RAMANANDHAN CHETTIAR Vs. VEERAPPA CHETTIAR

JUDGEMENT

(1.) These appeals arise out of certain execution proceedings in the Court of the Subordinate Judge of Ramnad at Madura, namely E.P. No. 104 of 1928, E.A. No. 436 of 1929 and E.P. No. 42 of 1931. The Substantial petition was E.P. No. 104 of 1928 in which Veerappa Chettiar and his four minor brothers were the petitioners and they sought as attaching decree-holders in O.S. No. 330 of 1911 to execute the decree in O.S. No. 153 of 1910. E.A. No. 436 of 1929 was for rateable distribution by the same petitioners and it was heard along with E.P. No. 104 of 1928 and both were disposed of by one and the same order. The learned Subordinate Judge found that the decree-holder in O.S. No. 153 of 1910 who was the judgment-debtor in O.S. No. 330 of 1911 was barred or estopped from setting up the plea that the execution of the decree in O.S. No. 330 of 1911 was barred by limitation. Though as a matter of fact he found that the decree was barred by limitation he found however that, in the absence of an application to execute the decree in O.S. No. 330 of 1911, E.P. No. 104 of 1928 was not maintainable except to the extent of the costs allowed in appeal No. 26 of 1918 on the file of the High Court in favour of the petitioners and the costs of execution in respect of those costs. In substance, therefore, E.P. No. 104 of 1928 ended against the petitioners. The other application E.A. No. 436 of 1929 shared the same fate. E.P. No. 42 of 1931 was an application put in after the disposal of the other two petitions and it was for liberty to execute the decree in O.S. No. 153 of 1910, and it proceeded on the basis that E.P. No. 104 of 1928 had not been dismissed and was still pending. That petition which was heard by a different Subordinate Judge was also dismissed though the principal findings by the learned Judge were in favour of the petitioners. He held that, though E.P. No. 104 of 1928 must be deemed to have been dismissed on 17 March 1931, nevertheless liberty if necessary could be given to execute the decree in O.S. No. 153 of 1910, and that the decree-holder in that suit was barred by res judicata from pleading that the execution of the other decree was barred by limitation. The Judge further found that liberty to execute the decree was really unnecessary, and he declined to give such liberty because it was unnecessary.

(2.) C.M.A. No. 344 of 1931 is the appeal by Ramanadhan Chettiar the legal representative of the judgment-debtor in O.S. No. 330 of 1911, and the respondents are Veerappa Chettiar and his four minor brothers. In C.M.A. No. 394 of 1932 the parties are arrayed similarly, and that is an appeal from the order in E.P. No. 42 of 1931, whereas C.M.A. No. 344 of 1931 is an appeal from the order in E.P. No. 104 of 1928. The remaining. C.M.A. No. 234 of 1932 is from the. order of the Subordinate Judge in E.P. No. 104 of 1928 dated 8 February 1.932 to the effect that the petition had already been dismissed on 17 March 1931. For the purpose of convenience the appellant in C.M.A. No. 344 of 1931 and 0. M.A. No. 394 of 1932 will be referred to as the appellant, and Veerappa Chettiar and his. brothers who are the respondents in these appeals and the appellants in C.M.A. No. 234 of 1932 will be referred to as the respondents.

(3.) About the facts there is no dispute and the facts consist mainly of the proceedings in Court. The respondent's father was the assignee of a major portion of the decree in. O.S. No. 330 of. 1911. He died sometime in 1924 and the respondents came on record thereafter. The suit O.S. No. 330 of 1911 was instituted on foot of a mortgage, and the preliminary decree therein was made on 7 December 1912. Even in that decree the personal liability of the principal defendant who is the father of the appellant is declared. The final decree was dated 5 February 1915, and instead of that decree itself embodying a conditional decree personally against the mortgagor for the balance due after sale it merely provided that the plaintiff be at liberty to apply for a personal decree for the amount of such balance. It was sometime after this final decree that the respondent's father got the assignment of a portion of the decree in the other suit. He applied in 1923 in E.A. No. 151 of 1923 as assignee decree-holder for a personal decree against the assets of the appellant's father. That application was made on 11 April 1923, and a personal decree was actually passed on 11 August 1923. On 26th July 1923 while this application was pending, another application, namely E.A. No. 174 of 1923, for attachment of the decree in O.S. No. 153 of 1910 was put in. On this petition attachment and notice were ordered on 30 July 1923. The notice of attachment was actually signed on 14 August 1923, that is to say, three days after the personal decree had been passed, and it appears to have been received by the Court to which it was issued on 17th August 1923, and the attachment was made absolute on 10 October 1923. It may be mentioned in this connection that after 1925 the Court to which the notice was issued ceased to exist and the jurisdiction of that Court became vested in the Court which issued the notice. The personal decree in question was for a sum of about three lakhs and a quarter with interest. Apparently the only means of executing this personal decree was by proceeding in execution of the decree attached i. e., the decree in O.S. No. 153 of 1910. Execution of that decree however had been stayed by the High Court in connection with the appeals preferred by various parties thereto.