Decided on July 08,1952

Gada Venkata Subbayya Appellant
Koyallamudi Venkanna Respondents


- (1.) THIS is an appeal under the Letters Patent against the judgment of Panchapakesa Aiyar J. in a Civ. Misc. second appeal arising on the following facts. The respondent obtained a decree in O. S. No. 243 of 1933 on the file of the District Munsif, Kovvur, for Rs. 1053 -4 -3 and costs. The decree -holder filed applications for execution of the decree the last of which was E. P. No. 338 of 1939. When this was pending, the judgment -debtor filed an application E. A. No. 565 of 1940 on 28th June 1940 under Section 20 of Madras Act, 4 of 1938 and on that application there was an order for stay passed on 2 -7 -1940. On the same day, E. P. No. 338 of 1939 was "struck off." On 28th August 1940, the judgment -debtor filed a regular application under Section 19 of Madras Act, 4 of 1938 and the decree was eventually scaled down to about Rs. 300 by an order of court dated 31st January 1941. On 22 -11 -1944 more than three years after the order scaling down the decree, the decree -holder filed E A. No. 1341 of 1944 to bring E. P. No. 338 of 1939 into the pending list and to continue further execution. The contention of the judgment -debtor was that the decree -holder's right to execute was barred by time. This plea was upheld by the lower appellate court but the learned Judge Panchapakesa Aiyar J. held that the decree -holder's right to execute had not become barred by time. The judgment debtor is the appellant before us.
(2.) THE argument of the learned counsel for the appellant was shortly as follows. It is true that when E. P. No. 338 of 1939 was "struck off" it could not be treated as a dismissal on the merits and that the order should be treated as a purely ministerial or administrative direction to keep the petition off the file of current cases. But the decree was actually amended on 31 -1 -1941 and if this was the decree which had to be executed, the application for execution should have been filed within three years from the date of the order scaling down the decree and as E. A. No. 1341 of 1944 was filed more than three years after that date, the decree -holder's rights had become barred. So the argument ran. The fallacy in this argument is to treat the scaled down decree as a fresh decree and to assume that the decree -holder gets a fresh starting point from the date of the order scaling down the decree. Not only is there no authority in support of the appellant's contention but there is authority for the position that a scaled -down decree is not a fresh decree and oven after scaling down, what can be executed is only the original decree though the amount for which execution can be levied might be less than the amount of the original decree. This argument therefore must fail. It was next contended that it was necessary for the decree -holder to file an application to revive the original execution petition which had been struck off and that application for revival must be filed within three years from the date on which the impediment to the continuance of the original execution petition had been removed viz., 31 -1 -1941, the date on which the decree was scaled down. The basis of this argument is the application of Article 181 of the Limitation Act. The answer to this contention is that here there is no question of reviving an execution petition which legally must be deemed to be dead. It may be that when, as in the case in - - 'Suppa Reddiar v. Avudi Ammal', 28 Mad 50 (FB) an execution petition is dismissed on some ground or other but subsequently that dismissal turns out to be wrong and the decree -holder becomes entitled to have the dismissed execution petition revived, then an application must be made for revival and such an application might well fall within Article 181 of the present Limitation Act, (Article 178 of the Act in - - 'Suppa Reddiar v. Avudi Animal', 28 Mad 50 (FB).) In this case, however, EP No. 338 of 1939 was not dismissed nor could it have been lawfully dismissed. There was no default on the part of the decree -holder and the court did not intend by the words "struck off" to finally dispose of the execution petition. It must be deemed to have been alive all the time and all that the decree -holder presumably did in E. A. No. 1341 of 1944 was to request the court to take up the petition and to proceed with further execution. Article 181 will not have any application to such a request. We agree with the learned Judge on both the points which were pressed by the judgment debtor before the learned Judge and before us.
(3.) THE appeal fails and is dismissed with costs.;

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