M.G. Murugesam Chetty vs E. Kanniappa Mudaliar

Rajamannar, C.J.—We are In entire agreement with the Judgment of Ralagopalan J. As the facts have been stated fully and accurately in his

judgment, we shall not repeat them. There were two Judgment-debtors and in this appeal we arc only concerned with the second judgment-

debtor. The decree-holder after obtaining the transmission of the decree to the Court of District Munsif of Poonamallee filed an execution

application in that Court for execution against the first defendant only. It was during the pendency of the petition that the decree-holder died and his

legal representatives who are the appellants before us filed an application in this Court ''(No. ''313 of 1938)''. In that application, they prayed that

an order may be made bringing them on record as the legal representatives of the decree-holder and to grant them leave to execute the decree by

continuing the execution proceedings started by the deceased in the District Munsif''s Court of Poonamallee. Notice of this application went to

both the judgment-debtors and the Master passed an order on 28th September 1938 recognising the appellants as the legal representatives of the

deceased decree-holder and giving them leave to continue the execution proceedings therein. We agree with Rajagopaian J. that the reference in

this order is to the execution proceedings pending in the District Munsif''s Court of Poonamallee against the first defendant. This order can

therefore be taken as a Judicial determination of the liability of the first defendant to be proceeded in execution at the instance of the legal

representatives in the Court of the District Munsif. Such judicial determination would amount to a revivor, see ''Palaniappa Chettlar v. Valliammal

Achi'' 52 Mad 590. In the application Le. ""No. 313 of 1938'' there was no prayer for granting the appellants leave to execute the decree against

the second defendant in any manner. There was therefore no judicial determination therein of the Tight of the appellant''s legal representatives to

execute the decree against the second judgment-debtor. It is well established law that an order of revivor of a decree on the Original Side of the

High Court against two persons when made on an application for execution against only one of them does not keep the decree alive as against the

other, see ''Krishniaya y. Gajendra Naidu'' 40 Mad 1127 affirming; the decision of Bakewell J. in ''Mc Laen v. Veeriah Naidu'', 38 Mad 1102.

Mr. T. A. Vijiaraghavachari who appeared for the appellants did not contend that this was not sound law. If so, the decision in ''Palaniappa

Chettiar v. Valli-ammai Achi'', 52 Mad 590 cannot be of any assistance to him. All that was decided in that case was that an order recognising the

transfer of a decree or an order bringing on record legal representatives and allowing the assignee or the legal representatives to execute the decree

would be an order of revivor within the meaning of Art. 183, of the Indian Limitation Act. That may be so, but the question is whether the order

operates as a revivor against judgment-debtors in respect of whom no relief by way of execution was prayed for in the application on which there

was an order of revivor. In .this case there can be no doubt that the Master by his order dated 28th September 1948 did not purport to judicially

determine the liability of the second judgment-debtor to be proceeded in execution. Therefore, it could not be viewed as a revivor of the decree

against the judgment debtor within the meaning of Article 183. This is the view taken by the Master and by Rajagopalan J. and the same view

commends itself to us.

The appeal is therefore dismissed with costs.