Decided on February 17,1950

Naranappa Naicker Appellant
Ramalingam Pillai And Ors. Respondents


Raghava Rao, J. - (1.) THE question in these Civil Miscellaneous Appeals is whether the execution petition out of which this appeal arises is barred by time. The Court below has held that it is.
(2.) THE appellant is a mortgagee decree. holder, who is in the present proceeding seeking to execute the decree against the properties in Sch. d, to the plaint in the hands of the contesting respondent, respondent 22, who came to be impleaded before decree as the legal representative of defendant 5 in the suit. Defendant 15 is the purchaser of the properties subsequent to the mortgage as well as the charge. The present execution petition against defendant 5 is one presented admittedly more than three years from the date of the order on the last execution petition, namely, 31st January 1941. It was contended for the decree -holder in the Court below that the present execution petition stood saved from the bar of limitation by a letter of acknowledgment passed by defendant 15, Ex. P -1, dated 5th January 1944. The contention was rejected by the Court below on the ground that Ex. P -1 was not a bona fide, but collusive document. The finding of collusion and fraud recorded by the Court below cannot, in our opinion, be accepted. It is not based upon legal testimony, but only upon suspicion. There is no evidence on the side of the contesting respondent at all, the evidence oral and documentary being all on the side of the appellant.
(3.) BUT then, this does not dispose of the appeal in favour of the appellant. The respondent seeks to support the order of the Court below on the ground that no acknowledgment made by defendant 15, the purchaser of the property subsequent to the charge, can be binding on the charge -holder or her legal representative. The contention is that under Section 19 , Limitation Act, defendant 5 or her legal representative, respondent 22, cannot be treated as a person deriving title or liability from defendant 15 long prior to whose purchase the charge in favour of defendant 5 had come into existence. The contention is, in our opinion, borne out by the ruling of a Full Bench of this Court in Pavayi v. Palanivela,, I.L.R. (1940) Mad. 872:, A.I.R. 1940 Mad. 470 to which our attention has been drawn by the learned counsel for the respondent and must, therefore, be accepted whatever the view of this Court prior to that ruling.;

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