LAWS(PVC)-1921-2-70

DOORVAS SESHADRI AIYAR Vs. GOVINDASWAMI PILLAI

Decided On February 04, 1921
DOORVAS SESHADRI AIYAR Appellant
V/S
GOVINDASWAMI PILLAI Respondents

JUDGEMENT

(1.) In A.A.A.O. No. 205 of 1919. This civil miscellaneous Second Appeal has arisen out of an execution proceeding, the decree-holder being the Ist appellant. He obtained an executable decree in the Madura District Munsif's Court on 23 February 1909 for sale of certain lands. On the 1 January 1912, a new Court called the District Munsif's Court of Melur was established which obtained jurisdiction over those lands. A valid application for execution was made to the proper Court on the 7 February 1912. On the 3 April 1912 an oral application was made to the Madura Munsif's Court for extension of time to take a step in execution. This oral application of 3 April 1912 to the Madura Munsif's Court was not made to the proper Court (or to a proper Court) according to the current of decisions of this High Court which obtained till 1919 when the Full Bench Decision in Seeni Nadan V/s. Muthusamy Pillai (1919) I.L.R. 42 Mad. 821 S.C. 37 M.L.J. 284 was pronounced. Following the prevailing view, the application made to the Madura Munsif's Court on 1 April 1915 was dismissed by the High Court on second appeal on 17 September 1917 as being an invalid application. In so dismissing the application made to the Madura Munsif's Court on the ground that it had no jurisdiction to entertain it and that the proper Court to entertain it was the Melur Munsif's Court, the High Court further remarked that as the previous application of 3 April 1912 had also been made to the incompetent Madura Munsif's Court, it would not save limitation for the application of I April, 1915 even if this application of 1 April 1915 had been made to the competent Melur Court.

(2.) The present application for execution was made to the Melur Munsif's Court on the 23rd November, 1917 which was the proper Court to entertain the application according to the view which prevailed till 1919, but this application has also been dismissed on the ground that it was barred by limitation because the application made in 1915 to the Madura Munsif's Court was decided by the High Court to be an application made to a wrong Court and hence could not save limitation.

(3.) The vakil for the appellants argues that as the former current of decisions was held to be erroneous in Seeni Nadan V/s. Muthusamy Pillai (1919) I.L.R. 42 Mad. 821 S.C. 37 M.L.J. 284 the decision of this Court which held in 1917 that the application made to the Madura Munsif's Court on 1 April 1915 was not an application to a competent Court was erroneous, that that erroneous decision being a decision on a question of law is not binding upon the parties when the same question arises in a subsequent proceeding even though between the same parties and that therefore the present application of November 1917 being within three years of the previous competent application of I April, 1915 is not barred by limitation.