Decided on December 07,1970

Thangammal By Power -Of -Attorney Agent M. Guruswami Gounder And Anr. Respondents


G. Ramanujam, J. - (1.) THE appellant is a judgment -debtor in O. S. No. 241 of 1955, District Munsif's Court, Sholingur. The widow of the decree -holder in that suit, who is the first respondent herein filed an application for execution of the decree obtained in that suit on 2nd February, 1969. In that application, the first respondent sought to execute the decree as the legal representative of the decree -holder, and she also sought for recording her name as the legal representative of the decree -holder. There was some return by the Court and ultimately that execution petition was not pressed. There was a second execution petition filed on 9th February, 1962. Therein the first respondent again sought to execute the decree as the legal representative of the decree -holder by producing a succession certificate. Somehow, that execution petition also was not prosecuted further but dismissed as not pressed. Later, on 8th February, 1965, a third execution petition was filed and that also was dismissed as not pressed. The first respondent then filed a fourth execution petition on 17th January, 1968, out of which the present appeal arises. In that execution petition, the first respondent was impleaded as the legal representative of the decree -holder by an order of Court dated 20th August, 1968. This last execution petition was resisted by the appellant -judgment -debtor, on the ground that the execution petition was barred by time, it was his case that the earlier three execution petitions filed under Exhibits A -1 A -2 and A -3 were all ineffective and that they cannot be taken as execution petitions filed in accordance with the law and as steps -in -aid, so as to attract Article 182 (5) of the Limitation Act, 1908. The said objection was overruled by the executing Court, which allowed the execution to proceed, after holding that the execution petition was not barred by time. That view has also been upheld by the lower appellate Court.
(2.) IN this appeal, the learned Counsel for the appellant contends that the earlier execution petitions filed under Exhibits A -1, A -2 and A -3, having been filed by the first respondent, without getting the permission from the Court to proceed with execution and without getting herself impleaded as the legal representative of the decree -holder, cannot help to save the present execution petition from the bar of limitation. But this question has been considered in Alagiriswami Naidu v. Venkatachalapathi Iyer, I.L.R.(1908) Mad. 77 :, 17 M.L.J. 566. In that case a decree was passed on 26th March, 1898, and the decree -holder having died, his widow sought to bring herself on record on 12th February, 1901. That application was dismissed. Subsequently, she filed a fresh application. There the question arose whether the subsequent execution proceedings were saved by the application filed by the wife on 12th February, 1901. A Division Bench of this Court held that the earlier application filed by the wife was in accordance with law and that on the death of the decree -holder, the right to execute the decree devolved on his widow, who was entitled without being brought on record to apply for execution under the Civil Procedure Code. This view has also been approved and followed by a Full Bench of the Andhra Pradesh High Court in Somayajulu v. Annappa, (1957) 1 An.W.R. 83 : : A.I.R. 1957 A.P. 66, wherein it has been held that an application by the legal representative of a deceased decree -holder under Order 21, Rule 16, Civil Procedure Code, even though does not contain a specific prayer for recognition, would nevertheless be an application made in accordance with law within the meaning of Article 182 (5) of the Limitation Act, and that an order for substitution of the name of the legal representative on record is not a condition precedent to his right to apply for execution. In view of this legal position, the contention advanced on behalf of the appellant cannot be upheld. The appeal is therefore dismissed, but in the circumstances no costs. No leave.;

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