KATRAGADDA RAMAYYA Vs. KOLLI NAGESWARARAO

JUDGEMENT

(1.) Manohar Pershad, J. (as he then was) and Kumarayya, J., after hearing fully this Letters Patent Appeal, preferred against a judgment of Sharfuddin Ahmed, J., referred the case to a Full Bench because not only a question as to whether Sec. 19 of the Indian Limitation Act, 1908 (hereinafter referred to as "the Limitation Act") controls Section 48, Civil P.C. but also in addition, other questions of law and fact are involved in the case. Before we set out the questions of law upon which we are required to express an opinion, it is necessary to set out briefly the relevant facts. Katragadda Rajaratnamma, whose legal representatives are the appellants herein filed a suit, O. S. No. 32/35 in the District Judges Court, Masulipatnam on the foot of a promissory note dated 28-4-1932 and obtained a decree on 26-2-1937 for recovery of Rs. 4484-11-2 together with interest and costs against defendants 1 and 2, Sunkara Ramakotayya and Kolli Seshayya personally and against all the defendants from their joint family assets. Defendants 1 and 2 died and their legal representatives have been brought on record, respondents 1 to 3 herein being the two sons and widow of defendant. An execution petition No. 26 of 1940, was filed in the executing Court on 2-2-1940, for the sale of properties which were attached before judgment. That E. P. was, however, closed on 19-4-1940, as a consequence of an application filed under Section 20 of the Madras Agriculturists Relief Act (4 of 1938), for scaling down of the debt, the decree was amended on 8-4-1941.

(2.) It may however be stated that the decree-holder in O. S. 32 of 1935 viz., Katragadda Nagaratnamma filed a suit O. S. No. 67/33 on the file of the Sub Court, Tenali against Devineni Basavayya and Devineni Raghavayya. That suit was dismissed with costs. There was an appeal against the dismissal of that suit, which also was dismissed on 9-9-1938 (vide Ex. A-8). Since the costs were not paid by Katragadda Nagaratnamma, the judgment-debtor, Devineni Basavayya and Raghavayya filed E. P. 67/40 for execution and had a precept issued by the Sub Court, Tenali, to the District Judges Court, Masulipatam, for staying the execution of the decree in O. S. No. 32/35. This precept was issued on 5-11-1940 and was served on the Sheristadar of the District Court, Masulipatam on 15-11-1940 (vide Ex. A-3(a)). After this precept was issued, Nagaratnamma filed E. P. 41/42 in O. S. 32/35 in the District Court. Masulipatam, on 6-3-1942 (vide Ex. A-4). But this E. P. was returned on the ground that the decree in O. S. 32/35 was attached in O. S. 67/33, Sub Court, Tenali. The Plaintiff (Nagaratnamma) stated that she had put in a petition in the attaching Court for permission to execute her decree. Notice were directed to be issued to the Sub Court, Tenali, and several adjournments were given for payment of batta and for awaiting return of those notices. Ultimately, the attaching decree-holders (Devineni Basavayya and Raghavayya) were personally served on 9-11-1942 and the case was posted for ascertainment of the result of the petition for permission said to have been filed in the Tenali Sub Court. On 12-11-1942, the District Judge noted that permission from the attaching Court was not produced and accordingly dismissed E. P. 41/42. After the dismissal of that E. P. the plaintiff filed E. P. 3/46 in O. S. 32/35 (Ex. A-5) on 29-10-1945. But since the decree was still under attachment by reason of the precept issued by the Sub-Court, Tenali, notices under Order 21, Rule-22 to the attaching decree-holders and the judgment-debtors in O. S. 32/35 were ordered on 29-1-46. But as the batta was not paid, the E. P. was dismissed on 1-3-1946.

(3.) The attaching decree-holders in O. S. 67/33. filed an Execution Application No. 54/67 Ex. A-8 praying that the decree may be transmitted to the District Munsifs Court, Masulipatam for execution. That application was returned with certain objections and in resubmitting the same, the attaching decree-holders stated that the previous E. P., shows that the decree in O. S. 32/35 on the file of the District Court, Krishna was attached and the attachment was made absolute. Some other objections also were raised, but they were satisfied. Ultimately, the Court passed the following order on 19-3-1947: "J. D. affixed as gone to Pesaralanka Called absent. Ex parte, Transmit."