V.V. NARAYANA CHETTY Vs. NARAPPAREDDIGARI VENKATA REDDI

JUDGEMENT

(1.) The primary point that falls for decision in this Letters Patent Appeal relates to the scope of Article 182 (5) of the Indian Limitation Act and it arises in the following circumstances :

(2.) The appellant filed a suit in the court of the District Munsif, Tirupathi, for recovery of possession of a vacant site situated in the Tirupati town leased out by his father permanently to the respondent on a rental of Rs. 2/- per month on the ground that it did not bind him. Judgment was entered by the trial Court in favour of the appellant on 7-9-1949. An appeal carried by the aggrieved respondent to the appellate Court proved unsuccessful, the date of the appellate Court's decree being 5-12-1950. During the pendency of the appeal, the respondent sought stay of execution of the decree and that was granted on condition that he deposited the costs awarded against him. The respondent deposited the costs on 17-1-1950. The appellant applied for payment out of this amount by means of a cheque on 2-2-1953 and an order for the issue of a cheque was made by the appellate court on 13-2-1953.

(3.) The appellant put into execution the decree in his favour on 27-1-1955. This was resisted by the respondent on the objection that the execution petition was barred by limitation, it not having been filed within three years from the date of the appellate decree. This opposition did not prevail with the executing Court which thought that the application for payment out made by the appellant on 2-2-1953 served as a step-in-aid of execution. The appeal filed by the respondent was allowed by the District Judge, Chittor. The decree-holder brought a civil miscellaneous second appeal to this court. Ranganadham Chetty J. who heard the appeal, accepted it as respects the decree for costs but dismissed it in so far as it related to the decree for possession of the immovable property. However, the learned Judge granted leave under clause 15 of the Letters Patent and that is how the matter is now before us.