RANGANAYAKI AMMAL Vs. P. NATESA MUDALI
HIGH COURT OF MADRAS
P. Natesa Mudali
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(1.) THIS question that arises for determination in this appeal is whether the execution application filed by the decree -holder in E. A. No. 2881 of 1963 on 16 -9 -1963 is barred by time under Art. 182 of the Limitation Act. The decree -holder in this case obtained on 10 -3 -1954 a decree against one Sundararajan Chetty and another. Sundararajan Chetti died on 20 -2 -1955. On 9 -3 -1957, the decree -holder filed E. P. No. 364 of 1957 praying for impleading Ranganayaki, the wife of Sundararaja Chetty as his legal representative and for execution of decree against the assets of Sundararaja Chetty in the hands of Ranganayaki. On the same day C. M. P. No 714 of 1957 was filed by the decree -holder praying for impleading Ranganayaki as a legal for impleading Ranganayaki as a legal representative. Evidently at the time when these petitions were filed, the decree -holder was not aware that the deceased Sundararaja Chetti had left him surviving not only his widow but also his two sons. Notice was taken out to Ranganayaki in E. P. No. 364 of 1957 in C. M. P. 714 of 1957 but it was not served for want of the correct address of Ranganayaki. Therefore fresh steps were ordered, but the decree -holder failed to take steps with the result on 8 -10 -1957 E. P. No. 364 of 1957 was dismissed by the court. Subsequently on 3 -10 -1960 that is to say, within three years after the final order on the previous E. P., the decree -holder filed E. A. No. 3041 of 1960 for transmission of the decree to the District Munsif's court, Kancheepuram, for impleading Ranganayaki, the proposed legal representative. On 27 -3 -1961 the decree -holder filed E. A. No. 1365 of 1961 praying that the decree sent to the Kancheepuram Court might be recalled in order to enable the decree -holder to bring on record Ranganayaki, Swaminathan and Narayanan as the legal representatives of the deceased judgment -debtor. On 19 -4 -1961 the Court, without issuing notice to the proposed legal representatives, passed an order recalling the decree. On 16 -9 -1963 the decree -holder filed E. A. No. 2881 of 1962, in which he prayed for impleading the legal representatives and for transmission of the decree to the District Munsif's Court, Kancheepuram. The legal representatives of he judgment -debtor filed a counter to this application and contended that this E. A. was barred by time. This objection was overruled by the executing court and it is against this order the present appeal has been filed.
(2.) UNDER Art, 182, clause 5 of the Limitation Act, 1908, the decree -holder has a period of three years for filing his execution application and the time from which this period begins to run is the date of the final order passed on an application made in accordant with law to the proper court for execution or to take some step -in -aid of execution of the decree or order. The present application has been filed within three years after the final order in E. A. No. 3041 of 1960 as well as within three years after the final order in E. A. 1365 of 1961. The former of these two execution applications was for transmission of the decree to the District Munsif's Court, Kancheepuram, and for impleading Ranganayaki as the legal representative of he deceased judgment -debtor. Transmission was ordered as prayed for on 13 -10 -1960. The application in E. A. No. 3041 of 1960 was ordered. The E. A. in dispute has been filed within three years from 13 -10 -1960, on which date E. A. No. 3041 of 1960 was ordered. The E. A. in dispute has been filed within three years and is therefore not barred by time. As for E. A. No. 1365 of 1961, which was for recalling the decree sent to the District Munsif's Court, Kancheepuram to enable the decree -holder to bring on record the three legal representatives of the deceased, it is in my view clearly a step -in -aid of execution and the order thereon having been passed on 19 -4 -1961, and the present E. A. having been filed within three years thereafter is not barred by time. Learned counsel that E. A. No. 3041 of 1960 was itself barred by time inasmuch as it was not filed within three years after 10 -3 -1954, the date of he decree. He would also contend that though E. P. No. 364 of 1957 was filed on 9 -3 -1957, it could not save the decree from the bar of limitation, because in that E. P. Ranganayaki alone has been described as a legal representative of he deceased and not Ranganayaki and her two sons. In support of this proposition reliance is placed upon a ruling reported in Gyanendranath Basu v. Rani Nihalo Bibi, I.L.R. (1910) All 404. In that case it was ruled that an application to implead the wrong persons as the legal representatives of the deceased judgment -debtor could not be held to keep the decree alive as against the right person with respect to whom it was otherwise barred by limitation. That is not what has happened in this case. Ranganayaki was certainly one of the legal representatives of the deceased judgment -debtor. Having regard to the definition of legal representative in Section 2(11) of he Civil Procedure Code, the widow represented the estate of the deceased judgment -debtor effectively. In fact, the definition is wide enough to include even an intermeddler with the estate of the deceased. The E. P. filed for impleading one out of the three legal representatives is, in, my view, in accordance with law and can save limitation.
In the second place, as has been observed by Rustomji in Volume II on the Law of Limitation at page 1774, the view taken by the Allahabad High court in I.L.R. (1910) All 404 has not been accepted by the other High Court and it has been held that an application for execution is not bad simply upon the ground that it was made against persons, who it afterwards turned out were not the real legal representatives of the deceased judgment -debtor, the application having been filed in the bona fide belief as in this case that the persons named were such representatives and such application is sufficient to save the decree from the bar of limitation. (Vide : AIR1927Pat92 . I therefore hold that E. P. No. 364 of 1957, which was in accordance with law and which was filed within three years from the date of the decree, saved the decree from the bar of limitation. E. A. 3041 of 1961 having been filed within three years from the date of dismissal of E. P. 364 of 1957 would also be in time. The disputed E. A. having been filed within three years after the date of disposal of E. A. No. 3041 of 1960 on 13 -10 -1960 is therefore clearly in time. The view of he court below is therefore upheld. The appeal fails and will stand dismissed.
(3.) THE court records with thanks the assistance rendered by Mr. S. Sankararamakrishnan as amicus curiae.;
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