AMBUJAMMAL Vs. SINGARAMMAL

JUDGEMENT

(1.) Seshadri Aiyangar had two sons, Rangachari and Raghavachari both of whom died issueless. Rangachari's widow is Ambujammal who is the appellant. Raghavachari's widow was Tiruvengadammal who adopted her daughter's son Padmanabhachari, whose father was her son-in-law, Chakravarthi Aiyangar. Ambujammal filed O.S. No. 29of 1921 against Tiruvengadammal and Chakravarthi, the latter for being in possession of the property belonging to the family. She claimed a half-share in the properties and she questioned the adoption. The suit was ultimately compromised. On the 22nd August, 1922, a compromise decree was passed which provided for the payment of Rs. 225 per annum to her towards maintenance, the payment to be in two instalments one in March and the other in June. The decree was being executed until O.S. No. 154 of 1935 was filed by Chakravarthi Aiyangar praying for the reduction of the maintenance amount awarded under the compromise decree. It was not precisely a reduction but it was a prayer to convert the maintenance into grain basis from cash basis which in effect led to a reduction. Chakravarthi Aiyangar succeeded to some extent as the first Court decreed that maintenance should be put on grain basis. The decree of the first Court in O.S. No. 154 of 1935 was passed on 9 July, 1937. Ambujammal appealed against that decree and the Subordinate Judge of Chingleput allowed the appeal (A.S. No. 56 of 1940) on 12 August, 1940, and dismissed Chakravarthi Aiyangar's suit, thereby restoring with full effect the compromise decree in O.S. No. 29 of 1921 dated 22nd August, 1922. On 24 June, 1937, Ambujammal filed E.P. No. 280 of 1937 for execution of her maintenance decree. That execution petition was dismissed on 13 August, 1937, as not pressed consequent upon an endorsement made on the above execution petition that the petition might be closed for the present. After the passing of the appellate decree in A.S. No. 56 of 1940, Ambujammal filed E.P. No. 386 of 1941 out of which the present appeal arises. She claimed maintenance due to her from 10 January, 1935, to 10 January, 1941. The respondent opposed the application and contended that the claim was barred by limitation for the period from 10 January, 1935, to 31 March, 1938. The learned District Munsiff excluded the maintenance for that period and ordered execution for the balance. An appeal against the said order before the Subordinate Judge of Chingleput was dismissed and the present appeal is against the said order.

(2.) The learned advocate for the appellant has put forward three propositions. First, that the period from 9 July, 1937, when the District Munsiff passed the decree in O.S. No. 154 of 1935 to 12 August, 1940, when the Subordinate Judge virtually restored in full the decree in O.S. No. 29 of 1921 should be excluded, as during that period the decree in O.S. No. 29 of 1921 was incapable of execution in the form in which it was passed. The second contention is that, if Art. 181 does not apply Art. 182 would apply and the case would come under the second clause of that Art. which provides that where there has been an appeal limitation runs from the date of the order of the appellate Court. The third argument is that E.P. No. 386 of 1941 should be treated as a revival or continuance of E.P. No. 280 of 1937 because there was no final disposal of that execution petition; the order of dismissal having been passed on the endorsement that the petition might be closed for the present.

(3.) I see no force in any of these three contentions. With regard to the first point, learned Counsel relied on the general rule enunciated by the Privy Council in Nagendranath De v. Sureshchandra De (1932) 63 M.L.J. 329 : L.R. 59 I.A. 283 : I.L.R. 60 Cal. 1 at 7 (P.C.). The rule laid down by their Lordships that So long as there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorny path of execution, which, if the final result is against them, may lead to no advantage.