KOTTA ANNAPURNAMMA Vs. MAKKU VENKAMMA

JUDGEMENT

(1.) The question in this Letters Patent Appeal is, whether the view of the learned Judge that the execution petition in question is barred by limitation, is right. The lower Court had decided that the petition was in time and that decision was reversed by the learned Judge. The starting point under Art. 182(5) of the Limitation Act is: 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 the execution of the decree.

(2.) One Subbaraju obtained the final decree in the mortgage suit in question on 9th September, 1926, and the present petition was filed by his widow Annapurnamma on 23rd December, 1931, for execution of that decree. It is contended that this execution petition is in time, by reason of a previous petition for execution filed on 15 October, 1928, which was dismissed by an order, dated 15 April, 1929. The short point for decision is, whether the previous execution petition fulfills the requirements of Art. 182(5), for, if it does, the present petition, having been filed as it has been, within three years of the order referred to above made upon it, would be saved from the bar of limitation.

(3.) The previous petition was filed not by Annapurnamma, the widow of the decree-holder, but by his nephew one Karumuri Subba Rao. This man, alleging that the decree amount belonged jointly to his uncle and himself, filed the petition, praying that both he and Annapurnamma should be brought on the record as the decree-holder's representatives, and, that the decree should be executed for their joint benefit. Annapurnamma by way of answer filed a counter-affidavit, denying that the applicant possessed any sort of interest in the decree. It is upon a proper construction of this counter-affidavit that the decision in this appeal must turn.