Decided on March 30,1953



Govinda Menon, J. - (1.) In our opinion this appeal has to be allowed and E. P. No. 88 of 1947 remanded to the Subordinate Judge of Sivaganga for disposal on the merits. The learned Subordinate Judge has held that the execution is barred on the ground that more than twelve years have elapsed from 14-8-1934 when this Court allowed A. S. No. 406 of 1930, and such being the case E P. No. 88 of 1947 is barred under Section 48, Civil P. C.
(2.) What happened was that for the restitution of costs realised by a decree-holder in O. S. No. 114 of 1925 on the file of the Sub-Court, Madurai one Sattayyappa Chettiar executed a security bond in favour of the Court. In that security bond Sattayappa Chettiar stated that he himself personally and the joint family properties belonging to him and his two sons would be made liable in case the decision in A. S. No. 406 of 1930 went against the persons on whose behalf the security bond was executed. On 14-8-1934, this Court in A. S. No. 406 of 1930 allowed the appeal and thereby made the security bond enforceable. Thereafter by E. A. No. 750 of 1934 the plaintiff-decree-holder, who is the appellant in this appeal, tried to enforce that security bond. To that application he impleaded as respondent 1, one minor Shanmugham Chettiar through guardian Shanmugham Chettiar, and respondents 2, 3 and 4 respectively Sattayyappa Chettiar, the executant of this security bond and his two sons, Arumugha Chettiar and minor Sokkanarayanan. Arumugham Chettiar was a major and Sokkanarayanan was admittedly a minor at that time. On 24-10-1938 the Subordinate Judge of Madura found that the security bond can be enforced in execution, and decreed that respondents 1 to 4 in that application of whom respondents 2 to 4 are the persons with whom we are now concerned--should pay the principal amount of Rs. 2253-31 to the plaintiff-petitioner with interest that is provided in the security bond. That is, by means of this order the agreement of the undertaking given in the security bond was made enforceable, as if a decree had been passed thereupon. Against that order Arumugham Chettiar filed an appeal to this Court, C. M. A. No. 364 of 1939 in which the only respondent was the plaintiff-petitioner Rayalu Iyer, Nagaswami Iyer and Co. The father Sattayyappa Chettiar and the minor son Sokkanarayanan Chettiar were not made parties to that appeal. On 2-4-1941 this Court consisting of Wadsworth and Patanjali Sastri JJ. allowed the appeal of Arumugham Chettiar and set aside the order of the lower Court directing that the joint family properties of Sattayyappa Chettiar and his two sons can be proceeded against, and held that such an order would not be binding on the share of Arumugham Chettiar or on him personally. But in their order the learned Judges have held as follows : "In this view it is unnecessary to go into the other questions that have been argued before us. We wish only to add that this decision will govern only the parties now before us and is not intended to affect the rights of the respondent as against the other parties to the proceeding in the Court below." Though Sattayyappa Chettiar and Sokkanarayanan were not made parties to that appeal, still the decision arrived at by the Subordinate Judge in E. A. No. 750 of 1934 as against Sattayyappa Chettiar and minor Sokkanarayanan was confirmed.
(3.) Now the question is what is the period of limitation for the execution of the undertaking given, in the security bond. The learned Subordinate Judge in the Court below is of opinion that since the decree of this Court in A. S. No. 406 of 1930 was passed on 14-8-1934 that date should be considered as the starting point of limitation from which the period will run for the enforceability of the security bond. But the learned Subordinate Judge forgets the fact that it is not any right obtained by the decree in O. S. No. 114 of 1925 or its appeal A. S. No. 406 of 1930 that is now sought for by the plaintiff. What the plaintiff seeks is to enforce the security bond, the enforcement of which became effective only as a result of the Subordinate Judge deciding that it can be enforced as such without a fresh suit. This Court held as against Arumugham Chettiar that the security bond cannot be enforced in execution. But this Court confirmed the decision of the Subordinate Judge regarding the enforceability of the security bond against Sattayyappa Chettiar and his minor son Sokkanarayanan Chettiar; and that order was made on 24-10-1938. More than 12 years have not elapsed since that date when E. P. No. 88 of 1947 was filed. Therefore in our opinion Section 48, Civil P. C. will not be a bar against the enforceability of the security bond. The cause of action for enforcing that arose in favour of the plaintiff only by the order of the Subordinate Judge dated 24-10-1938. Therefore the learned Subordinate Judge is in error in thinking that the terminus a quo started from 14-8-1934, the date of the decision in A. S. No. 406 of 1930, when this Court reversed the decision of the lower. Court in O. S. No. 114 of 1925. We are, therefore of opinion that the execution petition is not barred by limitation.;

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