BAVA C GOPALASWAMI MUDALIAR Vs. ABHISHEKA KATTALAI ATTACHED TO SRI THIAGARAJASWAMI

JUDGEMENT

(1.) The main point for determination in this second appeal is whether Section 48, Civil P. C. applies to and bars a decree of the Presidency Small Cause Court when it is transferred for execution to a mofussal civil Court. The facts are briefly these :

(2.) The appellant here is the assignee decree-holder in S. C. S. No. 10554 of 1932 on the file of the Presidency Court of Small Causes, Madras. The decree was obtained on 8th November 1932 on the foot of a promissory-note executed by respondent 1, Vaidhyalinga Pandarasannadhi, as trustee of the Abhisheka Kattalai of Sri Thiagaraja Temple, Tiruvarur, in favour of one Sabapathi Mudaliar and endorsed to one Ratnasabapathi Mudaliar. The said decree was got amended on 23rd August 1933 by directing the said Vaidhialinga Pandarasannadhi to pay the decree amount out of the assets of the Abhisheka Kattalai and Annadhana Kattalai of Sri Thyagarajaswami temple of Tiruvarur, in his hands, instead of its being a personal decree passed against him. This appellant was brought on record in the Presidency Court of Small Causes, Madras, on 8th January 1937 as the assignee-decree-holder. The decree was transmitted to the District Munsif's Court, Tiruvarur, for execution on 13th December 1940. We are not now concerned with the various other intricacies and the course of the cross suits between the parties. Suffice it to say that this appellant filed E. P. No. 298 of 1941 in S. C. No. 10554 of 1932 On the file of the Court of Small Causes, Madras, is the District Munsif Court, Tiruvarur and sought to attach the decree in O. S. No. 136 of 1986 on, the file of the District Munsif Court, Tiruturaipundi in favour of his judgment-debtor and against him and to set off his dues under decree against what he had to pay under that decree, His execution petition was dismissed owing to alleged defects in column a of the petition (nobody could say what those defects were!) and the learned Subordinate Judge also confirmed this order of dismissal. Thereupon the appellant took the matter up to this Court, in C. M. S. A. No. 186 of 1944, Somayya J. by his judgment in Gopalaswami Mudaliar v. Executive Officer, Thiruvarur Devastanam, (1945) 1 M. L. J. 428: (A. I. R. (32) 1945 Mad. 347) set aside the orders of the District Munsif and the Subordinate Judge dismissing the execution petition, and directed the execution petition to be taken on file and proceeded with according to law. That judgment was passed on 12th March 1945.

(3.) Thereafter, on 5th September 1946, the appellant prayed for the amendment of the execution petition and the attachment of some other immovable properties belonging to the judgment-debtor, by a petition, E. A. No. 416 of 1945, as the attachment of the decree in O. S. No. 136 of 1936 had turned out to be infructuous. The District Munsif ordered attachment on 5th September 1945, that is, after more than 12 years had elapsed since the passing of the decree on 8th November 1932. It is, of course, well settled law now, and this is not disputed by either side, that the amendment of 23rd August 1933 would not be relevant for the purpose and that only the date of the original decree, namely, 8th November 1982 counts for the purpose of Section 48, Civil P. C. The main question in this appeal is whether the learned District Munsif was right in allowing the attachment of the additional properties after 12 years bad elapsed, or whether the learned Subordinate Judge, who set aside the order of attachment, as the 12 years period prescribed under Section 48, Civil P. C. had elapsed and no special circumstances for exemption from Section 48 existed, was right.