SALVAPANTHULA SESHAGIRI RAO Vs. REBALA SUBBARAMI REDDY

JUDGEMENT

(1.) These two appeals arise out of an order passed in execution proceedings by the Subordinate Judge of Nellore. The question in A.A.O. No. 803 of 1943 is one of limitation. A.A.O. No. 196 of 1944 raises a question of res judicata, but it is admitted that if this Court decides the question of limitation in favour of the appellants in A.A.O. No. 803 of 1943, it will mean the dismissal of A.A.O. No. 196 of 1944.

(2.) In order to appreciate the question of limitation, it is necessary to set out the course of events between the 28 October 1929 and the 3 March 1943, the date of the order under appeal. On the 28 October 1929 one Salvapantulu Subba Rao obtained a money decree in the Court of the Subordinate Judge of Nellore for Rs. 2,000 with interest against Robala Venkatareddi, Robala Subbarami Reddi and certain others. Venkatareddi was the first defendant and Subbarami Reddi the second defendant. On the 25 October, 1932 the decreeholder applied for execution against the second defendant and the legal representatives of the first defendant, who had died in the meantime. The legal representatives were made parties as respondents 3 to 5. On the 14 January, 1933 the decree was transferred to the District Court for execution. On the 4 May, 1933 the decree-holder filed an application in the District Court for execution by attachment and sale of the properties of the second defendant and the legal representatives of the first defendant. The application complied with all the requirements of Order 21, Rules 11 and 13 of the Civil P. C., but was returned to the decree-holder on two grounds. The first ground was that the petition was not accompanied by a vakalat. The second was that the Court required, under Rule 14 the petitioner to file extracts from the patta register. The pleader who presented the application was under no obligation to file a vakalat because he had filed one in the Subordinate Court in connection with a petition for the amendment of the decree. |This was brought to the notice of the Court and the pleader re-presented the petition which was then accepted, although it was not registered or numbered The District Judge insisted on the patta extracts being filed and on three occasions he granted further time for this purpose. The last date given was the 14th September 1933. As the patta extracts had not been filed on that date, the District Judge rejected the application for execution in an order couched in these terms, Patta extracts not filed. Further time not applied for. Rejected.

(3.) The appeals turn on the question whether this order was a final order within the meaning of Art. 182(5) of the Limitation Act.