Varanasi Padmanabham and Another vs Inaturi Joga Rao

K. Subba Rao, C.J.—The only question in this Civil Miscellaneous Second Appeal is whether E. P. No. 209 of 1953 on the file of the District Munsif''s Court, Kakinada, is barred by limitation.

The respondent obtained a money decree against the appellants in O. S. No. 504 of 1953 (D. M. C Kakinada) on 20-1-1944. On 17-1-1947, he filed an application (E. P. No. 35 of 1947) for attachment and sale of the properties belonging to the judgment-debtors. The executing Court directed attachment of the properties to be effected by 27-3-1947 and also directed the decree-holder to pay batta within three days from the date of its order, namely, 5-3-1947. The decree-holder failed to pay batta within the prescribed time. On 14-3-1947 the execution petition was advanced and was dismissed on the ground that batta was not paid. The decree-holder did not get that order set aside by appropriate proceedings. He filed a second execution petition (E. P. No. 116 of 1950) on 27-3-1950 a that was dismissed for non-payment of batta 10-5-1950. He then filed a third execution petition (E. P.No. 209 of 1953) on 12-6-1953. The judgment-debtors, inter alia, pleaded that this execution petition was barred by limitation on the ground t(sic) the second execution petition i.e., E. P No. 116 1950, was filed more than three years from date when the first execution petition was dismiss viz., 14-3-1947. The trial Court held that E. P. (sic) 209 of 1953 was barred by limitation, while lower appellate court, following the judgment Horwill J. in V. Venkatappiah Vs. V. Seetharamavarma, that the execution petition was within time. Her(sic) the second appeal.

The only question in this second appeal whether the present E. P. was barred by limitation Under Art. 182 (5) of the Indian Limitation A(sic) an execution petition should be filed within th(sic) years from the date of the final order passed on application made in accordance with law to proper Court for execution, or to take some s(sic)in-aid of execution of the decree. The learned counsel for the appellants contends that the final (sic)der within the meaning of that Article was m(sic) on 14-3-1947 whereas the learned counsel for respondent argues that the said order must be de(sic)ed to have been made on 27-3-1947. From narration of the aforesaid facts, it is manifest, (sic) factually, a final order was made by the execution Court dismissing E. P. No. 35 of 1947 on 14-3-1(sic) That order was either good or bad. If that o(sic) was bad, the decree-holder should have got it aside by taking appropriate proceedings. So as that order was allowed to stand, it appeal us that it is not possible to contend that the C(sic) did not make a final order against the decree-ho(sic) The decision of Horwill J. in 1944-1 Mad LJ(sic) V. Venkatappiah Vs. V. Seetharamavarma, turned upon the terrr(sic) the order made in that case. The execution (sic)tion was posted to 29th January 1937, but the l(sic)ed District Munsif dismissed it on 15th Jam(sic) 1937 for non-payment of batta behind the bad(sic) the parties. The learned Judge held that the made on 15th January, 1937 must be deeme(sic) have have been made on 29-1-1937 to which the E. P. was posted. We find it difficult to a(sic) the reasoning of the learned Judge. In effect learned Judge held that, though a final order been made on a particular date, it must be he have been made constructively on a different In our view, law does not permit any such fi(sic) and if the order was passed illegally, it would been open to the decree-holder to get the E. stored or otherwise to get the order set aside b(sic) appellate Court. That apart, in the present ca(sic) does not appear from the B - diary that the (sic)cution petition was posted to any particular dat(sic) the B - diary also discloses that the execution (sic)tion was advanced and was disposed of finally a particular date for the reasons mentioned in(sic) order. We cannot say that, when a Court di(sic) (sic)ed an application on a particular date, it di(sic) dismiss it on that date. In our view, the order on 14-3-1947 was the ''final order'' within the (sic)ing of Art. 182 (5) of the Limitation Act. If P. No. 116 of 1950, having been filed mor(sic) three years from the date of the final order previous execution petition, was dearly barred by limitation. It follows that the present E. F. (E. P. No. 209 of 1953) was also barred by limitation. The Order of the Lower Appellate Court is set aside and (sic)at of the first Court is restored. The appellants will have their costs throughout.