M L R M LAKSHMANAN CHETTIAR Vs. P L S P ALIAS SM P L MALAYANDI CHETTIAR
HIGH COURT OF MADRAS
M.L.R.M. LAKSHMANAN CHETTIAR
P.L.S.P. ALIAS SM. P.L. MALAYANDI CHETTIAR
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(1.) In O. S. No. 1 of 1935 on the file of the Subordinate Judge, Devakotta a decree was passed in favour of the plaintiffs for a sum of Rs. 30263-3-0 with interest and proportionate costs. There was a further provision that the plaintiffs do execute a registered release deed in accordance with an agreement marked in the case as Ex. A and that the decree be executed only after the execution of the release deed. The result of ihis provision was that the plaintiffs did not have the unregistered right of executing the decree before complying with the provision for execution of the release deed. The present appellants are the legal representatives of the first plaintiff whose application for executing the decree has been dismissed on the ground of bar of limitation.
(2.) A few dates have to be mentioned in order to correctly understand the relevancy of the legal arguments. The trial court passed the decree on 24-8-1937 and on appeal therefrom the original decree was confirmed on 17-4-1941. Thereafter E. P. No. 318 of 1941 was filed for the attachment of moveable properties. This application was resisted by the judgment-debtors on the ground that the decree-holders had not complied with the provision regarding the execution of the release deed and that therefore the decree could not be executed. The learned Subordinate Judge enquired into the matter and overruled the objection on 10-7-1942, giving it as his reason that the release deed filed in Court was valid and directed the attachment of the moveable properties. But the warrant could not be executed as it was impossible to find any moveable properties which could be attached. The result was that the petition was dismissed on 31-7-1942. But against the order dated 10-7-1942 overruling the contention regarding the execu-tability of the decree, the judgment-debtors filed C. M. A. No. 329 of 1942 and obtained stay of execution which was later on dissolved. C. M. A. No. 329 of 1942 came up for final disposal on 13-7-1943 and was dismissed with a reservation that the question regarding ' the validity or otherwise of the release deed filed by the decree-holders was left open. On 5-7-1946, E. P. No. 120 of 1946 was filed by the decree-holders again for execution but as it was found that the first defendant died, it was dismissed on 178- 1946. Thereafter E. P. No. 8 of 1947 was filed on 7-11-1946 for execution of the decree out of which this appeal has arisen. On the objection raised by the judgment-debtors that the execution of the decree has become barred because more than three years had elapsed from 10-7-1942, when E. P. No. 120 of 1946 was filed on 5-7-1946, the learned Subordinate Judge accepted their contention and held that the execution petition was barred by limitation. He also found that the decree-holders have complied with the provision regarding the execution of the release deed and that therefore the release deed put into court with E. P. No. 318 of 1941 was a proper one.
(3.) E. P. No. 120 of 1946 was filed within three years of the date, viz., 13-7-1943 when the High Court confirmed the order of the Subordinate Judge in E. P. No. 318 of 1941 dated 10-7-1942. If the period of limitation is computed from the date of the appellate order then E. P. No. 120 of 1946 is in time. If, on the other hand, the period has to be computed from the date of the order of the Subordinate Judge, viz., 10-7-1942 then E. P. No. 120 of 1946 was clearly out of time and the subsequent E. P, No. 8 of 1947 was also barred by limitation. What is contended on behalf of the judgment-debtors is that the confirmation by the High Court on 13-7-1943 of the order of the Subordinate Judge dated 10-7-1942, cannot be said to be a final order passed on an application by the decree-holder which was a step-in-aid of the execution as contemplated in Clause 5 of the third column of Article 182 of the Limitation Act. The phrase "the final order passed on an application made" was introduced for the first time by Act 9 of 1927 and what we have to see is, what is meant by the words "final order". It is conceded that E. P. No. 318 of 1941 was an application in accordance with law to the proper court for the execution of the decree or to take some step-in-aid of the execution of the decree. The point put forward on behalf of the judgment-debtors is that since C. M. A. No. 329 of 1942 was filed by them, the disposal of it on 13-7-1943 cannot be said to be a final order passed on 'an application by the decree-holder' for the execution of the decree or to take some step-in-aid of execution of the decree. According to their argument the final order was passed on 10-7-1942 when the executing court overruled the contention of the judgment-debtors and directed attachment of moveable properties. Thereafter, there was no impediment to the execution of the decree at the instance of the decree-holders and the period of limitation should be computed from that date. It is conceded also that if .the decree-holders had preferred an appeal to the High Court as a result of the dismissal of their application by the executing court, then the final order passed on the decree-holders' appeal would be a final order as contemplated in clause 5 in the third column to Article 182 of the Limitation Act. But since the appeal to the High Court was at the instance of the judgment-debtors, it is not possible to invoke that provision at all.;
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