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1950 DIGILAW 102 (MAD)

Manda Venkayya v. Margeni Pitchayya

1950-03-09

PANCHAPAKESA AYYAR

body1950
Judgment I have perused the entire records and heard the learned counsel for the appellant (decree-holder). The respondents (judgment-debtors) are absent and are unrepresented by any counsel. The point is simple. The appellant had filed E.P. No. 65 of 1944, in S.C. No. 535 of 1931, Sub-Court, Masulipatam, on 17th December, 1943, within 12 years of the decree, dated 5th February, 1932, and within three years of the amended decree, dated 18th December, 1940, for attachment and sale of the immovable properties of the judgment-debtors. So that E.P. was in time. But he had, on 22nd March, 1944, after limitation had operated, added on a slip, pasted to the E.P., when it was returned for rectification in another respect, adding further reliefs, like arrest of the judgment-debtors, attachment and sale of their movables, etc. This addition was clearly time-barred and was rightly objected to by the judgment-debtors, and rejected by the lower appellate Court. But, in doing this, the lower appellate Court also held the original prayer for attachment and sale of immovables also to be barred because of this material alteration, and directed the E.P. to be dismissed in toto with costs throughout. This, of course, was wrong. An addition of reliefs, after limitation to an E.P. containing a prayer for attachment and sale of immovables will not vitiate and invalidate the entire E.P. like a promissory note with a material alteration on it. Only the added reliefs will be deleted. It is not as if the appellant tried to alter the original reliefs by making it indecipherable and engrossing the new reliefs on it as if they were the original reliefs prayed for, in which case he might have been asked to answer for his attempted fraud on the Court, and possibly also denied all reliefs in his tampered-with E.P. So, I modify the lower appellate Court’s order and restore the E.P. to file so far as the original reliefs for attachment and sale of the immovable property is concerned, and direct the Sub-Court, Masulipatam, to proceed with it to that extent. In the circumstances, I direct the parties to bear their own costs in the appeal and C.M.S.A. Leave refused. V.S. ------ Order modified.