P P AR RM PERIAKARUPPAN CHETTIAR Vs. K A P CT C T CHIDAMBARAM CHETTIAR

JUDGEMENT

(1.) THESE appeals relate to the execution of a money decree passed in O. S. No. 208 of 1932 on the file of the Sub-Court. Devakottai C. M. A. Nos. 207 and 208 of 1957 are filed by the first and the sixth defendants, (the latter or whom died during the pendency of the appeals), who were the judgment-debtors under the decree, against the orders of the Subordinate Judge of Devakottai transmitting the decree for execution by the Sub Court at Kumbakonam and allowing concurrent execution to proceed, as the decree-holder had already filed E. P. No. 124 of 1951 in the Sub Court, Devakottai, which is seated to be pending. C. M. A. No. 55 of 1958 is filed by the decree-holder against the order of the transferee court, namely, Sub-Court of Kumbakonam in E. P. No. 68 of 1957, holding that that execution petition is barred under the provisions of S. 48 C. P. C. One of the complaints of the judgment-debtors in the former two appeals is that the order for transmission of the decree for execution by the Sub Court devakottai, was passed without notice to them and that the learned Subordinate judge had in, addition made an observation that the decree was not barred by the provisions of S. 43 C. P. C. We are of opinion that the complaint urged on behalf of the judgment-debtors in regard to these illegalities committed by the fewer court is justified. Normally, me would lace set aside the order of the learned Subordinate Judge and remanded the execution, applications for fresh disposal after giving notice to the concerned judgment-debtors. But subsequent events have rendered this procedure unnecessary. As we stated earlier in pursuance of the order of, the learned Subordinate Judge of devakottai allowing concurrent execution to proceed, an execution petition was filed for purposes of execution in the Sub Court, Coimbatore. There was no stay of proceedings pending disposal of C. M. A. Nos. 207 and 208 of 1957 in this court. The transferee court has now gone into the meter and held that, the decree is barred by the provisions of Sec. 48 C. P. C. As the only ground of objection to the execution is that relating to the applicability or S. 48 C. P. C. learned counsel here appearing for the decree-holder as well as the judgment debtors, agreed before us that it is unnecessary to Order a remand in C. M. A. Nos. 207 and 208 of 1957, as the question relating to the maintainability of the execution applications can be decided by this court itself. We therefore proceed to consider whether execution applications have been filed in time.

(2.) IT is necessary to set out a few facts to understand the arguments urged on behalf of the judgment-debtors that the decree is barred under the provisions of s. 48 C. P. C. The suit O. S. No. 208 of 1912 which was dismissed by the trial court, came up by way of appeal to this court in A. S. No. 237 of 1934. By its preliminary judgment dated 18-11-1938 this court held that the plaintiff was entitled to a decree. It appears that the original plaintiff had by then died and a succession certificate was found necessary before a decree could be passed in favour of his legal representative. Steps were taken for that purpose and on 1939 this court passed a decree in favour of the plaintiff for a sum of Rs. 31,126-12-9, with subsequent interest and costs against eight persons. In the meanwhile, Madras Act IV of 1938 had come into force. The fourth respondent in appeal applied to this court for passing a decree after taking into account the provisions, of that Act. The learned Judges following the practice which till then existed, remitted the application of the fourth respondent for enquiry by the lower Court and or passing a decree in accordance with the provisions of Act IV of 1938. This practice though. prevalent at one time, is not sanctioned by the terms of Act IV of 1938. It was held in Srirama Reddi, v. Srirama Reddi, 1941-2 Mad LJ 855: (AIR 1941 mad 929) (FB), that where a debt was the subject-matter of an appeal, an application for scaling down should be made before the appeal is disposed of and no Subordinate Court could thereafter entertain an application under S. 19 of the act. In giving the, judgment the learned Judges merely interpreted the provisions of S. 19 of the Act, which enabled the scaling down of decrees in respect of debts due by agriculturists only with reference to those decrees which were passed prior to the commencement of the said Act. But whatever the correct procedure might be, the learned Judges on appeal passed the decree for Rs. 31,126-12-9 subject to the finding of which the trial court might make in the application filed by the fourth respondent. The application was thereupon remitted to the trial court along with other papers. The first defendant, one of the appellants to C. M. A. Nos. 207 and 208 of 1957, file, his own application I. A. No. 963 of 1939 for scaling down so far as he was concerned. That application purported to be under S. 19 of Act IV of 1938. As we have stated carriers Sec. 19 would not apply to the instant case as the decree, was one passed by this court after coming into force of Act IV of 1938. That application would he sustainable only if there had been no decree in the case. Pending disposal of the application there was a stay of execution under S. 20 of the Act. The trial court dismissed the application on 14-3-1942. It follows that the stay granted under S. 20 would have expired by that date. The first defendant challenged the correctness of the dismissal of his application in C. R. P. 1191 of 1942. By that time the decision of the Full Bench referred to already had been delivered and indeed that was referred to in the judgment of the, trial court. Wads-worth J. before whom C. R. P. 1191 of 1942 came up for hearing, considered the proper meaning to he given to the decree of the High Court. The learned Judge observed,

(3.) THE learned Judge's view appears to be that the decree on its own terms kept open matters relating to the application of Act IV of 1938 for adjudication by the trial Court and In other words, there was no conclusive decree passed by this court though in the decree a Particular sum was mentioned as payable by the debtors as that sum was made payable only subject to the result of an application that may be filed by the first defendant for relief under the Act. Whether this view take by Wads-worth J. is right or wrong it is not open to us to consider. The construction of the decree adopted by the learned Judge will be binding on the parties. From that it would fallacy that notwithstanding the terms of the decree there has been no final disposal of tile suit Wads-worth J. remitted the matter for fresh disposal by the lower court.