THIRUPATHI AYYANGAR Vs. YEGNAMMAL

JUDGEMENT

(1.) THE legal representative of a deceased judgment-debtor whose plea of limitation against the execution of the decree by the legal representative of the decree-holder has been rejected by both the lower Courts urges the same plea in this second appeal. THE dates are as follows: 28 July 1921.-Decree for money in favour of plaintiff against defendant 1. In 1922. Both the plaintiff and defendant 1 died on dates not known. 19 July 1923.-E.P. No. 400 of 1923 by the widow of decree-holder as legal representative of decree-holder praying to add the name of the appellant as legal representative of the deceased judgment-debtor and praying for execution against him. THE petitioner (respondent) was recorded as the legal representative of the decree-holder, but as the appellant could not be served though three notices were taken out, the petition was not pressed and eventually dismissed on 26 November, 1923. 17 July 1926.-Another petition for execution by respondent against appellant, but without an express prayer for adding the appellant as legal representative of the judgment-debtor. This petition was returned for supplying the omission, but was not represented. 3 August 1927.-Third execution petition praying that petitioner (respondent) may be added as legal representative of the decree-holder, that the appellant may be added as legal representative of the judgment-debtor and that execution may issue by attachment and sale of the judgment-debtor's properties.

(2.) IT will be noticed that the three execution petitions are all successively within three years of the date of decree and of each other. [The amendment of Art. 182(5), by which the date of the final order was substituted for the date of the application came into force only on 1st January 1928.] If these were applications made in accordance with law and to the proper Court, the plea of limitation cannot stand. The appellant's objection is that the petition of 17th July 1926, was not one in accordance with law because it did not contain an express prayer for adding the appellant as legal representative of the judgment-debtor. The answer to this, as the lower appellate Court has held, is that the Civil Procedure Code does not contemplate any specific application to bring on record the legal representative of the judgment-debtor though in ordinary practice such a prayer is usually added in an execution petition. IT was probably this departure from practice which caused the return of the petition of 17 July 1926. But this cannot affect the legal validity of the petition if such an express prayer is not necessary. Section 50(1), Civil P.C., says that where the judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representatives of the deceased. That was what was prayed by the petition of 17 July 1926. This corresponds to Order 21, Rule 16, which contains the corresponding provision in the case of death of the decree-holder that the transferee (the legal representative) may apply for execution of the decree to the Court which passed it. The result of this is that the petition of 17 July 1926, was a valid execution petition in so far as it asked for execution against the appellant though it did not expressly ask for his name being substituted. Reference may be made to Alagirisamy Naidu v. Venkatachalapathi Ayyar (1908) 31 Mad 77, Palaniappa Chettiar V/s. Subramania Chettiar AIR 1925 Mad 701, and the recent decisions in Venkatachalam Chetty V/s. Ramaswami Servai AIR 1932 Mad 73 and Venkatalakshmamma V/s. Seshagiri Rao AIR 1931 Mad 303. IT has also been held that where an application has been returned for amendment, but not represented such applications would still be sufficient to save limitation: G. Seshayya V/s. Y. Venkatasubbiah (1915) 29 IC 26, Kamakshi Ammal V/s. Pichu Ayyar (1916) 35 IC 876 and Natesa Pillai v. Ganapathia (1917) 40 Mad 949. The decision of the lower Courts was right and the appeal is dismissed with costs.