MITTAPALLI NAGARATNAM Vs. KOLLI VENKATA NARASAIAH AND ANOTHER

JUDGEMENT

(1.) This petition for revision is directed against an order of the learned subordinate Judge, Vijayawada, dismissing E.P. No. 34 of 1962 on his file. The decree-holder is the petitioner.

(2.) The facts material for the purpose of this petition may briefly be stated. The petitioner filed SC 313 of 43 in the Court of the Subordinate Judge, Vijayawada, for recovery of money against the 1st respondent. That suit having been dismissed, she carried the matter in revision to the the then composite High Court of Madras. That revision was allowed and the suit was decreed on 8.3.1948. The petitioner hereafter applied to the trial court in E.P. 304/48 for execution of the decree. Six heads of cattle belonging to the Ist respondent were attached in that petition, which was ultimately dismissed on 17-4-1950. It is represented for the petitioner before us, that while dismissing E.P. No. 304/48, the learned Subordinate Judge directed that the attachment effected earlier should subsist. The correctness of this statement is however, disputed by the learned counsel for the respondents. The next petition for execution, filed by the petitioner, was E.P. No. 304 of 1953. The executing court seems to have directed the judgment-debtor as also the second respondent herein, who stood surety for him, to produce the attached livestock for the purpose of being sold. As the property was not produced before the date fixed for sale, E.P. 304/53 was dismissed on 9-2-1954. The decree-holder then preferred CRP No. 1228 of 54 in the High Court. This petition, which was heard along with a connected petition, was allowed by the High Court and the executing Court was directed to restore E.P. No. 304/53 and proceed further in the matter. The petitioner moved the executing Court on 10-8-60 to revive E.P. 304/53 pursuant to the order of the High Court in CRP No. 1228 of 54. It was accordingly revived but it was ultimately dismissed on 21-8-61. The petitioner subsequently filed E.P. 34/62 out of which this revision petition has arisen, on 27-1-62 for execution of the decree by arrest and detention of both the respondents in Civil prison. This petition was opposed by the respondents who contended, interalia, that it is barred by Section 48 of the Code of Civil Procedure. Though no specific plea of fraud was raised in the petition for execution, a contention appears to have been pressed on behalf of the petitioner at the time of inquiry that she is entitled to invoke to her aid S. 48(2)(a) of the code on account of fraud committed by the respondents. The learned Subordinate Judge found against the petitioner on the question of fraud and having agreed with the respondents that the execution petition is barred under S. 48 of the Code, dismissed it but without costs. Aggrieved by this decision, the Decree-holder has come up in revision to this Court.

(3.) Manohar Pershad, C.J. (as he then was) before whom this revision came up for hearing in the first instance referred it to a Bench in view of "an important question of law" involved in the case. That is how this petition has come before us.