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Madras High Court
Ibrahim Sahib vs Achi Thayarammal on 18 October, 1927
Equivalent citations: (1928) 54 MLJ 452
Author: Devadoss


Devadoss, J.

1. It is urged that the Subordinate Judge had no jurisdiction to restore to file an application made in the course of execution proceedings and therefore the order of the Subordinate Judge is ultra vires. The respondent made an application for execution which was dismissed on the 24th July, 1925. Before the dismissal of that petition, the petitioner applied for setting aside an ex parte decree passed against him and paid into court the decree amount. The day after the withdrawal of the execution petition by the respondent, the petitioner’s vakil withdrew the petition for setting aside the ex parte decree, as he thought that the decree in favour of the respondent had been barred by limitation. On the same day, 25th July, 1927, the respondent applied for payment of the amount in court to him. The Subordinate Judge dismissed this application for non-appearance on 17th October, 1925, and he restored it on 23rd October, 1925. The question is whether this application for payment out was an application in execution. The contention of Mr. Desikan is that as much as it was made after the passing of the decree in the suit this must be considered to be an application in execution and that the decision in Chenchayya v. Pichi Reddi (1926) 52 MLJ 153 governs the case. I am unable to uphold the contention that all aplications made after the passing of a decree are necessarily applications in execution or execution applications. The money in court in this case was not realised in execution of the decree. It was paid in by the petitioner when he applied for setting aside the ex parte decree. That being so, the application of the respondent for payment of the money cannot be said to be an execution application or an application in execution proceedings so as to come within the principle of the decision in Chenchayya v. Pichi Reddi (1926) 52 MLJ 153. I hold that the Subordinate Judge had jurisdiction to restore the application to file.

2. There is no other point in this case.

3. The petition is dismissed with costs.

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