PUTTAYYA ALIAS KRISHNAYYA SHANBAGA Vs. PUTTANNAYYA

JUDGEMENT

(1.) In A.S. No. 7 of 1922 in the Court of the Subordinate Judge of South Kanara from the order passed in R.E.P. No. 704 of 1921 in the Court of the District Munsif of Udipi, the Sub-Judge confirmed the order of the District Munsif dismissing an application for delivery of property under the decree in O.S. No. 77 of 1903 of his Court. Plaintiffs 2 to 4 and 6 appeal. The application was presented on 31st August, 1921, and will be time-barred unless (1) an application of 11 March, 1915, R.E.P. No. 323 of 1915 is held to have been pending beyond 31 August, 1918 and effective as keeping alive the right of execute; (2) applications R.E.P. No. 944 of 1918, R.E.P. No. 622 of 1920 against 9 defendant are held to keep the decree open as against the 10 defendant.

(2.) It so happens that the first ground was only raised in the lower Appellate Court and this second ground was only raised in the original Court and therefore, although this is a Second Appeal each ground has been considered below by only one Judge. The grounds involve points of law and I cannot say that appellants procedure is illegal, but it is not to be commended. The application R.E.P. No. 323 of 1915 is discussed in para. 2 of the lower appellate judgment. The application was filed on 11 March, 1915. There was an obstruction which appellants proceeded to remove by E. A. No. 190 of 1915. But obstructions were not finally removed until 18 December, 1916. From that date the lower Appellate Court holds that time must begin to run in regard to R.E.P. No. 323 of 1915 and an application for its revival is clearly barred at the date 1921. This accords with the Full Bench ruling in Suppa Reddiar V/s. Avudai Ammal (1904) ILR 28 M 50 (FB). R.E.P. No. 704 of 1921 must be treated not as an application for execution but as an application to revive an application for execution that had been wrongly dismissed and time began to run from the date of the appellate decree declaring the respondent's right to execute. But this ruling has lost its effective force owing to the ruling in Chalavadi Kotiah V/s. Poluri Almelammah (1907) ILR 31 M 71 : 18 MLJ 46 which holds that no application to revive is necessary. The execution proceedings are not closed by the Courts merely recording them, and the decree- holder's right to apply for their continuance accrues from day to day. This decision is approved in Subbachariar V/s. Muthu Veeran Pillai (1912) ILR 36 M 553 : 24 MLJ 545 and in my opinion determines the matter. On 27 March, 1916, when it had delivered item 3, the Court recorded the execution petition. The obstruction as regards item 2 was removed by the termination of the suit on 18 December, 1916, and although the right to apply for revival of the petition accrues from that date, the right to apply for continuance accrues from day to day. The point is not free from difficulty as observed by Benson and Abdur Rahim, JJ. in Subbachariar v. Muthu Veeran Pillai (1912) ILR 36 M 553 : 24 MLJ 545 but the decision of Miller and Munro, JJ., affirmed by those learned Judges must be accepted as authoritative. Appellants therefore succeed on the first ground....

(3.) Ground No. 2:--Whether the applications of 1918 and 1920 against the 9th defendant keep the decree open as against 10 defendant depends upon the interpretation of the decree in the light of the latter portion of Explanation 1 to Art. 182, Indian Limitation Act, " Where the decree has been passed jointly against more persons than one. " The decree in O.S. No. 77 of 1903 has been passed jointly against defendants 9 and 10, re the recovery of possession (para. 1) and against defendants 1 to 8 jointly re certain sums (para. 2) and against 9th defendant severally in respect of certain sums. It must be held that it is a decree passed jointly against more persons than one; and then the application against any one of them shall take effect against them all. The matter is elucidated in Subramania Chettiar V/s. Alagappa Chettiar by agent Palaniappa Chetty (1906) ILR 30 M 268. Where the decree awards mesne profits against A and B jointly and costs against A, B and C an application to execute the decree against A and B for mesne profits keeps alive, the right to execute the decree for costs against C because " there has been a joint decree against more persons than one and there has been an application in execution of that decree against two of these persons and this application takes effect against all the persons against whom the joint decree was passed. "