VENKATAPPIAH Vs. JAGANNADHA RAO
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(1.) The question raised in this second appeal is whether the execution of the decree for money, dated the 2 December, 1874, in Original Suit No. 560 of 1873 on the file of the District Munsifs Court of Ellore, is barred by limitation under Section 230, Civil Procedure Code, or under Art. 178 or 179 of the 2nd schedule to the Indian Limitation Act of 1877. The immediate application from which this appeal has arisen is execution petition No. 2828 of 1898, dated 11 October 1898, on the file of the District Munsifs Court of Gudi-vada, to which Court the decree was ultimately sent for execution by the District Munsif of Ellore, about the beginning of 1897.
(2.) The chief question for consideration is whether this petition is to be treated as a fresh application or as one in continuance of execution petition of the 2 December, 1886 presented to the District Munsifs Court of Bezwada, praying that the last-mentioned application (of 1886) may now be finally disposed of by sale of the landed property mentioned in the schedule thereto, which had been attached in 1887 in pursuance of that application.
(3.) In so far as there is a prayer for attachment and sale of the judgment-debtor's moveable and other immoveable properties, the petition can be treated only as a fresh application, but in so far as it prays for sale of property already attached, as aforesaid, it should be treated only as a continuation of the execution petition of the 2 December, 1886, if the latter has not yet been legally disposed of and is still pending. Both the Courts below held that the petition of 1886 is still pending notwithstanding that the same was struck off the file by the District Munsif of Bezwada on the 31 December 1887 and that the present application of October 1898 is not barred by Section 230, Civil P. C., inasmuch as the judgment-debtors by their misconduct amounting to fraud prevented the execution of the decree. The latter finding cannot be upheld inasmuch as it is founded upon no legal evidence, not to say that the averments made in the petition, even if true, do not show that the execution of the decree was prevented by fraud or force on the part of the judgment-debtors. No doubt they had recourse to all possible legal means for obstructing the effectual execution of the decree hitherto, and there may be reason to suspect that they also instigated the suits which were brought by some of their relations claiming as their own the lands which had been attached in 1887 in execution of the decree. But there is no legal evidence on record that the execution of the decree was at any time prevented by the judgment-debtors fraud. So much therefore of the present application as prays for the attachment and sale of the defendants moveable property and other immoveable property should be rejected as barred by the limitation of 12 years prescribed by Section 230, Civil Procedure Code, if not also by Article 179 of the Limitation Act, and the order appealed against should be varied to this extent.;
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