ADAIKAPPA CHETTIAR Vs. NATESAN CHETTIAR

JUDGEMENT

(1.) The lower Court made an order transmitting the decree for execution as against defendants 4 and 5. This appeal has been filed by defendant 5 who impeaches that order. The following pedigree may be found useful:

(2.) A certain Sreenivasa Naicker filed O.S. No. 10 of 1912 in the Sub-Court of Tuticorin for the recovery of about Rs. 23,000 due upon a promissory note executed by Lakshmana, defendant 1, in his favour. In that suit four persons were joined as defendants, Lakshmana and his son (representing one branch) and the two sons of Ramaswami (representing the other branch). I may note at once that defendant 5 was not made a party to that suit. A decree was passed on 10 February 1913, against defendant 1 personally and against the family properties, of all the defendants that had been impleaded. The plaintiff, Sreenivasa, assigned the decree on 27 July 1914, in favour of the respondent Natesa Chetti. His right as assignee-decree-holder was recognized by the High Court on 23 January 1917. On 28th November 1924, defendants 1 and 4 were respectively brought on the record as the legal representatives of the second and third, who had in the meantime died. Several execution applications were from time to time filed, so that the decree might not get barred under the three years rule. The respondent filed the execution application (E.A. No. 1028 of 1928) which is the subject of this appeal in the usual form, on 1 October 1928. In addition to that application, he filed on the same date a separate petition for bringing defendant 5 on the record, in the place of his deceased father, defendant 3. The two applications were resisted by both defendants 4 and 5, but their objections were overruled by the learned Subordinate Judge, who directed the decree to be transmitted for execution as against them.

(3.) From this statement, it is clear that when the execution application in question was filed, more than 12 years had elapsed from the date of the decree. Section 48, Civil P.C., would ordinarily be a bar to the execution, but the respondent relies upon certain fraud, under Clause 2 (a) of that section, which he contends prevents the running of the Statute of Limitation. That clause runs thus: Nothing in this section shall be deemed (a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of 12 years, where the judgment-debtor has by fraud or force, prevented the execution of the decree at some time within 12 years immediately before the date of the application.