Sripathi Rangaiah vs Batkari samma and another

S. Qamar Hassan, J.—This is the decree-holder''s appeal in execu(sic). There was difference of opinion between the of first instance and the Appellate Court as (sic)ether the execution petition filed by the ap(sic) on 27-6-1951 was within time or beyond. The Court of first instance had held that the (sic)tion was within time but the appellate Court (sic)iffered from that view. In order to under the contentions raised before us it would be (sic)riate that the relevant facts be briefly stated. (sic) The decree-holder instituted a suit against (sic)nma and her husband, Batkari Rajaiah on (sic) a mortgage bond in which Maisamma was to be an ostensible owner of the property, (sic)ma admitted the claim and prayed that a for sale be passed against her. Batkari Ra(sic) however, disputed the claim of his wife to be (sic)ner of the property and stated that he was (sic)d owner and the sale-deed in favour of Mai(sic) was a mere benami transaction.

The trial Court while passing a preliminary (sic) against Maisamma dismissed the suit as (sic) the husband on the ground that he was not (sic) to the mortgage transaction and he had (sic) necessarily impleaded in the suit. The pre(sic) decree, which was passed against Mais(sic) was made final on 25th Khurdad, 1348F. (sic)t execution petition was filed on 20th Amar(sic) 18F., and it was dismissed on 20th Shehre(sic) 19F.

(sic) second execution petition was filed on 12th (sic) 1351F., and it was dismissed on 17th Ardi(sic) 355 F. The third execution petition, which (sic)genesis of the present appeal, was filed on (sic)ne, 1951 wherein it was prayed that the (sic)ca be sold in execution of the decree. Des(sic)tice, Maisamma preferred to remain exparte. Batkari Rajaiah against whom the suit for sale has been dismissed put in appearance and raised the plea that the execution petition was barred by time because it was filed three years after the date of dismissal of the previous application.

He further urged that he had obtained a decree negativing the apparent ownership of his wife and holding that he was the real owner and the hypotheca could not be sold in execution of a decree which has been obtained against Maisamma and which was not binding on him because of the dismissal of the decree-holder''s suit against him.

The trial Court, as already stated above, held the execution petition within time but dismissed it on the ground that the property could no longer be held to belong to the judgment-debtor by reason of the decree of the Supreme Court in favour of Batkari Rajaiah.

The decree-holder went up in appeal to the lower Appellate Court, and the Second Judge, City Civil Court, agreed with the view of the Court of first instance that the effect of the decree of the Supreme Court is that the judgment-debtor could no longer be held to be the owner of the property. In so far as the question of limitation was concerned, he took the view that the instant execution petition was beyond time because it had been filed more than three years after the order of dismissal passed on the previous application on 17th Ardi behist 1355 F.

It would thus appear that there are two questions to be decided in this appeal viz.; (1) whether the execution petition was within time and (2) whether the judgment of the Judicial Committee can be held to be binding upon the decree-holder, who was not a party to it.

Maisamma has preferred to remain ex parte and Batkari Rajaiah is represented before us by Shri Harihar Rao Deshpande. The first argument advanced on behalf of the appellant is that the judgment and decree of the Supreme Court would not in any way affect the execution of the decree since he was not a party to it. In reply it is contended by Mr. Harihar Rao Deshpande that in the result of the judgment and decree of the Supreme Court, the decree-holder would be deemed to have been affected by the doctrine of lis pendens.

Whether or not the decree-holder is affected by the doctrine of lis pendens would depend upon the date of the institution of the suit. In our view the said doctrine would not apply because the mortgage in dispute had already come into existence before the institution of the suit by Batkari Rajaiah. At the most the judgment of the Supreme Court may be a relevant fact under Secs. 11 and 13 of the Evidence Act with which we are not at present concerned. The position of Rajaiah is no more than that of an objector. He will have to prove the real nature of the transaction, in execution as against the decree-holder.

We need not elaborate this point any further since the decision of this appeal seems to rest upon the fact whether the application for execution filed by the appellant was within time. According to Art. 160 (5) of the Hyderabad Limitation Act the period of three years for filing an execution petition after dismissal of the previous application commences from the date of dismissal. It is common ground that the third execution petition was beyond three years from the date of dismissal of the last application.

The learned advocate for the appellant contends that as on the date of dismissal the executing Court had on its record the stay order received from the Judicial Committee, it could not dismiss the execution petition, and if it had dismissed it, the order dismissing the application would be deemed to he void.

In this view of the matter it was not necessary for the appellant to adopt any remedy to get the order set aside, the result of which would be that the second execution petition would be deemed to be still pending and the third execution petition would be regarded as an application for revival of the previous petition. In support of this contention reliance has been placed on (Gadiraju) Venkatappayya and Another Vs. Kasarabada Venkatachalapathi Rao, In that case Devadoss J., has held :

When an appellate Court orders the stay of execution pending an appeal, the Court before which the execution proceedings are pending has no power to proceed with the execution after the receipt of the order. It would be opposed to all principle to hold that because the stay order was not perused by the Court executing the decree or that it had no time to pay any attention to it the attachment and other proceedings subsequent to the receipt of the order are good... When a proceeding or execution is directed to be stayed by the Appellate Court or the Revisional Court anything done during the trial when the stay order is in force is not only irregular but is altogether void, as the Court has no jurisdiction to do anything after it is prohibited from doing it.

If this authority had held the field we would have been inclined to consider it on its merits. But we find that the case cited above went up in Letters Patent Appeal and a Division Bench in Kasarabada Venkatachalapathi Rao Vs. Gadiraju Venkatappayya and Another represented by his mother and next friend Manikyamma, , disagreed with this view. Therefore, we find ourselves unable to follow the authority cited for the Appellant. No authority directly bearing upon the point in question has been cited before us.

Despite the argument to the contrary by the advocate for the appellant that the order dismissing the execution petition must be regarded to be void, we do not find ourselves in accord with it. Our reason for that view is that the Court was not suffering from any inherent absence of jurisdiction. The Court had jurisdiction and what it did was in excess of the jurisdiction or in illegal exercise thereof. If the Court based its order on the circumstances obtaining in this appeal the order could not be said to be void in law. At the most it would be a wrong, illegal or irregular order which ought to have been set right by having recourse to proper remedies. As long as that order stands the limitation would begin from the date of dismissal. No other point was urged before us.

For the reasons stated above, we dismiss the appeal. Having regard to the circumstances of this case, we make no order as to costs.