Decided on November 12,1963



Anantanarayana Ayyar, J. - (1.) The appellant, Cherukuru Brahmiah, feels aggrieved with the order of the learned Additional District Judge. Nellore in A. S. No. 18 of 1961 on his file.
(2.) The relevant facts are as follows: Cherukury Brahmaiab, obtained a money decree in O. S. No. 4 of 1956 on the file of the Sub Court, Kavali thereinafter referred to for convenience as Kavali decree) against Kurapati Chelwapilla Setti and some others. Setty also obtained another money decree against Brahmaiah in O. S. No. 5 of 1956 on the file of the Sub-Court, Nellore (hereinafter referred to for convenience as Nellore decree). An appeal judgment, which was final as regards the Kavali decree, was pronounced on 31-12-1956. Consequently, the last date for filing E. P. regarding that decree was 31-12-1959. Brahmaiah filed E. P. No. 57 of 1980 in execution of that Kavali decree on 22-3-1960. He had not taken any execution before, though the period of three years from the date of the appellate judgment had expired on 31-12-1959. His contention was that limitation was saved for various reasons connected with execution proceedings in the Nellore decree. On 13-2-1957. Setty filed E. P. No. 43 of 1957 (Ex. A-1) in the Sub-Court, Nellore in which be prayed for attachment of Kavali decree, for substitution of himself as decree-holder in the Kavali decree and to enable him to execute that decree in the Kavali Court, as specified in E. P. No. 49 of 1957. The learned Subordinate Judge, Nellore passed an order on 22-2-1957 (Ex. A-2) attaching the decree. In pursuance of the order, he issued a notice (Ex. A-2) as follows: "..... You are therefore requested to stay the execution of the decree of your Court until you receive an intimation from this Court that the present notice has been cancelled or until execution of the said decree is applied for by the holder of the decree now sought to be executed or by his judgment-debtor." Brahmaiah did not file any counter or raise any objection. On 13-3-1957, the learned Subordinate Judge, Nellore closed the E. P. with an order as follows: "Attachment effected. Petition closed." Subsequently, on 10-2-1960, Setty filed E. A. no. 47 of 1960 in O. S. No 5 of 1956 (Ex. A-3) in the Sub-Court. Nellore saying that the plaintiff in this case had given up the attachment which had been made of the Kavali decree and praying for trans-fer of his decree (Nellore decree) to the Sub-Court, Kavali for execution against Brabmaiahs properties. In that E. A. No. 47 of 1980, Brah-maiah filed a counter raising various objections. But, all the same, the learned Subordinate fudge passed an order in E. A. No 47 of 1960 on 28-6-1960 ordering the transmission to the Sub-Court, Kavali, and leaving open the various questions raised by Brahmaiah in his counter.
(3.) Meanwhile, Brahmaiab filed on 22-3-1960 E. P. No. 57 of 1960 in the Kavali Court in execution of his decree (Kavali decree) claiming only the amount due under the decree after setting off the amount which was due by Brahmaiah to Setty under the Nellore decree. The Kavali decree was personally against Setty and against joint family property in the hands of all the judgment-debtors. In E. A. No. 57 of 1960, Brahmaiah impleaded four respondents namely, defendants 1, 3, 4, 5, in O. S. No. 4 of 1956. They were judgment-debtors. Of them R-1 is Setty. Contention was raised by the respondents that the decree was barred by limitation. But, Brahmaiah contended that limitation was saved. The learned Subordinate Judge held that the decree was barred by limitation and dismissed the E. P. Brahmaiah filed A. S. No. 18 of 1961 before the learned Subordinate Judge, Nel-lore. The appeal was heard by the Additional District Judge who confirmed the finding of the learned Subordinate Judge and dismissed the appeal.;

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