BASUVAN Vs. ARRENGASAMI BY HIS AGENT TVMANICKAM PILLAI

JUDGEMENT

(1.) APPEAL against the order of the District Judge of Coimbatore in A.S. No. 67 of 1922, setting aside the order of the Subordinate Judge of Nilgiris, in E.P. No. 722 of 1921. The respondent got a decree on 6 July 1912. He applied for execution on 5 July 1915. Again on 3 January 1919, he applied for execution and was asked to explain how the application was not time-barred. He explained that he relied upon two payments made on 10 March 1916 and 15 August 1918. Then the application was dismissed because the delay in representation was too great. He had been given time till 30 March 1921, and made his representation on 30 March 1921, so the order is difficult to explain. But that is how it stands. On 27 June 1921 he made another application the validity of which was upheld by the lower Appellate Court and is now attacked. The ground of attack is that the application of 3 January 1919 was not filed and amended in time as ordered by the lower Court and, therefore, it is not a step-in-aid of execution. It was filed and amended in time, but nevertheless it was rejected. This does not prevent its being reckoned as a step-in-aid of execution; a proposition which hardly needs legal authority, but can be supported by rulings in Narayanaswami Naidu Garu V/s. Krovidi Gantayya 32 Ind. Cas. 691 : (1915) M.W.N. 865 and Gopisetti Narayanaswami Naidu Garu V/s. Muthyala Venkatratnam 32 Ind. Cas. 816 : 2 L.W. 1207 and Gurrala Seshayya V/s. Yedida Venkatasubbiah 29 Ind. Cas. 16 : 2 L.W. 540 : 28 M.L.J. 494. In argument a fresh ground was developed that the application of 3 January 1919, was not in accordance with law because the payments which saved it from being barred were not made for interest as such. The lower Appellate Court has found that these payments were for interests as such and I am not prepared to say that the presumption on which its finding is based is so entirely without foundation as to warrant its being traversed in second appeal. But apart from that it is too late to impugn the application of 3 January 1919 which on its face is an application in accordance with law on the ground that payments which are found to be genuine were not payments for interest as such.

(2.) THE appeal fails and is dismissed with costs.