PANGA JAGANNADHAN Vs. ANDHAVARAPU VENKATAPPANNA

JUDGEMENT

(1.) The respondent obtained a decree against the appellants on 17 August, 1925. He brought some property to sale in execution of that decree and the appellants filed a petition to set aside the sale on the ground of material irregularity. That petition was dismissed for default. The appellants then put in an application to set aside the ex parte order, which was allowed. Before the application to set aside the sale was again disposed of, the parties entered into an agreement whereby the appellants were to pay Rs. 3,000 within three months. In the event of their doing so, the sale was to be set aside and full satisfaction recorded; if they failed to do so, the sale was to be confirmed and part satisfaction entered up. Before the three months had elapsed, the Madras Agriculturists Relief Act had come into force and the appellants applied to the Subordinate Judge of Berhampore to scale down the decree. That was done and the sale set aside under Section 23 of the Madras Agriculturists Relief Act. By that time, more than 12 years had elapsed from the date of the original decree. The respondent therefore asked that the old execution petition which had been pending at the time when the application to scale down the decree had been made, should be revived. The learned Subordinate Judge held that it could be revived and that the present application to proceed against the land was not therefore barred under Section 48, Civil Procedure Code. He therefore ordered execution to proceed.

(2.) Two points have been raised by Mr. Dikshitulu in appeal. One is that the reasoning of the learned Subordinate Judge was wrong and secondly, that the application should have been filed by the decree-holder in the Court of the District Munsiff of Chicacole within whose jurisdiction the land now lies and not in the Court of the Subordinate Judge which is situated in Orissa. On the first point.

(3.) I have no doubt that the learned Subordinate Judge was generally right, for the execution proceedings that were then pending were only closed because of the tendency of the application under the Madras Agriculturists Relief Act which would take some time for disposal.