NACHARAMMAL AND ORS. Vs. VEERAPPA CHETTIAR

JUDGEMENT

(1.) THIS appeal arises out of proceedings in execution and the question for consideration is as to whether the execution petition out of which the appeal arises is barred by limitation. The decree in the suit was passed on the 1st December, 1922. It directed delivery of certain properties on payment of a certain amount. The original decree directed that Rs. 17,644 -12 -0 should be deposited. There was an appeal and the appellate Court on 28th September, 1926, modified the decree of the first Court and reduced the amount to be deposited to Rs. 6,113 -8 -0. It was taken to this Court in second appeal which was dismissed on the 21st November, 1930. The first execution petition, E.P. No. 169 of 1933, was filed on the 21st November, 1933. After enquiry as regards the amount that had to be deposited an order was passed on the 23rd March, 1934, directing the decree -holder to deposit into Court Rs. 6,960 -0 -2 by a particular date fixed by the Court. As the amount was not deposited, the petition was dismissed on the 9th April, 1934. The matter was taken to the Madura District Court in appeal which appeal was dismissed on the 7th March, 1936. A civil miscellaneous second appeal was filed in this Court, No. 127 of 1936, which was dismissed on the 17th August, 1939. This petition, E.P. No. 105 of 1942, out of which this appeal arises, was filed on the 13th August, 1942.

(2.) THREE objections on the ground of limitation were raised, one of which was that the application E.P. No. 169 of 1933, filed on the 21st November, 1933, was not a proper application in accordance with law, as the amount directed to be paid before the decree -holder could obtain delivery of possession was not deposited with the application. The second objection raised was that the present application, E.P. No. 105 of 1942, was filed more than three years after the date of the final order on E.P. No. 169 of 1933. It was contended, however, that the final order would be the order in C.M. S.A. No. 127 of 1936 which was passed by this Court on the 17th August, 1939. The third objection raised was that as this application was filed on the 13th August, 1942, more than twelve years after the date of the lower appellate decree it was barred by limitation under Section 48 of the Code of Civil Procedure. With regard to the first objection it has been held by a Bench of this Court that even though the amount which has to be deposited before delivery could be given was not deposited with the application, it would still be a proper application if it otherwise fulfils the requirements of the Code of Civil Procedure - -Vide Alagiriswami Naidu v. Venkatachalapathi Iyer, (1907) 17 M.L.J. 566 :, I.L.R. 31 Mad. 77.

(3.) THE appeal was argued mainly on the objection based under Section 48 of the Code of Civil Procedure. That section runs thus: