SHIMOGA OIL MILLS Vs. RADHAKRISHNA OIL MILLS KADIRI

JUDGEMENT

(1.) This appeal by the attaching decree-holder is preferred against the judgment of the District Judge, Anantapur in A. S. No. 139/61 holding that E. P. No. 77/60 on the file of the Court of the subordinate Judge, Anantapur was not filed within three years after the previous execution petition and is therefore, barred by limitation.

(2.) It is necessary to narrate briefly the facts of the case. The O. S. 46 of 1947-48, filed by the Shimoga Oil Mills in the Court of the subordinate Judge, Shimoga, against Sri Radhakrishna Oil Mills, Kadiri, the respondent herein, for the recovery of about Rs. 3,257 was dismissed on 30/06/1949, but decreed by the High Court of Mysore in R. A. No. 81/1949-50 on 30/10/1951. As the judgment-debtors are residents of and having properties only at Kadiri, situate within the jurisdiction of the Court of the subordinate Judge, Anantapur, the Shimoga Oil Mills, the decree-holder, obtained a transfer of the decree to the sub-court. Anantapur for execution. The E. P. 37/56 filed by the decree-holder, the Shimoga Oil Mills, was dismissed by the sub-court, Anantapur on 25/10/1956 holding that "the decree-holder absent" The advocate reports no instructions." A copy of the order in E. P. No. 37/56 despatched at Anantapur on 30/10/1956 has been received by the sub-court, Shimoga on 2/11/1956.

(3.) In the meanwhile, the appellant herein obtained a money decree in O. S. No. 224 of 1948-49 on the file of the Court of the District Munsif Shimoga on 30/06/1940, against the Shimoga Oil Mills, the decree-holder in O. S. No. 46 of 1947-48 sub-court, Shimoga, which was reversed in appeal in R. A. No. 52 of 1949-50 on 24/03/1950 but finally affirmed by the High Court of Mysore, in S. A. 78 of 1950-5 1/07/1953.