SRILA SRI SUBRAMANIA DESIKA GNANASAMBANDA PANDARA SANNADHI (DECEASED)SRILA SRI SHANMUGA DESIKA GNANA PANDARASANNADHI, LEGALREPRESENTATIVE Vs. RANGASWAMI CHETTIAR

JUDGEMENT

(1.) The execution proceedings in this case have had a curious and interesting history. The defendant died soon after the passing of the decree. Ignorant of this fact, the plaintiff filed the first four execution petitions against the dead judgment-debtor. The fifth petition he filed, bringing a wrong person on the record as the debtor's representative. The present petition is the sixth one filed against the same wrong representative; but the plaintiff amended it after the expiry of the 12 year period prescribed by Section 48, Civil Procedure Code by bringing the right representative on the record. The lower Court's finding, which is not contested, is that the plaintiff throughout acted bona fide.

(2.) On these facts, three questions arise: (1) Are the first four petitions against the dead judgment-debtor steps-in-aid of execution within Art. 182 (5) of the Limitation Act?. (2) Is the fifth petition against the wrong representative a step-in-aid of execution? (3) Does the amendment of the sixth (i.e., the present) petition, beyond the period provided by the law, relate back to the date when it was originally presented?

(3.) The first point. - There is a preponderance of authority in favour of the view that, when owing to a bona fide error the execution petition names the deceased judgment-debtor as the person against whom execution is sought, it is sufficient to save limitation. In Samia Pillai v. Chockalinga Chettiar (1893) I.L.R. 17 Mad. 76 : 4 M.L.J. 8 a Bench of this Court came to that conclusion. In Bipin Behari Mitter V/s. Bibi Zohra (1908) I.L.R. 35 Cal. 1047 the learned judges, dissenting from Madho Prasad V/s. Kesho Prasad (1897) I.L.R. 19 All. 337 and following Samia Pillai V/s. Chockalinga Chettiar (1893) I.L.R. 17 Mad. 76 : 4 M.L.J. 8 held that an execution application filed bona fide against a dead person, though it cannot be acted upon,-is nevertheless a step-in-aid of execution which has the effect of saving the decree from being barred. The Patna High Court in Sheogobind Ram V/s. Mt. Kishunbasi Kuer (1932) I.L.R. 11 Pat. 546 and the Lahore High Court in Maula Baksh V/s. Mohammad Ikram A.I.R. 1934 Lah. 55 took the same view. In two recent Madras cases, although the point did not directly arise, Samia Pillai V/s. Chockalinga Chettiar (1893) I.L.R. 17 Mad. 76 : 4 M.L.J. 8 was cited with approval: Parakkat Devaswom V/s. Venkatachalam Vadyar (1925) 50 M.L.J. 153 and Jagannadha Rao v. Narayanamurthy A.I.R. 1933 Mad. 696. But in unreported decision in C.M.A. No. 185 of 1902 a Bench of this Court, without discussing the point or considering the authorities, took the opposite view and Wallace, J. in Parakkat Devaswom V/s. Venkatachallam Vadhyar (1925) 50 M.L.J. 153 has rightly, in my opinion, refused to follow it. I therefore hold that the first four execution petitions, each of them filed within the time prescribed by the law, though they were not such as they themselves could be acted upon, had nevertheless the effect of saving the decree from becoming barred.