1. The question for determination in this second appeal is whether a certain E.P No is in time. On 10-6-1932 one Sankaran, who subsequently died, obtained a decree for arrears of rent in O.S No. 219 of 1932 on the file of the Dist. Munsif of Quilandy. When he was alive, Sankaran filed in succession three execution petns. the last of which was E.P No. 324 of 1939. This was disposed of on 17-7-1939. After the death of Sankaran, one Kunni Raru, claiming to have become the Karnavan of the tavazhi filed E.P No. 553 of 1942 for the recovery of the decree amount. Notice was ordered to the judgment-debtors and eventually on 11-8-1942 the petn. was dismissed for non-payment of batta. On 5-7-1944 Kunni Raru in the, same capacity filed another E.P No. 272 of 1944. In this also notice was issued to the judgment-debtors in the counter which they filed, the judgment-debtors pleaded ‘inter alia’ that Kunhi Raru was neither the heir nor the legal representative of the deceased Sankaran, that the property did not belong to the tavazhi of Sankaran but that it was his separate and personal property. Referring to the decree debt they stated as follows:

“It has been obtained for realisation of the arrears of pattam due from private properties and for Ct. expenses, etc. In that circumstance, except the wife and children of the decree-holder, the deceased Ukkandan ‘alias' Sankaran, the petnr. has no manner of right to execute the above decree…….. The wife and children of the petnr. should be impleaded as parties in this petn.”

This E.P was finally dismissed on 5-7-1944. In June 1945, the widow and children of Sankaran filed a petn R.E.P No. 370 of 1945 to execute the decree, their claim being that the properties in relation to which the decree had: been obtained, were the separate and personal properties of Sankaran and that on his death they became his heirs in respect of the properties. The question thus arose whether the properties in respect of which the decree, for arrears of pattom had been obtained belong to the tavazhi of Sankaran or whether they were his separate and personal properties. The Dist. Munsif took the view that the properties belonged to the tavazhi and in that view dismissed R.E.P No. 370 of 1945. On appeal, the learned Subordinate Judge found that the properties were the separate properties of Sankaran but that the E.P filed by the, widow and children of Sankaran was barred by time. In that view, that E.P was held to fail. In C.M.S.A No. 7 of 1948 disposed of on 27-8-50. I found that these properties were the separate and personal properties of Sankaran. The proper persons therefore entitled to execute the decree are his widow and children. The question therefore arises whether R.E.P No. 370 of 1945 is in time.

2. Mr. Gopalan Nambiar, the learned advocate for the applt. tried to make out in a number of different ways, that the E.P is in time. In the present case it will be noticed that if it can be held that E.P No. 553 of 1942 and E.P No. 272 of 1944 filed by Kunhi Raru were proper applns. made in accordance with law, R.E.P No. 370 of 1945 would be in time. In some cases it has been held, in the circumstances set out in them that an execution petnr. can avail himself of a previous appln. filed by someone else to meet the plea of limitation set up by the judgment-debtor. Mr. Nambiar tried to argue on the analogy of those-decisions that the widow and children of Sankaran were entitled to utilise the execution petns. filed by Kunhi Raru to defeat the plea of limitation set up by the judgment-debtors. But on an examination it will be seen that all those decisions proceeded on principles, none of which can be properly invoked in the present case. In ‘Ghanaya Lal v. Madho Parshad’, 135 IC 207 : (AIR (18) 1931 Lah. 600) an execution petn. was filed by the guardian of a minor after the minor had really attained majority. But the minor ratified the appln. within three, years of his attaining majority. The Ct. ruled that the ratification rendered the appln. valid from the date of ratification. It is clear that this case proceeded on the ordinary rule of agent and principal. In the case before us Kunhi Raru did not purport to act on behalf of the widow and children of Sankaran. The second case cited by Mr. Nambiar is reported in ‘Annapuramma v. Venkamma’, 1938-1 M.L.J 135 : (AIR (25) 1938 Mad. 323). The decree in that case was obtained on 9-9-1926. On 15-10-1928, a nephew of the decree-holder who had died in the interval applied for the execution of the decree, alleging that the decree belonged jointly to his uncle and himself. The widow interposed with a petn asking that the petn of the nephew should be dismissed and that she should be brought on record as the sole representative and that the decree should be executed for her sole benefit. In 1931, the widow filed her own execution petn and it was held that she could avail herself of the execution petn filed in 1928 to bring her appln. within time. The distinction between ‘Annapuranamma v. Venkamma’, 1938-1 M.L.J 135 : (AIR (25) 1938 Mad. 323) and the present case is that even before the expiration of the time within which the appln. had to be made, the widow had interposed and made a claim and asked that the decree should be executed for her sole benefit. Whereas here there was no such interposition.

3. In ‘Hari Krishnamurthi v. Suryanara-yanamurthi’, 43 Mad 424 : (AIR (7) 1920 Mad. 135), the person who applied for execution and whose appln. it was held, was available later on for those properly entitled to execute the decree was the only person who, on the face of the record, was competent to execute the decree. An executing Ct. cannot go behind the decree and it was ruled that so long as there was a person on record as a decree-holder, the Ct. is bound to entertain his appln. for execution. It will be noticed that in the present case Kunhi Raru was not a person who appeared on the record as a decree-holder. The principle of ‘Hari Krishnamurthi v. Suryanarayanamurthi’, 43 Mad 424 : (AIR (7) 1920 Mad. 135) is not therefore available for Mr. Nambiar. He could have utilised the applns. made by Kunhi Raru if he could possibly have contended that he had been acting as his clients' agent or on their behalf, and that his clients had ratified the steps he had taken. If that had been the case the ordinary law of agency would apply. But here not only is there nothing to show that Kunhi Raru had been constituted an agent by the widow and children of Sankaran, but on the other hand he was putting forward a claim which was definitely and actively hostile to them.

