SRIPATHI RANGAIAH Vs. BATKARI MAISAMMA AND ANOTHER

JUDGEMENT

(1.) This is the decree-holder's appeal in execution. There was difference of opinion between the Court of first instance and the Appellate Court as to whether the execution petition filed by the appellant on 27-6-1951 was within time or beyond time. The Court of first instance had held that the application was within time but the appellate Court had differed from that view. In order to understand the contentions raised before us it would be appropriate that the relevant facts be briefly stated.

(2.) The decree-holder instituted a suit against Maisamma and her husband, Batkari Rajaiah on foot of a mortgage bond in which Maisamma was shown to be an ostensible owner of the property. Maisamma admitted the claim and prayed that a decree for sale be passed against her. Batkari Rajaiah, however, disputed the claim of his wife to be real owner of the property and stated that he was the real owner and the sale-deed in favour of Maisamma was a mere benami transaction.

(3.) The trial Court while passing a preliminary decree against Maisamma dismissed the suit as against the husband on the ground that he was a party to the mortgage transaction and he had been unnecessarily impleaded in the suit. The preliminary decree, which was passed against Maisamma was made final on 25th Khurdad, 1348F. The first execution petition was filed on 20th Amardad 1348F., and it was dismissed on 20th Shehrewar 1349F. The second execution petition was filed on 12th Meher 1351F., and it was dismissed on 17th Ardibehist 1355 F. The third execution petition, which is the genesis of the present appeal, was filed on 27th June, 1951 wherein it was praved that the hypotheca be sold in execution of the decree. Despite notice, Maisamma preferred to remain ex parte. Batkari Rajaiah against whom the suit for sale has been dismissed put in appearance and raised the plea that the execution petition was barred by time because it was filed three years after the date of dismissal of the previous application. He further urged that he had obtained a decree negativing the apparent ownership of his wife and holding that he was the real owner and the hypotheca could be sold in execution of a decree which has been obtained against Maisamma and which was binding on him because of the dismissal of the decree-holder's suit against him.