V E A ANNAMALAI CHETTIAR Vs. VATTIAMMAI ACHI

JUDGEMENT

(1.) This is an appeal from an order of the High Court of Judicature at Madras, dated 19 August 1942, affirming an order of the Subordinate Judge of Devakottai, dated 10 July 1940. The appeal raises the question whether an application for execution, No. 72 of 1940, preferred on 25 November 1939, for execution of a decree dated 3 November 1934, is barred by the Limitation Act, and that depends on the construction of Art. 182 of the Act. That article is in the following terms : Description of Application. Period of Limitation. Time from which period begins to run. 182. For the execution of a decree or order of any civil Court not provided for by Art. 183 or by S. 48, Civil PC, 1908. Three years. 1. The date of the decree or order, or 2. (where there has been an appeal) the date of the final decree or order of the appellate Court, or the withdrawal of the appeal, or 3. (where there has been a review of judgment) the date of the decision passed on the review, 4....... 5. (where the application next hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order, or...... The application is clearly barred by para,1 of Art. 182 unless it can be brought within one of the later paragraphs. Paragraph 2 has no application since there was no appeal against, or affecting the validity of, the decree; nor does para.3 apply since there was no application for review of judgment. Paragraph 4 is irrelevant so far as this case is concerned. The question therefore is whether the case falls within para.5. To bring the case within that paragraph it must be shown that there was an application made in accordance with law to the proper Court, either for execution or to take some step in aid of execution of the decree, and if there was such an application time runs from the date of the final order passed thereon. It is necessary, therefore, to look somewhat closely at the facts, which are not in dispute, in order to see whether the requisite application was made and finally disposed of within three years from 25 November 1939.

(2.) On 3 November 1934 a decree was passed on a promissory note in Original Suit No.118 of 1934 by the Subordinate Judge of Devakottai, decreeing in favour of the present appellant payment of a sum of Rs.13,716-12-0, with interest and costs by the defendants who were two widows. It was ordered that the decree should be against the property of the joint family of which the husbands of the two widows had been members, and against the assets of a maker of the promissory note in the hands of the defendant. So the decree was not executable against the private property of the widows. For the purposes of this appeal it may be taken that the respondents represent the judgment-debtors under that decree, the appellant being the judgment-creditor. On 14 December 1934, the judgment-creditor presented a petition which was numbered E. P. No. 418 of 1934, under R.11 of O.21, Civil P. C., asking that the decree should be executed by the attachment of two sums of money in the hands of garnishees, alleged to be owing to defendant J.

(3.) On 21 January 1935, the learned Judge made an order on this petition "rule absolute," which presumably meant that there was an order absolute for attachment of the monies in the hands of the garnishees. On 11 February 1935, the judgment-creditor made an application, No. 123 of 1935 in E. P. No. 418 of 1934, asking that he might be appointed receiver to realise the amounts in the hands of the garnishees. On 19 February 1935, an application No. 175 of 1935 was made in E. P. no. 418 of 1934 by defendant 2 in the suit, asking that the order of attachment of the amounts in the hands of the garnishees might be set aside, her contentions being, in short, that she had not been served with the application for attachment and that the monies attached were her personal property and therefore not subject to the decree. On 10 July 1935, the learned Subordinate Judge on this application directed that there was no need to set aside the order of attachment but that the petitioner should prefer a claim petition which might be enquired into under S.47, Civil PC, and the matter was adjourned to 25 July. On the same date, namely, 10 July 1935, the learned Judge dismissed the judgment-creditor's application, No. 123 of 1935, for his appointment as receiver, directing that he could make an application after defendant 2's claim was disposed of. On 25 July 1935, defendant 2 made an application, No. 527 of 1935, in E. P. No. 418 of 1934, under S. 47 of the Code, praying that the attachment of the monies in the hands of the garnishees be raised, and on 2 August, 1935, in view of the pendency of the last mentioned application, application No. 175 of 1935 for the raising of the attachment was dismissed. On 22 October, 1936, the learned Subordinate Judge allowed defendant 2's application and raised the attachment and it is to be noticed that that order was made in E. A. No. 527 of 1935, in E.P . No. 418 of 1934, and in O. S. No. 118 of 1934. On the making of this order the execution of the decree was open ; the judgment-creditor could either accept the order and seek to execute his decree by some method other than that asked for in E.P. no. 418 of 1934, or he could appeal against the order of the Subordinate Judge. He elected to adopt the latter course and on 3 December, 1936, be presented a memorandum of appeal to the High Court at Madras in E. A. No. 527 of 1935 in E. P. No. 418 of 1934 and in O. S. No. 118 of 1934, asking that the order of the lower Court be set aside, and on 27 September 1938 this appeal was dismissed by the High Court. On 25 November 1939, as already mentioned, the judgment-creditor filed Execution Petition No. 72 of 1940, in O.S. No. 118 of 1934, asking that the decree of 3 November 1934 might be executed by attachment of certain moveable property in the hands of defendants 2 and 3. The question for determination is whether this petition is in time.