T.V.K. CHOKKALINGA TEVAR Vs. KAILASA TEVAR AND ORS.

JUDGEMENT

(1.) THIS Appeal arises in execution of the decree in O.S. No. 2 of 1934 on the file of the District Court, East Tanjore at Nagapattinam. The decree -holders' application to execute the decree has been held to be barred by the lower Court on the ground that it was filed more than three years after the final order was passed on an earlier application. The facts giving rise to this litigation are as follows:

(2.) HOW the application for cheque came to be ordered is in the following way. Against the same judgment -debtors there were other decrees in O.S. Nos. 48 of 1932, 43 of 1932 and a number of other suits as well and in all of them large sums of money were decreed in favour of the plaintiffs as against the present judgment -debtors and in execution of some of the decrees, the properties belonging to defendants 1 to 5 were the subject of attachment. At that time an application was filed by the second defendant in the present suit in the other proceedings stating that he and his relations have agreed to sell some of the attached properties and other lands in Swarnakkudi village in favour of one Ramanuja Mudaliar of Tiruyarur and permission of the Court was, therefore, requested for the same. The affidavit filed in support of the application by V.K.G. Kandaswami Thevar sets out the reasons why the application was made. In paragraph 5 of the affidavit it is stated that the second defendant and his brothers have negotiated for sale of 156 acres 71 cents as well as a few acres of their lands in the said village of Swarnakkudi which have not been attached to Sri G. Ramanuja Mudaliar of Tiruvarur for a sum of Rs. 94,000. There was a mortgage decree for Rs. 44,500 and a second mortgage for Rs. 6,500 over the said properties. It was therefore proposed to pay Rs. 51,000 towards the said encumbrances and Rs. 3,000 towards their share of sale expenses. It was agreed that defendants 2 and 5 should take only Rs. 4,174 -8 -0 for family expenses and for paying off sundry debts. The balance of the amount of Rs. 35,825 -8 -0 would be available to the decree -holders in the various suits mentioned by them. It was further alleged that the proposed sale was very advantageous to the debtors as well as the creditors as about fifty per cent, of the decree debts would be paid off thereby. Then the next statement is that they have made the proposal to many of the creditors who have approved of the same and given their consent in writing.

(3.) IT has been held by a Full Bench of this Court in Sankara v. : AIR1943Mad129, that an application by a decree -holder for delivery of possession of the immovable property purchased by him in a sale held in execution of a decree is a step -in -aid of the execution of the decree within the meaning of Article 182(5) of the Limitation Act, as also an application for the issue of cheque for payment out of money realised in execution of the decree is a step -in -aid of execution. Mr. Venkatadri for the appellants relies upon this decision for the contention that in the present case the application for the issue of cheque should be deemed to be one that was contemplated in the Full Bench decision cited. Having perused the judgment of the Full Bench we do not find any expression of opinion which help the case of the appellants entirely. But the learned Chief Justice who delivered the Judgment in the Full Bench case approved of the decision in Thangi Shettithi v. Duja Shetti, (1917) 35 M.L.J. 575, where Spencer and Krishnan, JJ., have held that it is not necessary that the money should come into the Court as a result of the execution of a particular decree but it was sufficient if the money came in by the other processes as well. In that particular case what happened was that in order to set aside an ex parte decree a sum of money was deposited into Court as security and it was that money that was sought to be realised in execution of the decree. The learned Judges observed as follows: