VELLAYAN ASARI Vs. SIVAGNANAM ASARI

JUDGEMENT

(1.) In this Second Appeal two points have been argued before us. It is argued first that the Lower Appellate Court erred in its application of Art. 120 of the Limitation Act to the plaintiff's suit, in so far as it is concerned with item 1. It applied Art. 120, relying on Mallikarjuna Prasada Naidu V/s. Matlapalli Virayya (1918) 41 Mad. 849 : Since the Lower Appellate Court gave judgment, the limitation applicable to a claim petition, when the claim is in respect of property originally attached before judgment, has been dealt with in Arunachalam Chetty v. Periasami Servai A.I.R. 1921 Mad. 163. According to that decision the attachment originally made before judgment would assume the character of an attachment in execution, certainly when an order is passed for the sale of the attached property, possibly also on the date when an application for execution after decree was made. We cannot find in the record any materials for the dates, on which those stages in the proceedings were reached. We must accordingly call on the Lower Appellate Court to submit a finding on the issues : On what date was the sale which took place on 1-10-1912 ordered? and on what date was the sale applied for?" "In returning its findings on these issues, the Lower Appellate Court will submit the records in connection with the execution of the decree in O.S. No. Ill of 1910 on the file of the District Munsif's Court of Sivaganga (O.S. No. 126 of 1911 on the file of the District Munsif's Court of Manamadura).

(2.) The other point dealt with in the Lower Appellate Court's judgment will arise only in case the defendant fails in respect of limitation. It is whether the hypothecation bond; Exhibit A, was a sham transaction or a fraudulent transaction intended to defeat creditors. The Lower Appellate Court has already found that Exhibit A was not a sham transaction. It held it unnecessary to consider whether it was intended to defeat creditors with reference to Palaniandi Chetty V/s. Appavu Cettiar and Subramania Aiyar V/s. Muthia Chettiar (1918) 41 Mad. 612. Those decisions have however now been overruled by Ramaswamy Chettiar V/s. Mallappa Reddiar (1920) 43 Mad. 760. We must therefore call on the Lower Appellate Court to submit a finding on that issue whether Exhibit A was intended to defeat creditors.

(3.) Fresh evidence may be taken in regard to the history of the execution proceedings referred to in the earlier portion of this judgment. The finding as regards the character of Exhibit A will be returned on the evidence already on record. These findings are due in two months : seven days for objections. Second Appeal No. 885 of 1920.