A V P PALANIAPPA CHETTIAR Vs. THAIVANAI ACHI

JUDGEMENT

(1.) These appeals are from certain orders passed in proceedings in execution of the decree in O.S. No. 102 of 1920 on the file of the sub-Court, Sivaganga. The earlier appeal is from the order dated 29 February, 1932 passed in an appeal by the District Judge of Ramnad, from the order of the subordinate Judge of Sivaganga dated 12 March, 1930. The later appeal is from the order of the District Judge dated 10 February, 1933 in an appeal from the order of the subordinate Judge of Devakottah dated 17 August, 1932. The later appeal is the more important of the two for the reason that if that appeal fails the other appeal is not going to be pressed.

(2.) The later appeal No. 50 of 1933 is by the legal representatives of the decree-holder in the suit. The other appeal is by the judgment-debtor. There was an application made by the legal representatives to be brought on record in 1929 including a prayer for transmission of the decree for purposes of execution to the sub-Court of Devakottah. Notice of this petition was taken out and the order thereon was an order for transmission. The judgment-debtor's case was that he was never served with notice of this petition whereas the case of the appellants-- that is, the appellants in C.M.S.A. No. 50 of 1933 - was that notice was refused by the judgment-debtor and was therefore affixed, and that therefore notice must be deemed to have been duly served on him. An application was made by the judgment-debtor to set aside the order of transmission but that application was dismissed by the subordinate Judge of Sivaganga on the ground that he should apply to the sub-Court Devakottah to which Court the decree had been transmitted and where execution was pending. The judgment-debtor appealed from this order to the District Judge and the learned District Judge dismissed the appeal on the preliminary-ground that the appeal was not maintainable. It is from this order dismissing the appeal as incompetent that C.M.S.A. No. 126 of 1932 is filed.

(3.) Subsequently the judgment-debtor applied to the sub-Court, Devakottah to raise the attachment of the properties of the judgment-debtor made in execution of the decree. That petition was dismissed by the Subordinate Judge on the ground that it was not open to the judgment-debtor to raise the plea of limitation or the plea of discharge at that stage in view of the order for transmission passed by the sub-Court of Sivaganga. On appeal from this order by the judgment-debtor, the learned District Judge disagreed with the subordinate Judge and held that the subordinate Judge should and could have gone into the objections raised by the judgment-debtor to the execution, or in other words that the pleas of limitation, discharge etc., should have been decided on the merits and he allowed the appeal and remanded the petition to the sub-Court for disposal and C.M.S.A. No. 50 of 1933 is from this order.