ARUNACHALA REDDIAR Vs. MUTHUSADASIVA MUDALIAR

JUDGEMENT

(1.) This appeal was referred to a Bench as Govinda Menon, J., was of opinion that as it raised a question of importance it should be considered by a Bench, particularly in view of the conflict between two decisions, one of a Bench and the other of a Single Judge, on the question raised in the appeal. The Bench decision is Venkatarama Sastri V/s. Vmkatanarasimhan and the decision of the single Judge is Kamalammal V/s. Rajarathna Naicker ..

(2.) The facts out of which this appeal arises may be shortly stated. The respondents obtained a final decree in a mortgage suit on nth February, 1941. The first execution petition was filed on 5 February, 1944, for the sale of the properties. That application was returned from time to time for the filing of the sale papers and the encumbrance certificates, and while the decree-holder was praying for extension of time to comply with those requirements, the executing Court required the decree-holder to produce also a copy of the final decree. The order directing production of a copy of the final decree was made nearly two months after the filing of the application. The decree-holder obtained a month's time to produce a copy of the final decree, but as he was not in a position to produce the copy, the application was ultimately rejected by the Court on 28 June, 1944. The second execution petition was filed on 31 January, 1946. The judgment-debtor filed a counter in which he raised the contention that execution was barred by limitation as the previous execution application was not one in accordance with law, as no decree copy was filed along with the application.

(3.) This contention was overruled by the learned District Judge who heard the application, and he directed execution to proceed. The defendant filed this civil miscellaneous appeal. The matter came up for admission before Rajamannar, J. as he then was, and while admitting the appeal, the learned Judge made the following note: The point in this C.M.A. is directly governed by Venkatarama Sastri V/s. Venkatanarasimhan , but it is contended that the effect of Rules 142 and 143 of the Civil Rules of Practice has not been considered in that decision. The point is arguable. Notice. By the time the appeal came up for bearing before Govinda Menon, J., there was the decision of Somasundaram, J., in Kamalammal V/s. Rajarathna Naicker ., in which he considered the decision of the Bench in Venkatarama Sastri V/s. Venkatanarasimhan , and was of opinion that Rules 142 and 143 of the Civil Rules of Practice are mandatory and as a decree copy was not filed along with the first execution petition, the application was not one in accordance with law and would not save limitation for the succeeding execution petition. In view of this decision which is in conflict with the Bench decision, Govinda Menon, J., thought that the matter should be considered by a Bench. He, however, expressed his opinion that he was inclined to agree with the judgment of Somasundaram, J.