1. For a satisfactory disposal of this case it is necessary to obtain a finding from the Lower Appellate Court on issue II(a) in the suit, namely:—
“Whether the lat defendant's fights in the properties decreed to him in O.S No. 3 of 1897 on the file of the District Court, Godavari, have become extinguished by his failure to execute the said decree as alleged by defendants 1 to 3, 8 to 13, 16 to 17, 19, 21 to 25?”
2. Further evidence on this point might be allowed to be adduced by both sides. The parties might also be permitted to adduce relevant further evidence as regards the nature and the dates of the pleadings in the former partition suit and the District Judge will find on those points also.
3. The findings will be submitted in eight weeks from the date of receipt of records in the District Court and ten days will be allowed for filing objections.
[The Lower Appellate Court submitted that the rights of the 1st defendant Veera Subramaniam in the decree have not been extinguished by his failure to execute the decree in O.S No. 3 of 1897”]
P. Somasundaram—for Appellant.
A. Krishnasami Aiyar—for 1 to 4, 7 to 9 Respondents.
K. Sathyanarayanamurthi—for 18th Respondent.
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 father. The validity of the assignment itself was questioned, but the District Judge was justified in rejecting that plea as the assignor admitted the assignment.
4. The suit was trough's 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 plaint 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-bora natural son of his father. That decree for partition was dated in January 1902 and it decreed partition of the immoveable 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.
5. 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.
6. This second ground of decision cannot be supported and is not relied on by the learned vakil for the respondent.
7. 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 plain import of the language used in the sub-article, the 1st defendant was entitled on the data of this suit to apply for execution of the decree as regards 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 of order has ton 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 mid persons as their representatives as it may be made by”
8. This clause, it must be admitted, floes not in terms apply to the present case because the decree was not passed severally is favour of mere 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 dona 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 seams to be supported by the decision in Ramasami v. Anda Pillai(1), which is the judgment pronounced on review of the case decided in Ramasami v. Anda Pillai(2). 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 mouths from this date.
Spencer, J.:— I agree.
9. Appeal allowed.