4. Mr. Nambiar then pressed another line of reasoning before me. He contended that on the appln. filed by Kunhi Raru, the Ct. ordered notice to issue to the judgment-debtors and that when a Ct. orders issue of notice, that would amount to a step-in-aid of execution. The decision referred to for this proposition is ‘Satyanarayana v. Kaji Reddi’, 1945-2 M.L.J 427 : (AIR (33) 1946 Mad. 61). It was there categorically stated;

“The prayer contained in the petn. of the 27-1-1938 for the issue of a notice under R. 22 of O. 21 was a step-in-aid of execution. There are two decisions of this Ct. directly in point ‘Pachiappa Achari v. Poojali Seenan’, 28 Mad 557 and ‘Kamakshi Pillai v. Ramaswami Pillai’, 18 M.L.J 14. In each of these cases the decision was by a Division Bench and the decision was that the prayer for the issue of notice was a step-in-aid of execution. The same opinion was expressed by a Full Bench of the Calcutta H.C in ‘Gopal Chundar v. Gosain Das’, 25 Cal 594 : (2 CWN 556 FB).”

I have not examined the facts of the cases referred to in this passage; but the decision in ‘Satyanarayana v. Kaji Reddi’, 1945-2 M.L.J 427 : (AIR (33) 1946 Mad. 61) has no application because the appln. in that case was made by the decree-holder himself & not as was the case here by a person who was a stranger to the decree.

5. Mr. Nambiar's next argument was that Kunhi Raru had applied to be brought on record as legal representative of the deceased Sankaran and that this prayer of his was tantamount to a step-in-aid of execution. In this connection he referred to the decision in ‘Venkatachalam Chetti v. Ramaswami Servai’, 55 Mad 352 : (AIR (19) 1932 Mad 73 FB and ‘Jayanarayana v. Polayya’, 68 M.L.J 392, (AIR (22) 1935 Mad. 383). In the former case at p. 377 the following passage appears:

“…….. There is a decision in Srinivasa Ayengar v. Dharni Mudali’, 17 M.L.J 475 which has some bearing on the point. In that case it was held by Benson and Miller JJ. that an appln. by the legal representative of a decree-holder for an order recognising him as a decree-holder is not prohibited by the Civil P.C and consequently, such an appln. is a step-in-aid of execution within the meaning of Cl. (4) of Art. 179, Limitation Act of 1877”.

From the very passage quoted, it will be apparent that the appln. in the case decided by Benson and Miller JJ. was made by the person who was the proper legal representative. But in this case, as I have stated more often than once, Kunhi Raru was not the legal representative of Sankaran at all. Mr. Nambiar argued that nevertheless his appln. was available to save limitation and in support of that argument read the decision in ‘Jayanarayana v. Polayya’, 68 M.L.J 392 : (AIR (22) 1935 Mad 383. It is no doubt true that in this case the person who made the appln. had ceased to have any interest in the decree at the time he made the appln; but he was the original decree-holder and he was the person whose name appeared on the record and as such he was entitled to execute the decree and an appln. made by him would therefore be in order. That decision too does not therefore apply. Similar remarks may be made in respect of the decision in ‘Brahmayya v. Parasuramayya’, 12 M.L.J 348 which was the next case that Mr. Nambiar referred to. In that case the appln. was made by the person who at the time of the appln. was the only person legally competent to make it. Such a remark cannot be made of Kunhi Raru here.

6. In the present case the applns. relied on by Mr. Nambiar were made by Kunhi Raru who at the time he made those applns. had not been recognised as the heir of Sankaran and who it has been found was not his heir in respect of these properties. It is difficult to see how any appln. that he made can be availed of by persons who right through had been setting up a title hostile and adverse, to him. Before the argument of Mr. Nambiar can be accepted, one must be prepared to hold that any appln. made by a person who, though it may ultimately turn out, was a total stranger to the decree, would avail the proper legal representative of the deceased decree-holder if it can be shown that the person who made the appln. had a fair claim of right or acted ‘bona fide’. None of the decisions read before me has gone so far, and the absence of the clearest authority which compels me to so hold, I am not prepared to endorse this proposition.

7. The last argument of Mr. Gopalan Nambiar which requires to be noticed is that there has been a valid acknowledgment of the liability by the judgment-detbors within the meaning of Section 19 of the Limitation Act. In answer to the claim made by Kunhi Raru in R.E.P No. 369 of 1945, the judgment-debtors filed a counter in which they stated that Kunhi Raru was not entitled to execute the decree and that the proper persons entitled to do so were the wife and children of Sankaran. Reading that statement in relation to the claim made, Mr. Nambiar argued that it amounted to an admission of liability within the meaning of Section 19 of the Limitation Act. That it amounts to an admission seems to be a fair enough inference. But that will not help Mr. Nambiar because the admission he relied on was made more than 3 years after the dismissal of the last petn. filed by Sankaran. That admission therefore was not made: “before the expiration of the period prescribed for a suit or appln.” in the opening portion of is 19 of the Act.

8. The admission having been made after the period had expired cannot avail to revive a debt that had become barred.

9. In the result the Civ Misc Second Appeal is dismissed with costs. (Leave to appeal is refused).

C.R.K/V.B.B

10. Appeal dismissed.