Narayanan Thampi vs Chitraru Somayajipadu Jethaveda

Judgment-debtor is the Appellant. The only question for decision in this appeal is whether the execution petition filed by the decree-holder on 6-4-1132 is within time. The decree in the case was passed on 31-12-1100 and it is a registered decree. The first execution petition was filed on 23-12-1116 and it was dismissed for default of the decree-holder on 16-2-1117. The second execution petition was filed on 2-7-1120 and it was dismissed on 23-1-1121, on account of a stay order received from the trial Court. There was a third execution petition which was filed on 10-6-1121 and it was dismissed on 6-7-1121. The next execution petition is the one filed on 6-4-1122. This petition was objected to as being out of time on the ground that the decree had become barred by limitation even before 2-7-1120, the date on which the second execution petition was filed. As already stated, there was an earlier execution petition filed on 23-12-1116. In that execution petition the judgment-debtor''s name had been wrongly stated and hence the judgment- debtor contended that it was not a proper execution petition which could give a fresh starting point of limitation. The execution Court overruled that objection and held that the present execution petition dated 6-4-1122 was not barred by limitation. This order was confirmed by the lower appellate Court. Hence this second appeal.

Prior to the present execution petition, there were two other effective execution petitions one on 2-7-1120 and the other on 10-6-1121. The present execution petition is within six years of the dates of dismissal of those execution petitions and also within 12 years of the date of the decrees. If the judgment-debtor had a contention that the decree had become barred by limitation even when the second execution petition was filed on 2-7-1120, he should have raised that plea when he got notice of that execution petition. It is seen from the Execution Diary that as per the second execution petition steps were taken after the issue of notice under Order 21, Rule 20, CPC to the judgment debtor and that the properties were brought to sale. The entry on 15-12-1120 shows that the judgment-debtor had refused to accept the proclamation notice and hence it was served by affixture. Thus it is clear that the judgment-debtor had notice of the second execution petition. It is also seen that on 22-1-1121 he filed an application under Order 9, Rule 13, Code of Civil Procedure, to set aside the decree in this case and got an order from the trial Court staying the execution proceedings in the case. If it was his case that the decree had already become time barred, he had only to raise that plea in execution instead of applying for an order staying the execution proceedings. But he did not care to raise the plea of limitation before the execution Court. It is also clear from his conduct that he deliberately waived his right to raise such a plea at a proper stage. Hence it is not open to him to raise the very same plea in respect of the second execution petition at any subsequent stage. The rulings in Kulathu Ayyar v. Parameswaran Pillai 21 T.L.J. 321 and Ouseph v. Kunju 24 T.L.J. 636 are clearly in support of this position. The lower Court''s order overruling the judgment-debtor''s plea of limitation, could be sustained on this ground alone.

On the merits also, the judgment-debtor''s plea that the first execution petition filed on 23-12.1116 was not sufficient to give a fresh starting point of limitation, does not appear to be sustainable in law. The only defeat pointed out in respect of that application is that the judgment-debtor''s name was wrongly given. In all other respects the execution petition was one in accordance with law. The mistake committed in mentioning the name of the judgment-debtor m the execution petition, appears to have been brought about by a clerical error duo to oversight. The original kanamdur''s name mentioned in the decree appears to have bean mistaken fur the name of the judgment-debtor by the clerk who prepared the execution petition, and thus the mistake in the name was committed. Such a wrong mention of the Defendant''s name on account of a bona fide mistake, will not render the execution petition invalid or improper. The mistake appears to have escaped the notice of the execution Court also which admitted the execution petition and ordered issue of process on it. Thus the decree-holder had no opportunity to cure that defect also. In spite of such a mistake in the execution petition, it could be accepted as a step-in-aid of execution so as to give a fresh starting point of limitation. This was the view taken in Balambhotlu v. Bapanamma AIR 1930 Mad. 172 : (119 I.C. 596), where a similar mistake had been committed by the decree-holder in his execution petition. The same view found favour with the Court in Sheikh Hafeez Uddin Vs. Ram Chander Das, In Fazl v. Madhavan 1947 T.L.R. 461 it was ruled that a proper execution application mistakenly filed against a deceased judgment-debtor, would be a step-in-aid of execution giving a fresh starting point of limitation. Applying these rulings to the facts of the present case, it is clear that the first execution petition filed on 23-12-1116 was sufficient to constitute a step-in-aid of execution so as to serve as a fresh starting point of limitation, and we hold accordingly. Thus, in any view of the case, the judgment-debtor''s plea of limitation has to fail.

In the result this second appeal is dismissed with costs.