K GOPALAN BEING MINOR BY HIS MOTHER AND GUARDIAN, MRS JAGADAMBAL Vs. TRAVANCORE NATIONAL AND QUILON BANK LTD(IN LIQUIDATION) BY ITS OFFICIAL LIQUIDATORS

JUDGEMENT

(1.) We agree with Chandrasekhara Aiyar, J., on both the points taken before him, which were also taken before us. The order of Venkataramana Rao, J., in Application No. 1935 of 1941 in O.P. No. 158 of 1938 did not purport to supersede the three decrees under which the appellant was liable. It only gave leave to the Official Liquidators to accept in full discharge a sum of Rs. 2,500 payable in monthly instalments, and in default, they were to be paid a sum of Rs. 2,500, with interest at six per cent from date of default. We do not agree with the appellant that the only remedy which the respondent had was to execute this order as if it had superseded the decrees. The ruling in Mahiganj Loan Office Ltd. V/s. Biharee Lal Chaki I.L.R. (1937) 1 Cal. 781, has no application because in that case there was a scheme under Section 153 of the Indian Companies Act sanctioned by Court and it was held the the scheme superseded the decree which became incapable of execution.

(2.) The execution application filed prior to the present application, viz, E.P. No. 42 of 1943 cannot be said to be an application not in accordance with law. The ground on which it is contended that it was not in accordance with law is that instead of claiming a sum of Rs. 2,500 fixed in the order of Venkataramana Rao, J., the entire amount due under the decree in O.S. No. 325 of 1936 in which the petition was filed was sought to be recovered. It would then be a case where an amount in excess of what was rightly due was claimed. On this ground, it cannot be said that the application was not in accordance with law. Vide Subramanian Chettiar V/s. Muthuswami Goundan .

(3.) The decision of the Patna High Court in Durga Prasad Sahu V/s. Mst. Powdharo Kuer (1930) I.L.R. 10 Pat. 183, was relied on. In that case though the surety was declared liable only to the extent of one-sixth of the decree which was for Rs. 7,000 nevertheless the decree-holder applied for execution for the whole of the decree against the surety and the judgment-debtors. It was held in that case that the application being one for a relief which could not be granted under law, was not an application "in accordance with law " so as to save limitation. This decision is in conflict with several other decisions in which it has been held that where execution proceedings are taken to recover an amount due under a decree which had been varied or modified, the execution petition filed to recover a higher amount payable under the original decree would nevertheless be an application in accordance with law. These decisions are referred to in Subramanian Chettir V/s. Muthuswami Goundan . With respect we agree with these decisions and express our dissent from the ruling in Durga Prasad Sahu V/s. Mst. Powdharo Kuer (1930) I.L.R. 10 Pat. 183.