SREEKAKULAM VENKATANARAYANAPPA Vs. NAGELLA NARASIMHAYYA
HIGH COURT OF ANDHRA PRADESH
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(1.) This Civil Miscellaneous Appeal is directed against the Order of
the learned District Judge, Anantapur, in E.P. No.1 of 1960 in O.S. No. 34 of 1948
on his file. The Execution Petition was filed for the attachment and sale of the
properties shown in the schedule attached to it. The second decree-holder is the
son of the first decree-holder. The first judgment-debtor is the father of the judgment-debtors
2 and 3 and the husband of the 4th judgment-debtor. The first
decree-holder obtained a decree against the first judgment-debtor personally and
against the judgment-debtors 2 and 3 to the extent of the joint family properties
in their hands for Rs. 4,900 and odd on the foot of a promissory note executed by
the first judgment-debtor. The decree was passed on and August, 1948. On the
ground that the first judgment-debtor sold some of his properties, the first decree-holder
filed I.P. No.18 of 1950 on 8th August, 1950 on the file of the Sub-Court,
Anantapur, for his adjudication as an insolvent. That was resisted by the debtor in
a counter wherein he contended inter alia that the alienation was bona fide and that
he had other properties to discharge the debt due to the petitioning creditor. The
debtor was adjudicated insolvent on loth September, 1951, but the adjudication
was annulled on 6th November, 1952.
(2.) Thereafter, E.P. No. 36 of 1954 was filed in the first instance for the arrest of the
judgment-debtors 2 and 3, but that was dismissed for default. Another E.P. No. 34
of 1957 was filed for sale of the immovable properties and that also resulted in dismissal
for non-payment of batta on 13th November, 1957. Then the present execution
petition E.P. No.1 of 1960 was filed. It was resisted by all the judgment-debtors
on the ground that it is barred by limitation. The contention was that, the decree
having been passed on 2nd August, 1948 an execution petition should have been
filed on or before 2nd August, 1951. But that was not done. Instead an E.P.
No. 36 of 1954 was filed only on 29th October, 1953, admittedly beyond three years
from the date of the decree. It is, therefore, argued that the present execution
petition is also barred by limitation.
(3.) A contention was raised in the lower Court that this objection not having been
taken in the prior execution petitions, the judgment-debtors were precluded from
raising it now ; but, it was rightly rejected by the Court below and it is not pressed
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