SURISETTI RAMA SUBBAYYA Vs. PALUR THIMMIAH

JUDGEMENT

(1.) The only question to decide in this appeal is whether an application for execution presented by the decree-holder more than three years after the dismissal of his first petition can be, in view of the pendency of a subsequent declaratory suit which he had brought to get rid of an order made by the executing Court accepting a third party's claim petition, held to be within time in spite of the fact that the suit instituted by the decree-holder challenging the validity of the order of the executing Court had failed. This would depend on the decision as to the character and effect of the order of dismissal passed by the executing Court on accepting the objections raised by the third party to the attachment and on the question whether the declaratory suit can be regarded to be a step in aid of execution of the decree within the meaning of that expression as used in Article 182, Sub-clause 5 of the Limitation Act. If the order accepting the claim petition and cancelling the attachment is to become final only on the dismissal of the suit brought against the third party claimant and the execution application in which the order had been passed in his favour is to be deemed to remain pending in spite of its dismissal by the executing Court or if the steps, consisting of the institution of a declaratory suit questioning the correctness of the order passed in execution and on its failure of carrying the matter in appeal, taken by the decree-holder to remove the obstructions caused to him by the third party in raising objections to the attachment successfully, despite their failure to achieve the desired result, can be regarded to have been taken in continuation of the execution proceedings in such a manner as to keep the execution petition pending and alive, the execution petition filed by the decree-holder subsequently must be held to be within time. If, on the other hand, the order passed by the executing Court accepting the objections is to be held as final and remains, in view of the dismissal of the declaratory suit, unaffected and if the steps taken by the decree-holder in instituting such a suit cannot be considered to be passed in execution of the decree or in continuance of the execution proceedings, the subsequent application for execution must be held to be barred and the time spent in carrying on the declaratory suit cannot be calculated in counting the three years within which the second application should hare been made after the disposal of the first one and or disregarded as being irrelevant altogether.

(2.) The facts out of which the above question of limitation has emerged for decision are that a decree was passed on the 25 September, 1929 in O.S. No. 825 of 1929. The decree-holder made an application for execution (E. P. No. 610 of 1930) on the 17 October, 1930 for attachment and sale of an immoveable property. It Was attached but the third party objected to the attachment, on the ground that the property had been sold to him on the 2nd June, 1928 and that the judgment-debtor was not in possession of the attached property. This claim was allowed on the 8 September, 1931 and the application for execution dismissed. The decree-holder brought a suit (O.S. No. 774 of 1931) to set aside the order passed by the executing Court and for a declaration that the property attached by him belonged to his judgment-debtors and was liable to attachment in execution of his decree. The suit was dismissed on the 14 December, 1934 by the trial Court. An appeal was taken against that decree by the decree-holder to the Subordinate Judge of Kurnool (A.S. No. 70 of 1935). This was also dismissed but the learned Subordinate Judge in his judgment observed that a sum of Rs. 600 towards the unpaid balance of the price of the property purchased by him was still in the hands of the respondent who had put forward the sale in his favour and that the decree-holder might take out execution of that amount by appropriate proceedings. As the Subordinate Judge, in spite of this observation, considered that the only questions to decide in that appeal were whether the property belonged to the judgment-debtor and was liable to attachment in execution . of the decree and on those two points he found himself against the decree-holder, he dismissed the appeal. In paragraphs 9, 10 and 11 of his judgment, he observed as follows: 9. The further question that was argued and has to be considered is whether in the circumstances it is open to the plaintiff, in the present suit to proceed against the said sum of Rs. 600, as being the unpaid purchase money in the hands of the vendee. I should agree with the lower Court (vide Moti Lal V/s. Bhagwan Das) (1909) I.L.R. 31 All. 443, that when on a sale part of the sale consideration, remains unpaid, the vendor has a lien on the property sold for the unpaid purchase money. But this does not entitle any decree-holder of the vendor to bring the property to sale in execution of his decree as property of his judgment- debtor. He may attach the unpaid portion of the purchase money which is due to his judgment-debtor and enforce his lien on the property but he cannot cause the property purchased by a third party to be sold for the recovery of the unpaid purchase money to which he, as decree- holder, is not entitled vide also Veerappa Thevar V/s. Venkatarama Aiyar . 10. For plaintiff, reliance is placed on the ruling reported in Basivi Reddi V/s. Ramayya . It cannot however be said, on the facts of this case, that the plaintiff's right to proceed against the unpaid purchase money is a consequential relief. As observed, all that has to be considered in this case is whether the property, which plaintiff now seeks to proceed against, still belongs to his judgment-debtor, or it has ceased to be his properly. The sale, it should be found, is a true and bona fide transaction and was not a fraudulent one brought about with a view to cheat the creditors; on the other hand, it was brought about with a view to help the creditors, and to see that the best advantage is secured to them. 11. Thus the suit having been brought to vacate the claim order and mainly to establish the right of the plaintiff to proceed against the properties conveyed to the first defendant, in execution of his decree in O.S. No. 825 of 1929 and since it has been found that the properties have by virtue of the sale ceased to be the properties of defendants 2 and 3, plaintiff can be held entitled to no relief in the present suit as brought.

(3.) After the suit was dismissed, a fresh application for execution (E. P. No. 338 of 1936) was presented by the decree-holder on the 16 March, 1936, that is, after the expiry of almost four years and a half after his petition E. P. No. .610 of 1930 had been disposed of. This was made with the object of attaching the sum of Rs. 600 alleged to have been in the hands of the respondent as observed by the learned Subordinate Judge, Kurnool, towards the balance of the price which had remained unpaid. The application having been presented more than three years after the last petition was dismissed, it would be apparently barred by time. But limitation was attempted to be saved (a) as the second application of 1936 was alleged to be in continuation or revival of the first application (E.P. No. 610 of 1930), and (b) as the suit to set aside the order of the executing Court allowing the claim was claimed to be a continuation of the execution proceedings and regarded to be a step-in-aid of the execution under Art. 182, Sub- clause 5.