SIVALINGA THEVAR Vs. SRINIVASA MUDALIAR AND ORS.

JUDGEMENT

(1.) A .A.O. No. 519 of 1945: - This is an appeal by the third defendant against an order directing execution against him of a decree, dated 8th September, 1932 which was in respect of a promissory note executed by one Govinda Thevar. Govinda Thevar died before suit. His father Veerappa Thevar was the first defendant and his brothers Gopala and Sivalinga were the second and third defendants. The fourth defendant Veerappa Thevar was the son of the executant of the promissory note. The fifth defendant Murugappa Thevar was the son of Gopala the second defendant. There was a personal decree against defendants 1 and 2 who alone were majors while the decree against the other defendants who were minors was only against their interests in the family properties. On the 15th October, 1932 the decree -holder applied in E.P. No. 125 of 1932 for execution. This petition was dismissed on 20th November, 1933 as no sale batta was paid. On 1st November, 1933 the adult members of the family applied for their adjudication as insolvents in I.P. No. 29 of 1933 on the file of the Subordinate Judge's Court, Tiruvarur. An order of adjudication was made on 19th December, 1933. Nothing was done in the matter of execution of the decree till 8th November, 1943, when the decree -holder filed E.P. No. 70 of 1943 for attaching a portion of a fund which was in the custody of the Official Receiver who would appear to have sold in the insolvency of the adult members of the family not only their interests but also the interests of the non -insolvent members. On 29th January, 1944, the Court dismissed the petition holding that the entire sum with the Official Receiver must be taken to represent the shares of the insolvents alone. The present execution petition No. 62 of 1944, out of which this appeal arises was filed on 28th March, 1944, for the attachment of the interests of defendants 3 and 5 in the family properties on the footing that their interests had not vested in the Official Receiver by reason of the insolvency of the adult members of the family. In the execution petition it was stated in paragraph 6 that E.P. No. 125 of 1932 was closed on 20th November, 1933, on receipt of a stay order from the Subordinate Judge's Court, Tiruvarur, and on the basis of this allegation one of the prayers in the execution petition was that the execution petition No. 125 of 1932, should be revived. In view of what has already been stated, this allegation in respect of E.P. No. 125 of 1932 is not correct as that execution petition was dismissed for the decree -holder's default and not by reason of any stay order obtained from the Subordinate Judge's Court, Tiruvarur. The prayer therefore for the revival of E.P. No. 125 of 1932 was evidently not pressed before the lower Court.

(2.) OBJECTION was taken on behalf of the third and fifth defendants that the execution petition is barred by limitation. The learned District Judge overruled this objection substantially holding that since Veerappa Thevar and Gopala were insolvents a decree against them could be executed against the third and fifth defendants by an application of the doctrine of pious obligation since the execution of the decree against Veerappa Thevar and Gopala is not barred by limitation. It is contended on behalf of the third defendant, who is the appellant in this appeal, that the learned District Judge was in error in his decision on the question of limitation. It is argued that where a father and a son are sued and there is a decree both against the father and the son, the decree against the son would become barred by limitation if an application is not made within the time prescribed in Article 182 notwithstanding that for some reason or other execution of the decree against the father is not barred by time. The decisions in Venkataranga Reddi v. : AIR1941Mad440 and Padarty Balayya v. : AIR1947Mad271 are quoted in support of this argument. In our opinion, they fully bear out the contention advanced on the appellant's behalf.

(3.) THE decree -holder in the present case did nothing whatever from 1933 to 1944 when he filed the present execution petition or at any rate till 1943 when he filed E.P. No. 30 of 1943. Execution against the son's interest cannot therefore be had because of the bar of limitation whatever might be the position as regards execution against the father's share.