LAWS(PVC)-1945-12-10

VENKATARAYA GOUNDAN Vs. MALLAPPA GOUNDAN

Decided On December 05, 1945
VENKATARAYA GOUNDAN Appellant
V/S
MALLAPPA GOUNDAN Respondents

JUDGEMENT

(1.) The appellant filed O.P. No. 14 of 1923 on 29 June, 1923, as pauper. The petition was subsequently registered as O.S. No. 217 of 1923. The appellant was only two years old at that time and was represented by his next friend Arunachala Goundan, the brother of the appellant's grandfather. The preliminary decree in the suit was passed on 7 October, 1924, in which the plaintiff was declared entitled to one-sixth share in the family properties and the final decree was passed on 23 December, 1925. The plaintiff states that he became a major only in 1940, though this is disputed by the respondents. He filed E.P. No. 362 of 1942, on 26th June, 1942, for execution of the final decree after getting the final decree engrossed with necessary stamps on 26 March, 1942. The learned Subordinate Judge of Goimbatore has dismissed the execution petition on the ground that it is barred under Section 48 of the Code of Civil Procedure.

(2.) It is contended for the appellant that under Section 48(2) of the Civil Procedure Code he is within time. It is stated that because of fraud played by the judgment-debtors in selling some of the properties that should have come to his share under the final decree, he was prevented from executing the decree. There is nothing in the present edse to indicate that the appellant was really prevented from executing his decree. The mere fact that some of the judgment- debtors sold properties which should have fallen to the share of the appellant could not by itself prevent the appellant from proceeding in execution to recover his share of the properties under the partition.

(3.) It is also contended on behalf of the appellant that for computing the period of limitation under Section 48, in the present case the final decree should be deemed to have been dated only from the date when the decree was engrossed on the proper stamp paper and the decree was signed, viz., from 26 March, 1942 and that if that is deemed to be the date of the final decree, this petition for execution is within time.