KONATAM KOTIGADU Vs. KOTTURI SUBBAYYA

JUDGEMENT

(1.) THE legal representative of the first judgment-debtor deceased is the appellant in this civil miscellaneous second appeal. Two contentions were raised on his behalf in the Court below. One was an objection based on some ground of res judicata. That has not been argued here. THE second ground is one of limitation. It has been contended by the learned vakil for the appellant that the third execution petition made on the 29 June 1923 about two years and more after the death of the first judgment-debtor did not apply for execution against the legal representative of that deceased judgment debtor and cannot, therefore, be regarded as an execution application in accordance with law within the meaning of Clause 5, Art. 182, Limitation Act. At one stage I understood the learned vakil for the appellant to contend that the uncontradicted allegation on his part was that the execution-creditor-petitioner knew of the death of the first judgment-debtor and that in spite of such knowledge he made the application against the deceased person without claiming execution against his legal representative .as he would have done. But I found no such allegation in the affidavit filed by his client in the Court of first instance. It is, therefore, difficult to see how an execution application filed by the decree-holder in such circumstances can be held not to be in accordance with law. My attention has been drawn to the decision in the case of Madho Prasad V. Kesav . Prasad [1897] 19 All, 337 In that case the learned Judges, who had before them the case of a money decree and an attachment that was set aside by the executing Court on a claim petition made by a stranger, held that a series of subsequent execution applications without claiming relief against the judgmentdebtor's legal representative could not save limitation. But if I understand the learned Judges in that case correctly, they seem to think that if there had been a subsisting attachment at the time of the application or an order for sale the matter might be different. Here, however, it is not the case of a mere money decree. THE relief granted was relief in the first instance by sale of the property and may be of the interest of the judgment-debtor in the property. THE raison detre therefore of that decision would not apply to the present case because the learned Judges have in their very judgment pointed out a distinction which would really cover the present case. But I do not think for my purpose it is really necessary to rely upon that case at all because it is admitted before me by the learned vakil for the appellant, that even though in the execution petition of the 29 June 1923 the legal representative of the first judgment-debtor was not shown, still the execution application was against the other judgment-debtor under the decree, and under the explanation in Art. 182 when there is a joint decree against several judgment-debtors an application for execution against any one of them has the effect of saving the running of time even as against the other judgment-debtors. I have not been satisfied by the learned vakil for the appellant that the application for execution of the 29 June 1923 was not in accordance with law or that otherwise the application now in question is barred by the law of limitation.

(2.) THE appeal fails and is dismissed with costs.