S T M VYRAVAN CHETTIAR Vs. R M RAYALU AYYAR NAGASWAMI AYYAR AND CO

JUDGEMENT

(1.) This is an appeal against the order of the Ct. of the subordinate Judge of Madura in E. P. No. 76 of 1946. The facts relevant for appreciating the questions raised may be briefly narrated. Thothan Chetti is the lather of Vairavan Chetti. Shanmugham Chetti is the son of Viravan Chetti. Viravan Chetti executed a mtge. in favour of the pltf. in September 1921 for himself & as guardian of his son, deft. 2, for a sum of Rs. 50,000. The mtgee. instituted O. S. No. 114 of 1925 against Vairavan Chetti & his son & obtained a preliminary mtge. decree against the share of Vairavan Chetti on 16-1-1930. Final decree was passed on 30-9-1930. The suit against his son, deft. 2 was dismissed. There were appeal & cross-appeal to the H. C. against that decree being A. S. Nos. 406 & 467 of 1930. On 14-8-1934 the H. C. confirmed the mtge. decree against deft. 1 & passed a simple money decree against deft. 2 to the extent of his share in the family properties. Meanwhile, in execution of the mtge. decree the share of deft. 1 was brought to sale, & for the balance of the amount due a personal decree was obtained against him on 15-11-1932. An appeal was filed to the H. C. against the personal decree, being C. M. A. No. 66 of 1933. That appeal also was heard along with the appeals against the preliminary decree & was dismissed on 14-8-1934. Various applns. were filed in execution of both the money decree & the mtge. decree. After giving credit to the amounts realised, the D. H. filed E. P. No. 76 of 1946 against deft. 1 for the balance of the amount due to him. On 13-12-1944 deft. 1 filed an appln. for relief under Section 14, Madras Agriculturists' Relief Act, the learned Subordinate Judge, by an order dated 2-9-1946, gave the relief. The appeal against that order is C. M. A. No. 644 of 1946, which we have dismissed. In E. P. No. 76 of 1946 the learned Judge directed the D. H. to file a memo of calculation to which the J. D. raised various objections. He also filed several memos on different basis to substantiate his objections. After hearing the objections & expressing his views on the same, the learnea Judge directed the D. H. to file a fresh memo of calculation. He filed a memo on 2-9-1946 claiming Rs. 30,005-14-0 as on 2-9-1948 plus costs of execution. On 3-1-1947 he heard arguments on the question of limitation. Having held that the appln. was not barred by limitation he accepted me memo filed by the D. H. & fixed the amount payable to him at Rs. 30,005-14-0. By an order dated 6-3-1947 E. P. No. 76 of 1947 was amended & the ascertained figure was substituted. Deft. 1 has preferred the above appeal against that order.

(2.) The learned counsel for the applt. in an exhaustive & careful argument has contended that E. P. No. 76 of 1946 was barred by limitation. He contended that the personal decree against deft. 1 was dated 15-11-1932 & therefore E. P. No. 76 of 1946, which was filed on 4-3-1946, is clearly barred under Section 48, Civil P. C. It may be mentioned at the outset that this point was not pressed before the learned Subordinate Judge. But as it raises a question of law based on facts in regard to which there is no dispute, we allowed the learned counsel to raise that plea for the first time before us. His argument as finally elaborated may he specified under four sub-heads. (1) The personal decree against deft. 1 was made on 15-11-1932. An incompetent appeal was filed against that decree being C. M. A. No. 66 of 1933. That was not a regular appeal, but was filed as a misc. appeal as if against an order, without full C. F. being paid. As no regular appeal was filed the executable personal decree for the purpose of Section 48, C. P. C. was the personal decree passed on 15-11-1932. (2) The order passed by the H. C. dismissing the appeal was not a decree witnin the meaning of Section 2(2), C. P. C. as it is not a decree adjudicating the rights of parties in a regular appeal. (3) As the decree was amended under Section 14, Madras Agriculturists' Relief Act, the rights of parties thereafter are now governed by the amended decree. The execution appln. filed on the basis of the amended decree was not maintainable. The execution appln. should not have been amended after twelve years. In support of his contentions the learned counsel for the applt. cited a long catena of cases. Most of the cases cited deal with principles well settled. We should have thought that the discussion of case-law would be unnecessary; but in view of the persistence with which the cases were pressed on us & to respect the advocacy of the learned counsel we shall proceed to consider them in some detail.

(3.) Before we deal with the cases, the relevant provision of Section 48, Civil P. C. may be read :