., 14th March, 1947. The trial Court held that E.P. No. 209 of 1953 was barred by limitation, while the lower appellate Court, following the judgment of Horwill, J., in Vasireddi Venkatappaiah v. Vasireddi Seetharama Varma, (1944) 1 M.L.J. 454. held that the execution petition was within time. Hence, the second appeal.

(3.) The only question in this second appeal is whether the present E.P. was barred by limitation. Under Article 182(5) of the Indian Limitation Act, an execution petition should be filed within three years from the date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step-in-aid of execution of the decree. The learned counsel for the appellants contends that the final order within the meaning of that Article was made on 14th March, 1947, whereas the learned counsel for the respondent argues that the said order must be deemed to have been made on 27th March, 1947. From the narration of the aforesaid facts, it is manifest, that factually a final order was made by the executing Court dismissing E.P. No. 35 of 1947 on I4th March, 1947. That order was either good or bad. If that order was bad, the decree-holder should have got it set aside by taking appropriate proceedings. So long as that order was allowed to stand, it appears to us that it is not possible to contend that the Court did not make a final order against the decree-holder. The decision of Horwill, J., in Vasireddi Venkatappaiah v. Vasireddi Seetharama Varma, (1944) 1 M.L.J. 454. turned upon the terms of the order made in that case. The execution petition was posted to 29th January, 1937, but the learned District Munsif dismissed it on I5th January, 1937, for nonpayment of batta behind the back of the parties. The learned Judge held that the order made on 15th January, 1937, must be deemed to have been made on 29th January, 1937, to which date the E.P. was posted. We find it difficult to accept the reasoning of the learned Judge. In effect, the learned Judge held that, though a final order had been made on a particular date, it must be held to have been made constructively on a different date. In our view, the law does not permit any such fiction ; and if the order was passed illegally, it would have been open to the decree-holder to get the E.P. restored or otherwise to get the order set aside by the appellate Court. That apart, in the present case, it does not appear from the B-Diary that the execution petition was posted to any particular date and the B-Diary also discloses that the execution petition was advanced and was disposed of finally on a particular date for the reasons mentioned in that order. We cannot say that, when a Court dismissed an application on a particular date, it did not dismiss it on that date. In our view, the order made on 14th March, 1947, was the final order within the meaning of Article 182(5) of the Limitation Act. If so, E.P. No. 116 of 1950, having been filed more than three years from the date of the final order on the previous execution petition, was clearly barred by limitation. It follows that the present execution petition (E.P. No. 209 of 1953) was also barred by limitation. The order of the lower appellate Court is set aside and that of the first Court is restored. The appellants will have their costs throughout. Appeal allowed-Execution Petition held barred by time.