BUDHAVARAPU VENKATA SURYA GOPALAM Vs. ADIVI BAPIRAJU

JUDGEMENT

(1.) The appellants before us are the decree-holders, whose execution petition has been found to be barred by limitation. The execution petition earlier to the one so found had been dismissed on 8/05/1947, but the decree-holders had during its pendency filed Ex. A. 210/47 that was received in Court on 10/04/1947. Thereby they had asked that the upset price fixed by the court in respect of the properties ordered to be sold should be reduced. The application had stated that 5/05/1947 had been fixed as the date for the sale at the mortgaged properties in order to realise the decree amount, that the properties were lands subject to submersion, that there were several decrees against the defendant, and that the upset price for the lands in the first item should be reduced to Rs. 500 from Rs. 7,000; in the second Item to Rs. 200 from Rs. 1,400; in the third item to Rs. 200 from 1,800; in the fourth item to Rs. 200 from Rs. 400. The application then stated that if the sale be held with the upset price as already fixed, none would come and the decretal debt would not be realised. Though the main execution petition had been dismissed earlier, the Ex. A. 210/47 was rejected on 28/07/1947, The next execution petition for the sale of the hypothecated is dated 26/07/1950 and is obviously beyond three years of the final order on the earlier execution petition. The appellants, however, rely on the order rejecting Ex. A. 210/47, which is within three years of the next execution petition and they claim it as saving the limitation. Their case is that the application and the order on it are covered by Clause (5) of Article 182 of the Limitation Act that reads as follows:--

(2.) The District Munsiff has held that the execution petition was barred because the order passed on Ex. A. 210/47 was not provided for by the Civil Procedure Code and could not be regarded as step in aid of execution. The appellate court has agreed with the view. The learned Judge, who heard the second appeal, has firstly decided that if the application be one to take a step in aid of execution, a fresh period of limitation would start from the date of the final order on it, and the pendency of any execution petition would not be necessary. In this connection he has relied on Ayi Goundan v. Solai Goundan, (1945)1 Mad LJ47 : (AIR 1945 Mad 139) (FB). He has further found that the majority of the cases cited before him were not directly relevant, as they rid not deal with the question arising in the appeal. He has further held that Order 21 Rule 66 of C.P.C. does not provide for fixing any upset price in the sale proclamation and the price had been apparel fixed because of Sub-rule 2 of Rule 199 of the Madras Civil Rules of Practice, which provision the learned Judge found to be opposed to Clause (e) of the Madras amendment to Sub-rule 2 of O. 21 R. 66 C. P, C. and to be void. In this connection he has relied on Murugappa Chettiar v. Ramasami Chettiar, ILR 59 Mad 342: (AIR 1935 Mad 893) and Arunachala Reddiar v. Muthusadasiva Mudaliar, ILR (1950) Mad 651: (AIR 1950 Mad 261). The learned Judge has also found Ex. A. 210/47 not to be a step in side of execution and for doing so he has applied the test laid in Masilamani Mudaliar v. Sethnswami Ayyar, ILR 41 Mad 251; (AIR 1918 Mad 620) where Kumaraswami Sastriyar, J., has at p. 255 (of ILR Mad): (at p. 622 of AIR) observed as follows:-- .

(3.) The learned Judge of this Court in dismissing the second appeal has finally held that none of the aforesaid tests applied to the Ex. A. 210/47; for the application was to reduce upset price when no sale was pending and therefore it could not be a step in aid of execution. It is clear that the conclusion about there being no pending sale in the case is not accurate, for when Ex. A. 210/47 was received in Court the order dismissing the execution petition has not beer made. At 1 any rate the Full Bench decision in 1945-1 Mad LJ 47: (AIR 1945 Mad 139) is decisive that the pendency of an execution petition is not necessary to constitute an application a step in aid of execution. It is equally clear that the test for ascertaining whether an application amounts to a step-in-aid is to find out whether the application be in furtherance of the execution proceedings under 3 decree. The same was described by Burn, J. in President, "Union Board, pentapadu v. Venkata Srinivasacharyulu, ILR 59 Mad 424 at p. 427: (AIR 1936 Mad 118 at p. 119) in these words:-- "If the Court is asked to take a step in aid of execution, it must, we think, be a step which will bring execution nearer by, however so little it may be."