RAJAM NAIDU Vs. MEENAKSHI AMMAL

JUDGEMENT

(1.) This is an appeal under clause 15 of the Letters Patent against the judgment of Chandraseldiara Aiyar, J., confirming with slight modification rite decision of the Subordinate Judge of Cuddalore holding that the application for execution was in time.

(2.) On the 25 September, 1926, one Muthukornaraswami Chettiar obtained a preliminary mortgage decree in O.S. No. 68 of 1925 in the Sub-Court, Cuddalore, against three persons, Thayammal, Govindarajulu Naidu and Rajam Naidu. Against that decision the defendants preferred an appeal to the High Court in App. No. 132 of 1927. When the decree-holder applied for the passing of a final decree, the defendants filed C.M.P. No. 1393 of 1927 in the High Court for stay of the proceedings. Stay was granted by this Court on condition of the judgment-debtors furnishing security. In pursuance of the order of the High Court defendants 1 to 3 executed a security bond on 5 January, 1928. The relevant clause in that security bond is in these terms : We further agree that if on the execution application of the decree-holder immediately after the disposal of the appeal by the High Court an amount in excess of Us. 11,748-13-10 should be found due to the decree-holder and if the hypothecated properties do not on sale feteh Rs. 11,748-13-10, the amount for which, they have been accepted as security we and our legal representatives will be personally liable for the difference between the said execution, amount (exclusive of costs) and Rs. 11,748-13-10, the value of the security accepted by this Court.

(3.) The High Court confirmed the decree of the Sub-Court on 2nd August, 1929. The final decree was passed on 19 March, 1931. The decree-holder realised a sum of about Rs. 6,000 by sale of the property by the year 1941, the last of the execution orders being dated 21st February, 1941. On 20 February, 1944, the legal representatives of the decree-holder, the decree-holder having died in the meanwhile applied to the Sub-Court, Cuddalore, in M.P. No. 149 of 1944 for transmission of the decree and the security bond to the City Civil Court, Madras, for execution against the sureties, defendants 1 to 3, by enforcing the security bond. This application was resisted by defendants 1 to 3 on two grounds, one of which alone is relevant for purposes of this appeal. Their contention was that as the decree was more than 12 years old by the date of the petition, the execution was barred tinder Section 48 of the Civil Procedure Code. The learned Subordinate Judge overruled this objection and directed transmission of the decree to the City Civil Court. This order was confirmed by Chandrasekhara Aiyar, J., and this Letters Patent Appeal is against his decision.