SHANMUGHAM PILLAI Vs. NAMAGIRI AMMAL

JUDGEMENT

(1.) The only point for consideration in this appeal is whether the execution petition was barred by limitation. The appellant was the judgment-debtor in O.S. No. 70 of 1923 on the file of the District Munsiff's Court of Kulitalai. The respondent was the attaching creditor who had attached the decree in this suit--O.S. No. 70 of 1923. The appellant contended that his petition, E.P. No. 57 of 1941 filed on 13 September, 1940 was barred by limitation as it was not filed either within three years from the date of the decree, or within three years from the date of a final order on a valid petition for execution of the decree-. The first Court found that the petition was barred by limitation. On appeal, the learned District Judge of Trichinopoly held that the petition was not barred by limitation holding that the prior execution petition must be considered to be still pending and that therefore the proceedings should be based on the first petition itself. Hence this appeal.

(2.) The only question for consideration is whether E.P. No. 57 of 1941 on the file of the District Munsiff's Court of Kulitalai was barred by limitation. The decree in the suit was passed on the 25 August, 1934. On the 25 August, 1937, an execution petition was filed. It was returned for the production of the copy of the decree and was re-presented in time on the 14 September, 1937, with the copy of the decree. On the 22nd September, 1937, it was returned with an endorsement that a certified copy of the order making the attachment absolute should be filed and that column 6 should be filled up and that the petition should be re-presented within a week. On the 2nd October, 1937, more than a week after the date on which it was returned, it was re-presented with the following endorsement. The petitioner has applied for an order of attachment and it has got to be obtained from the District Court. He prays for a fortnight's time more. He also prays that the delay may be excused.

(3.) On the 7 October, 1937, the District Munsiff passed the following order : " To be renewed. Rejected " The present application was filed on 13 September, 1940, within three years from 7 October, 1937. It was contended for the attaching decree-holder that the order "To be renewed. Rejected." was a final order on that application and consequently this petition was within time. The District Munsiff found that the petition was barred by limitation and that as the order dated 7 October, 1937, was an order on a petition which was not re-presented in time, it could not be said to be an aider which would be a fresh starting point of limitation. The learned District Judge was of opinion that there was no final order passed on the petition of the 25 August, 1937, and that it must be considered to be still pending and therefore execution proceedings could be continued as if that was the petition that was pending.