Hari Krishnamurthi vs Akella Suryanarayanamurthi and Others

Spencer, J.—The question is whether the execution petition filed on the 23rd March 1916 to execute the decree in O.S. No. 55 of 1904 is

in time and the answer to this question depends on whether the execution petitions filed on 18th June 1914 and 22nd October 1914 by the

transferee decree-holder, M. Narasayya, were made in accordance with law. It is true that on those dates Narasayya was restrained from

executing the decree or otherwise realising the decree-debt by reason of the decree obtained by the plaintiffs in O.S. No. 835, of 1911, who are

respondents in this appeal, and it is argued that, as no execution could take place without an execution petition being presented to the Court, the

restraint order would render any application made in that connection by Narasayya illegal, as being in contravention of a decree of court.

On the other hand, it is clear that the only person competent at that date to apply for execution was the transferee decree-holder, Narasayya,

whose transfer has been recognised on 30th September 1911 in proceedings to which the grandsons of Narayanamurthi, who are the respondents

in this appeal, were parties. The respondents'' prior application to be added as supplemental decree-holders had failed by the dismissal of their

execution petition on the 23rd October 1910, and they did not again apply to be placed on the record till 23rd March 1916. So that at the date

when Narasayya filed his two execution petitions he was on the face of the decree the only person competent to execute it. The executing Court

not having notice of the result of the Original Suit No. 835 of 1911, had no concern with the rights of any other person other than the right of the

person appearing on the face of the decree as the decree-holder, as it did not then appear that any other person had taken the decree-holder''s

place. See Jesoda Deye v. Kirtibash Dass ILR (1891) Cal. 639 As the Court was not then in a position to refuse to admit Narasayya''s

application and as he acted in the interest of whosoever might ultimately be found entitled to execute the decree in the litigation when pending,

which terminated in the High Court''s decree dated 15th August 1917 in appeal against the decree in O.S. No. 835 of 1911, I am of opinion that

this application was a bona fide one made in accordance with law and that the District Judge was right in treating the present application of the

respondents as saved thereby from becoming barred by limitation. As my learned brother is of the same opinion, the lower appellate Court''s order

returning the execution petition to the first court for execution is confirmed, and the appeal will be dismissed with costs.

Seshagiri Aiyar, J.

The facts which have given rise to the question of law are these: One Narayanamurthi, whom I shall hereafter call the testator brought Civil Suit

No. 55 of 1904 on a mortgage: he died pendente lite : his widow was placed on the record and obtained a preliminary decree. The testator left

more than will. There was litigation respecting the genuineness of these testamentary instruments between the widow on the one hand and her

daughters'' sons who claimed as residuary legatees subject to the payment of a fixed sum to the widow. In the meantime, the widow transferred the

decree to one Narasiah. On her application the final decree was passed on the 30th January 1912; he then applied to execute the decree but was

resisted by the grandsons. The objection was overruled. The grandsons preferred an appeal against the order permitting Narasiah to execute the

decree. It was dismissed in limine on the ground that as they were not on the record of the suit as legal representatives of the testator they had no

locus standi to prefer the appeal. This order is conclusive of the contention that they were also co-nominee-parties to the decree by virtue of a

previous infructuous application. After the dismissal of the appeal, the grandsons brought a regular suit in 1911 to which the widow and Narasiah

were parties, but not the judgment-debtor in the first suit. The prayers in the grandsons'' suit were for a declaration that they alone were entitled to

execute the decree and that Narasiah should be restrained by an injunction from executing it The suit was decided in favour of the grandsons. The

terms of the decree are important. It was in these terms: ""This Court both oredr and declare that the defendants or either of them have no right to

execute the decree in O.S. No. 55 of 1904 on the file of the Amalapur District Munsif''s Court, that the plaintiffs are entitled to recover the said

mortgage decree debt by executing the decree, and ""restrain the defendants by means of an injunction from executing the decree or otherwise

realizing the decree amount."" This was passed on the 14 April 1914. Against the decree in favour of the grandsons, Narasiah appealed to the High

Court. Pending decision in appeal and apprehending that the decree in the mortgage suit may become barred, he applied on the 18th June 1914

and on the 22nd October 1914 to the Court which passed the decree for execution. They were dismissed and no money was realised by

Narasiah. The grandsons applied on the 23rd March 1916 to execute the mortgage decree. It was pleaded that the application was barred by

limitation, The bar was sought to be saved by the two applications made by Narasiah in June and October 1914. The question is whether it is open

to the grandsons who are the respondents before us to take advantage of these applications as steps-in-aid of execution. The point is free of

authority. I am inclined to agree with Mr. Ramesam that the two applications saved the limitation. It is common ground that there was no injunction

directed to the Court which passed the decree nor against the judgment-debtor, Can it be said that the personal injunction against Narasiah

rendered his application illegal? Clause 5 of Article 182 of the Limitation Act provides that the application should be to the proper Court and

should be in accordance with law. The applications were certainly to the proper court, because the Munsif was not prohibited from executing the

decree. They were in accordance with law, because there was no prohibition against applying to take a step-in-aid of execution. The decree in the

respondents'' suit which I have set out only prevented them realising monies. The language is ""from executing or otherwise realising the monies.

The word executing must be read ejusdem generis realizing and the word otherwise makes it clear. The prohibition should be understood as

applying to the recovery of the money and not as interdicting applications which had the effect of saving limitation.

The authorities quoted by Mr. Ramesam, namely Jasoda Deye v. Kritibash Dass ILR (1891) Cal. 689 and Monmoth Nath Mitter v. Rakka

Chandra Ternary 10 Cal. L.J. 396. show that so long as there is a person on the record as a decree-holder, the Court is bound to entertain his

application for execution. There has been no order removing Narasiah from his position until March 1916. In my opinion, therefore, the decree

was alive in March 191(5 and the application of the respondents was in time. Mr. Rama Rao argued that the personal restraint made the

applications of Narsiah illegal. To whatever disabilities Narasiah might have exposed himself by applying certainly the applications made by him

were such as the executing court was bound to entertain, therefore, they were not illegal. In my opinion the civil miscellaneous second appeal

should be dismissed with costs.