CHATURVEDULA VENKATA LAKSHMINARASIMHAM Vs. SHA VEN VAKTAJI GOMAJI AND CO, SAIT VUMMAJI MANRUPCHAND FIRM

JUDGEMENT

(1.) These civil miscellaneous second appeals arise out of proceedings in execution of two decrees. The decree-holders are different but the material judgment-debtors are the same. The facts in the two cases are so identical and the execution of the two decrees proceeded on lines so closely parallel that it is sufficient for the disposal of both the appeals to state the facts in one of them.

(2.) C.M.S.A. No. 15 of 1947 arises out of proceedings in execution of the decree in O.S. No. 12 of 1933 on the file of the Court of the Subordinate Judge of Bezwada. The first of the petitions to execute this decree was E.P. No. 67 of 1934 which was dismissed on 24 July, 1934. On 8 September, 1934, the decree-holder applied in E.P. No. 127 of 1934 for rateable distribution of the proceeds of a sale to be held in E.P. No. 29 of 1933 on the file of the Court of the Subordinate Judge of Bezwada and in case no such sale was held for attachment and sale of the immoveable property mentioned in the schedule attached. E.P. No. 127 of 1934 was dismissed on 16 July, 1935, with the endorsement, As E.P. No. 29 of 1933 was dismissed for want of bidders this petition does not lie. No sale. Dismissed. On the 30 of October, 1937, the decree-holder filed an execution petition. It was returned several times for compliance with certain requisitions made by the office, and both the courts below have found that this execution petition was not finally re-presented. The correctness of this finding cannot now be questioned. It would appear that the execution petition was being returned firstly for producing the power of attorney which enabled the decree-holder's clerk to sign the execution petition and secondly, for the purpose of making a correct calculation of the interest due on the decree. I may observe in passing that the lower appellate Court has held that neither of these defects is such as to make the execution petition one not in accordance with law. The correctness of this conclusion has not been seriously challenged by Mr. Venkatarama Sastri, the learned advocate for the appellants-judgment-debtors.

(3.) On the 29 of April, 1940, still another execution petition was filed. The prayer was that certain moveables of the judgment-debtors should be attached and sold. The execution petition was not pressed and was rejected on the 6 of January, 1941, with an observation that, the question of limitation would be considered when the next execution petition is filed. On the 26 of April, 1943, the decree-holder filed E.P. No. 95 of 1943 out of which C.M.S.A. No. 15 of 1947 arises. The prayer here also was that certain moveables should be attached and sold. During the pendency of this execution petition the decree-holder filed E.A. No. 195 of 1944 for treating the main petition E.P. No. 95 of 1943 as a continuation of E.P. No. 127 of 1934 and for permitting him to proceed with the latter. E.P. No. 95 of 1943 and E.A. No. 195 of 1944 were dismissed by the learned Subordinate Judge of Bezwada on the 18 of November, 1944, on the ground that E.P. No. 95 of 1943 was barred by limitation and that the prayer in E.A. No. 195 of 1944 could not be granted. There was no appeal against the order in E.A. No. 195 of 1944 but the order in E.P. No. 95 of 1943 was appealed against to the District Court of Kistna at Masulipatam in A.S. No. 26 of 1945. The learned District Judge of Kistna allowed this appeal as also the appeal in the connected case and held that the Execution Petitions of 1943 are not barred by limitation. His reasoning can be briefly summarised. Agreeing with the learned Subordinate Judge he held that the unnumbered execution petition of 1937 was never re-presented. He further held that that execution petition could not be regarded as an execution petition in which no final order was passed and which must therefore be treated as pending. He held however that it could be regarded as a step-in-aid of execution and so treating it, he thought that what is material is the date of the application itself and not the date of any order passed on it. Since the E.P. of 1937 was filed on 20 October, 1937, it gave according to the learned District Judge a further period of three years within which the decree-holder could file a fresh execution petition. As the execution petition of 1940 was admittedly filed on the 29 of April, 1940, it followed that that execution petition was in time as also the later execution petition of 1943 which was filed within three years of the dismissal of the execution petition of 1940. Mr. Venkatarama Sastri argued that the learned District Judge was not right in treating the date of the filing of the execution petition of 1937 as the starting point even if that execution petition is to be viewed as an application to take a step-in-aid of execution. Art. 182, Clause (5) provides a period of three years, the time from which the period begins to run being defined in the following words: 5. Where the application next hereinafter mentioned has been made 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 execution of the decree or order. From the language of the Art. it is clear that whether the execution petition of 1937 is regarded as an application for execution or as an application to take some step-in-aid of execution of the decree, the starting point of limitation is the final order passed on such application. The Art. does not permit any differentiation like what the learned District Judge has attempted.