Pusarapu Venkata Reddayya vs Thoram Yarakayya and Others

Sadasiva Aiyar, J.—The plaintiff is the appellant before us in this Second Appeal. He brought the suit as the assignee of a mortgage bond

executed by the 1st defendant in 1889 in favour of the 29th defendant''s faiher. The validity of the assignment itself was questioned, but the District

Judge was justified in rejecting that plea as the assignor admitted the assignment.

The suit was brought for sale of the 1st defendant''s rights in the mortgaged properties and the Subordinate Judge decreed the suit, the 1st

defendant''s interest being one-fourth share of the pLalnt properties as established in the preliminary decree for partition in a suit of 1897 brought

by the 1st defendant as adopted son against the after-born natural son of his father. That decree for partition was dated in January 1902 and it

decreed partition of the Immovable properties in A and B Schedules and of the moveables in C and D Schedules to the plaint. The 1st defendant

transferred that portion of the decree which related to the immovables in favour of one Seshamma and that transferee had kept alive at least her

portion of the decree by successive applications till 19-4-1913, the present suit having been brought on the 23rd June 1913.

The District Judge dismissed the plaintiff''s suit on the ground that the 1st defendant had lost all rights in the mortgaged properties, that is, the

one-fourth share in the lands decreed to him under the partition decree by his having allowed that decree (so ""far as the interests retained by him

after assignment to Seshamma were concerned) by his not having made any application for the execution of that decree within the time prescribed

by law. He further held that his rights were also barred by the adverse possession of the lands by his father''s natural son.

This second ground of decision cannot be supported and is not relied on by the learned vakil for the respondent.

Then as regards the first ground, Article 182 of the Limitation Act, Clause (5), allows a decree-holder the right to execute his decree if within

three years of the date of his application, there had been a previous application in accordance with law to the proper Court for execution, or to

take some step-in-aid of execution of the decree. Seshamma was recognised as a decree-holder and she had filed an application on 16-4-1913

for execution of a portion of the decree transferred to her and hence if Sub-article 5 is construed according to the pLaln import of the language

used in the sub-article, the 1st defendant was entitled on the date of this suit to apply for execution of the decree as regards the A and B schedule

Immovable properties mentioned in the decree and the learned District.Judge''s view that the 1st defendant''s right to execute this decree had

become barred seems therefore to be clearly erroneous. But it is contended that by reason of the 1st sentence in explanation (1) to Article 182, the

1st defendant cannot treat the application of Seshamma as an application made in accordance with law to enure for the 1st defendant''s benefit

also. The 1st sentence is: ""Where the decree or order has been passed severally in favour of more persons than one, distinguishing portions of the

subject-matter as payable or deliverable to each, the application mentioned in Clause (5) of this Article shall take effect in favour only of such of

the said persons or their representatives as it may be made by"". This clause, it must be admitted, does not in terms apply to the present case

because the decree was not passed sevarally in favour of more persons than one. I do not think it is permissible to restrict the provisions of Sub-

clause (5) which are intended for the benefit of decree-holders by extending the words of the 1st sentence of explanation (1) to cases not falling

within its exact language (as is sought to be done by the learned vakil for the respondent and as was sought to be done by the successor of the

learned District Judge who decided the appeal in the Lower Court and submitted the findings which we had called for). The suggested extension

implies that the Legislature intended that not only where the decree was passed severally in favour of more persons than one but also where the

decree though passed only in favour of one person was afterwards owned by more persons than one in severalty owing to the conduct of the

original single decree-holder or otherwise, the application mentioned in Clause (5) should take effect in favour only of that person among those

who afterwards became entitled to own the decree who made it. As I said, I am not prepared to so extend the effect of the explanation (1). My

above view seems to be supported by the decision in Ramasami v. Anda Pillai, ILR (1891) Mad. 252 which is the judgment pronounced on

review of the case decided in Ramasami v. Anda Pillai ILR (1890) Mad. 347.

In the result, the District Judge''s decision is reversed and the decree of the Subordinate Judge restored with costs here and the Lower

Appellate Court. Time for redemption is extended by six months from this date.

Spencer, J.

I agree.