M. Marudanayagam Pillai vs P.M. Krishnaswami Naidu (died) and Others

S. Ramachandra Iyer, C.J.—L. P. A. No. 55 of 1960: The only question that arises for consideration in these appeals is whether the

execution petition out of which the first of the appeals arise is barred by limitation. The appellant obtained a mortgage decree on 4-11-1947.

Under the decree, one half share of item 3 to the plaint-schedule which belonged to defendant 5 was secured for the sum of Rs. 500 payable

thereunder. Similarly, the other half share which the second defendant had in the same item was secured for payment of Rs. 400 due from him.

Defendant 5, who claimed that he was the owner of the western halt of the property, paid off his liability and full satisfaction was entered. On 28-

9-1949, the appellant filed E. P. No. 704 of 1949 against the second defendant for sale of one half share of item 3. The execution petition did not

specify whether the property to be sold was the western half or the eastern half. The application, being found to be in order, was duly registered,

and, in due course, sale papers were directed to be filed, it was at that time that the appellant, presumably under a mistake, mentioned in the sale

papers that the property to be sold was the western half. That was, however, a mistake, for, as we said earlier, the western half was claimed by

the fifth defendant who had already paid off his liability. But this mistake was not rectified before the sale; perhaps, it suited the judgment debtor

himself to have the property of the fifth defendant sold and thereby save his property and he did not offer any objection to it. After the sale which

was held on 8-2-1950, defendant 5 filed E. A. No. 307 of 1950 to set aside the sale on the ground that the court had no jurisdiction to sell his

property for the liability of the second defendant. His petition was accepted and the sale was set aside on 26-8-1954. On 2-2-1955, the appellant

filed a fresh execution petition, bringing to sale the undivided half of item 3 for enforcing the liability of the second defendant. Both the lower courts

held that the execution petition was not barred by limitation, the effect of being only to revive the previous E. P. No. 704 of 1949. But, on a

second appeal to this court, Ganapatia Pillai ) held that, at the appellant deliberately sought relief in respect of a property which belonged to a

person who was not liable under the decree, viz., defendant 5, he could not be heard to complain that the petition was one in accordance with law

and on its becoming infructuous it could not be relied on to furnish the starting point for the subsequent execution petition on any theory of reviver.

In that view, the learned Judge has dismissed the execution petition. L. P. A. No. 56 of 1960 is filed against the judgment.

From the facts stated above, it is clear and the position is not disputed, that E. P. No. 704 of 1949 was an application in accordance with law.

The appellant only prayed for sale of an undivided half in the entire property, and it cannot be said that, even at the inception, he sought to sell the

property of defendant 5. But, when the court called for the sale papers, he did put up for sale the property of defendant 5. That is why the sale

which took place under the orders for sale was set aside. That does not mean that the decree-holder deliberately sought a relief to which he was

not entitled nor that the petition became infructuous by reason of his misconduct. The utmost that can be said of the decree-holder in the instant

case is that he was under a mistake as to the identity of the property. As we stated earlier, it is significant that the judgment debtor never brought to

the notice of the decree holder that the western half did not belong to him. Under those circumstances, it is clear that the present execution petition,

which was filed on 26-8-1954 for the identical relief, viz., for sale of the undivided half in the entire property, could not be regarded otherwise than

as a petition to revive the old petition which resulted in an infructuous sale of the other property. No question of limitation, therefore, arises in this

case,

But Mr. P. Sherfuddin, appearing for the respondent, has brought to our notice the decision in Viraswami v. Athi, ILR 7 Mad 595. That was a

case in which an execution sale under a previous petition was subsequently set aside. The decree-holder filed en application more than three years

after the decree, for execution thereof by way of arrest of the judgment debtor. It was held that the later application could not be regarded as a

continuation of the old one. The learned Judges themselves indicated in the course of their judgment that the application before them was not for

the same relief as was contained in the first execution petition, but for a different one. The theory of revivor cannot obviously apply to such a case

when the petition filed in the former case was not for the. identical relief as that in the latter. The learned counsel then invited our attention to the

decision of the Calcutta High Court in Rajani Bandhu Chatterjee and Another Vs. Kali Prasanna Chatterjee, . In that case, there were three

execution petitions. In the first, the court directed that execution should proceed on the basis of a certain report. The decree-holder abandoned

that execution application. Later he filed a fresh application for execution, in respect of which some order was made. Being dissatisfied with that

order, the decree-holder carried it in appeal, and, later by way of second appeal to the High Court. His application was dismissed by the court. A

third application was filed within three years of the date of the dismissal of the second appeal by the High Court. It was held that the dismissal of

the second appeal could not furnish a starting point as a step in aid of execution under Article 182(5). Having regard to the decision of the Privy

Council in AIR 1945 176 (Privy Council) , it cannot be said that this view is wholly correct. But we are not concerned with that question in the

present case. It was argued before the learned Judges of the Calcutta High Court that the third application should be regarded as a continuation of

the first one, which was abandoned by the decree-holder. The learned Judges held that, as the first application became infructuous by reason of the

conduct of the decree-holder, the subsequent application could not be regarded as one in continuation of the previous application. It is not

necessary to consider whether this view of the law is correct or not, as we are of opinion that it cannot be said in this case, that there was any

default on the part of the decreeholder, by reason of which the previous application became infructuous. What all can be stated in this case is that

the decree-holder, by a mistake bona fide or otherwise, sought to specify the half share of the property as the western half. That was ultimately

found to belong to defendant 5, who was not liable to (sic) under the decree. That cannot, however, mean that the application was abandoned by

the decreeholder on account of any default on his part. On the other hand, the decreeholder wanted to pursue the application, although by bringing

the wrong property to sale. We are, therefore, of opinion that the two decisions relied on by learned counsel for the respondent cannot apply to

the present case. We are of the opinion that the application out of which these appeals arise should be regarded as a continuation of E. P. No. 704

of 1949, and that no question of limitation can arise. E. P. A. No. 56 of 1960 is allowed with costs.

L. P. A. No. 55 of 1960 : This appeal arises out of proceedings initiated by the respondent for executing the decree for costs he obtained in the

various proceedings that related to the setting aside of the sale held in E. P. No. 704 of 1949. In the fresh application that was filed by the

decreeholder, he has given credit to the costs which he was directed to pay under the orders relating to E. A. No. 307 of 1950. In view of the fact

that we have held that the fresh application filed by the appellant is in time the amount which the respondent is entitled to obtain from the appellant

has been duly given credit to in the execution itself, no separate application for execution can lie in respect of a matter which has been thus given

credit to. L. P. A. No. 55 of 1960 is allowed with costs.