RAJA RAJESWARA SETHUPATHI ALIAS MUTHURAMALINGA SETHUPATHI (DEACEASED), RAJAH OF RAMNAD, THROUGH HIS AUTHORISED DEWAN T SJAMBUNATHA AIYAR Vs. KUPPUSWAMI PILLAI

JUDGEMENT

(1.) The question in this appeal is whether the application for execution is barred by limitation. The decree is dated 1 December, 1917. The application for execution was presented on 28th June, 1926, the date on which the first Court re-opened after the summer recess of 1926. The prior execution application was "presented on 1 February, 1923. It is clear that the present application would be barred by limitation unless the facts relied upon by the decree-holder are sufficient to save limitation. The judgment-debtor was committed to jail on 28 February, 1923. This decree-holder has remitted by postal money orders to the Jail Superintendent subsistence allowances necessary for the detention of the judgment-debtor in prison. Those remittances had been made on 24 March, 1923, 23 April, 1923, 23 May, 1923 and 25th June, 1923. It is argued that the remittance made on 25 June, 1923, is sufficient to save limitation as being a step-in-aid of execution. If this payment could be considered to be a step-in-aid of execution, it is clear that the present application is not barred by limitation. The Lower Courts held that as the payment was made to the Superintendent of Jail, it cannot be considered that the application was made to the "proper Court" within the meaning of Article 182 of the Limitation Act, to save limitation and therefore the present petition is barred by limitation.

(2.) The respondent relies on a decision of this Court in Ramudu Chetti V/s. Varadaraja Chariari by Krishnan, J. The facts of that case are not very clear. Apparently the learned Judge's view is that if payment was made within three years of the prior application, then such payment would be a step-in-aid of execution provided there was an application. And with regard to the application the learned Judge says: We cannot presume that an application would have been made, when the decree- holder paid such charges.

(3.) Whether the application should be one to the Court or whether it would be enough if that was made to the Superintendent of Jail is not made clear in that judgment. But both the Courts in that case seem to have been of the opinion that a payment of maintenance charges would be a step-in-aid of execution. The first appellate Court did not consider the question whether there was an application at all because the payment in that case was made admittedly three years after the previous application. Therefore I find that that decision does not render much help for deciding this case.