JUDGMENT
1. This Revision is filed by the Judgment Debtor in EP.No.115/97 in S.C.No.340/91 on the file of the Principal Senior Civil Judge, Kurnool.
2. Small Cause Suit, SC.No.340/91, filed by the respondent No. l against the petitioner as well as the 2nd respondent was decreed. On the ground that the whereabouts of the 2nd respondent, who is the principal debtor, are not known, the 1st respondent had chosen to initiate execution proceedings against die petitioner.
3. Before the executing Court, the petitioner raised several contentions. One of the principal contentions was that initially the suit was filed by paying a Court fee of Rs.2/- as against die requisite Court fee of Rs.501/-. The plaint so presented was returned granting seven days time to the plaintiff to pay the deficit Court fee. The same was not paid within the stipulated time. An application in I.A.No.573(A)/91 was filed for condonation of delay of 43 days in paying the deficit Court fee, the same was ordered and the deficit Court fee was paid. It was the contention of the petitioner herein before the executing Court that had the plaint been presented on the day on which the deficit Court fee was paid, it would have become barred by limitation. On that count, the very decree is a nullity. The second contention was that the trial Court condoned the delay in payment of the deficit court fee without notice to the petitioner. These contentions were repelled by the executing Court. Recording a finding that the petitioner, though possessing sufficient means and capacity, has not paid the decretal amount, ordered him to be sent to the civil prison on his failing to pay the amount by 29-10-1999. It is the said order that is sought to be revised in this CRP.
4. Sri V.L.N.G.K.Murthy, the learned counsel for the petitioner, urged before this Court that the decree itself was a nullity, inasmuch as it would have been time barred had it been presented on the day on which the deficit Court fee was paid. He has secondly contended that while granting time for payment of the deficit Court fee, the trial Court did not issue notice to the petitioner herein. On that ground also the suit, and thereby the decree becomes vitiated. He has lastly contended that the executing Court at least ought to have granted instalments or time to the petitioner, in case it was not accepting the contention as to the nullity of the decree.
5. The 1st contention of Sri V.L.N.G.K.Murthy, the learned Counsel for the petitioner is no longer res integra. The Supreme Court in ITTYAVIRA MITHAI vs. VARKEY VARKEY, , had taken a view that it is the duty of the Court to take notice of the fact as to whether the suit is filed in limitation or not, even if it is not referred to in the pleadings and still any omission or failure in this regard does not make the proceedings or the outcome thereof a nullity. It was further held that at the most, the said decree can be said to be erroneous and that such erroneous decree will hold good and will not be open to challenge on the basis of being a nullity. Therefore, the plea in this regard is liable to be rejected.
6. So far as the 2nd contention as to the notice not having been given to the petitioner by the trial Court before granting time for payment of deficit fee is concerned, if the petitioner was aggrieved of his not having been issued notice before time for payment of deficit Court fee was extended, he ought to have raised his objections at the earliest point of time. The fact remains that he has not raised those objections before the trial Court at any point of time and it was raised for the first time in execution proceedings, is apt to refer to the judgment of this Court in NARASIMHA RAO v. NARASIMHULU, AIR 1967 AP 141, wherein this Court held that if the parties or their counsel do not choose to raise such objections after entering appearance or at a preliminary stage, they cannot be allowed to address the very same contention at a later stage, much less, in execution proceedings. Following the same, I reject the 2nd contention also.
7. So far as the last contention is concerned. Sri V.L.N.G.K. Murthy submits that the petitioner is quite old and if he is given sufficient time, he will take steps to satisfy the decree. The refusal the request
by the executing Court cannot be said to be without basis. However, having regard to the age of the petitioner and the fact that he is only the guarantor to the transaction, six months time from today is granted for the petitioner to pay the decretal amount in three bimonthly instalments. In case the decree remains unsatisfied after a period of six months, it shall be open to the 1st respondent to take such steps as are open to them. The order under revision is accordingly modified to the extent indicated above. With this modification, the revision is disposed of. But in the circumstances of the case, there shall be no order as to costs.