VIRINA SOORAYYA Vs. VIRINA MALLAYYA
HIGH COURT OF ANDHRA PRADESH
Referred Judgements :-
CHAMBASAPPA NAGAPPA V. HOLIBASAPPA BASAPPA
PANALAL JAGANNATH V. COLLECTOR OF MANDALAY
KADIMCHERJA RAJU V. KONDAPI AYYAPARAJU
MANICKAM CHETTIAR V. INCOME TAX OFFICER,MADURAI
NAKAMMA V. BHANSAYYA
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(1.)Rao, C.J.(1)This is a Letters Patent Appeal against the Judgment of Balakrishna Ayya J., of the Madras High Court. The question raised is one of limitation and the following facts may be useful for appreciating it.
(2.)Veerina Venkatarathnam and some others filed O. S. No. 95 of 1938 on the file of the District Munsifs Courtof Rajamundry, to enforce a mortgage. On 7-10-1938, a preliminary decree was made therein. Final decree followed on 9-2-1940. On 30-1-1933, as the decree-holders made default in payment of income-tax, the Income-tax Officer issued a certificate to the Collector of East Godavari instanating to him that a sum of Rs.1,080-1-0 was due from the decree-holders and requesting him to recover the same under the provisions of S. 46(2), Indian Income-tax Act.Pursuant to the certificate, the Collector attached thed decree in O. S. No. 95 of 1938. He also requested the court to stay execution of the decree. On 4-7-1941, the Collector filked an execution petition for executing the decree but it was rejected for default on 6-9-1941. He filed another execution application E. P. No. 305 of 1941 on 29-10-1941, but that was dismissed on 12-8-1943, on the objection taken by the decree holders that the Collector had no right to execute the decree. On 1-12-1944, the decree holders filed an execution petition to execute the decree. The District Munsif and on appeal, the Subordinate Judge held that the application was barred by limitation as having been filed more than three years from the dateof the final order.The decree-holders preferred an appeal to the Madras High Court against the order of the Subordinate Judge. Balakrishna Ayyar J., agreed with the Subordinate Judges view that the said E. P. was barred by limitation and dismissed the appeal. But, in dismissing the appeal, he granted leave to prefer a Letters Patent Appeal. One of the decree-holders his has preferred this appeal against the order of Balakrishna Ayyar J.
(3.)Mr. Rama Rao, learned Coiunsel for the appellant raised before us two points: (i) The execution application filed by the Collector was one in accordance with law and the present execution application having been filed within three years from the date of the final order of the said application, it would be well within time. (ii) The stay order issued by the Collector would enable the decree-holder to exclude the time covered by the operation of the said order and, if so excluded, the present application would be within time.
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