KUMARA VENKATA PERUMAL RAJAH BAHADUR VARU, MINOR RAJAH OFKARVETNAGAR, BY GUARDIAN MR W A VARADACHARIAR Vs. VELAYUDA REDDI AND SARAVAPALLI SUBRAMANIA AIYAR

JUDGEMENT

(1.) It is admitted by therespondent that the District Judge s order cannot be supported on the ground that the second period during which the estate was under the management of the Court of Wards should be excluded. During this period of management decrees were not transferred to, the collector for execution and the provisions of the Court of Wards Act and the Civil Procedure Code under which time is to be excluded in that case do not apply.

(2.) It has however been sought to exclude the operation of the 12 years rule under Section 48, Civil Procedure Code, on other grounds. The decree in the present case was dated the 2nd May 1890. Though a mortgage decree it does not follow the form prescribed by Section 89 of the Transfer of Property Act, but gives the plaintiff a personal decree for the whole amount and not merely for the balance that might be found due after the sale of the mortgaged properties. Accordingly properties of the Judgment-debtor not included in the mortgage were attached and ordered to be sold before the mortgaged properties were brought to sale and it is too late now to dispute the propriety of this order. It is clear therefore that under the terms of the decree limitation began to run under Section 48(a) from the date of the decree 2nd May, 1890 or at latest under Section 48(b) from the 2nd of November 1890 after which date the mortgaged property was made liable to be sold. A period of 6 years and 7 months has admittedly to be excluded in respect of the period during which the decree had been transferred to the Collector under the Court of Wards Act, and the respondent seeks to exclude a further period, the further period from 17th August 1907 to the 15th January 1911 during which the estate was under the management of the Court of Wards without any transfer of decrees to the Collector for execution as, a, period during which in the language of Section 14 of the limitation Act 1908 he was prosecuting with due deligence another civil proceeding for the same relief where such proceeding is prosecuted in good faith in a court which from defect of jurisdiction or other cause pf a like nature is unable to entertain it. It is not shown that the respondent did anything to prosecute the execution of his decree before any court during the second period of "management. If he had applied to the collector to execute it he would at once have been informed that the collector had no jurisdiction as the decree had not been sent to him: for execution. I do not think any case is made on the facts for the application of Section 14 of the Limitation Act and it is therefore unnecessary to consider whether the time as limited by Section 48 of the Code of Civil Procedure for the execution of a decree can be extendedjjy virtue of the general provisions of the Limitation Act.

(3.) Finally it is said that E.P. No. 139 of 1905 which sought for the sale of properties not included in the mortgage was within time, and we are asked to treat the present petition of 1910 which seeks for the sals of other properties as part of the petition of 1905. Two decisions in Sevugam Chetty v. Krishna Aiyangar (1911) 22 M.L.J. 189 and Varadiah v. Raja Kumara Venkata perumal (1911) 26 M.L.J.83 have been referred to. In the first of these cases the plaintiff sued an agent to recover his account books which were detained by the agent and stated in his plaint that he would bring another suit for the money due by the agent. The Court allowed the plaint to be amended after the money claimed had become barred so as, to claim the money also under Order VI, Rule 17 of the present Code which allows the court at any stage to amend the pleadings in such manner as may be just. With great respect it does not seem to me to be just to allow a plaintiff by amending his pleadings to revive a barred claim. Weldon v. Neal (1887) 19 Q.B. D 394 .