VYTHINATHA PADAYACHI Vs. AMMALU AMMAL

JUDGEMENT

(1.) The question involved in this appeal is the interpretation of the expression in accordance with law in Art. 182(5) of the Limitation Act. The appellant is the transferee of the decree in O.S. No. 1239 of 1926 and in February, 1936, applied to execute it. He had previously applied in November, 1934 and the learned District Judge of South Arcot has held that that previous application was not in accordance with law and accordingly dismissed the present application as barred by limitation. The reason given by the learned District Judge is that in 1934 appellant had no right to apply in execution as the deed of transfer which he then filed was unregistered and incapable therefore of effecting any transfer. Against this decision appellant appeals.

(2.) The decree in question was a mortgage decree and it is not, of course, contended for the appellant that in 1934 he did in fact possess any legal title to his ownership. The argument in appeal is that the requirements of Order 21, Rule 16 are satisfied by a mere assignment in writing - and in support of it I have been referred to a number of rulings.

(3.) I may say at once that none of the rulings cited really covers the point at issue. It is true, no doubt, that in order for an application to be in accordance with law it is not necessary for it to be successful, Adhar Chandra Dass V/s. Lal Mohan Das (1897) I.L.R. 24 Cal. 778. It may be dismissed for a variety of reasons, Bando Krishna V/s. Narasimha (1912) I.L.R. 37 Bom. 42, Subramania Desika v. Rangaswami Chettiar (1934) 68 M.L.J. 261 and Nandamani Ananga Bhima Deo v. Madana Mohana Deo . But none of these four cases in any way affects the competence of the petitioner to make his application. In Dayalbhai Ramji v. Dayabhai Dulachand A.I.R. 1938 Bom. 309, it was held that a transferee's application was in accordance with law even though the Court had not in fact recognised the validity of his transfer, but here again no question arose as to the transferee's status as such. The only cases which appear at first sight to support appellant's contention are Arasappan V/s. Pulugasari (1895) 6 M.L.J. 31 and Rajitagiripathy V/s. Bhavani Sankaram . Both these cases, however, ideal with applications accompanied by a valid deed of transfer, in which it was held that the transferee's rights to the decree must give way before the rights of third parties - in Arasappan V/s. Pulugasari (1895) 6 M.L.J. 31, the sons of the transferee to whom he had previously executed a deed of relinquishment - in Rajitagiripathy v. Bhavani Sankaram , a creditor who had attached the transferred decree. Though these facts would entail the dismissal of any application by a transferee they would not present any legal obstacle to his filing an application.