K MUNISWAMAPPA Vs. P CHENNAKRISHNAPPA

JUDGEMENT

(1.) The appellant is the judgment-debtor and the respondent is the decree-holder. The respondent obtained a money decree on 17-7-1954 for Rs.7.931-25 in O.S. 65 of 1954 on the file of the erstwhile Subordinate Judge's Court, Bangalore. He filed the first execution petition No.336 of 1954 for recovery of the decretal amount. He prayed for the arrest of the judgment-debtor as well as for attachment, of the moveables and immoveables and for realisation of the decretal amount by the sale thereof. In the execution proceeding, the immoveable property of the judgment-debtor was attached and it was brought to sale. The case was posted for sale of the property on 15-9-1955. But the said execution petition was stayed on 2-9-55 in Claim Petition No. 326 of 1955 preferred by the children of the judgment-debtor. That claim petition was dismissed on 18-12-56. The execution petition was ordered to be filed. The decree-holder filed a second execution petition No.255/56 praying for the arrest of the judgment-debtor and the judgment-debtor was ordered to be arrested. But the judgment-debtor filed an appeal in R.A.11/57 and obtained an order of stay. Hence, the execution petition was ordered to be filed. The decree-holder filed the third execution petition No.49 of 1957 and sought for sale of the same property which was attached and brought to sale in the first execution petition. The property was ordered to be sold on 17-9-1957. But this sale was stayed by an order of injunction passed on 27-8-57 in O.S. 39/57 on the file of the District Judge, Bangalore. This execution petition was also ordered to be filed on 10-9-57. That suit was a suit for partition filed by the children of the judgment-debtor. The suit was decreed in favour of the plaintiffs, but it was held that the decree obtained by the present decree-holder was binding on them. The suit was disposed of on 30-11-61. The subsequent proceedings relating to O S.39/57 are not relevant since there was no order of stay or injunction in respect of the execution of the decree obtained by the decree-holder in the subsequent proceedings. During the pendency of the injunction order in O.S.39/57, the decree-holder filed the fourth execution petition No.233/60. The office of the court noted an objection calling upon the decree-holder to state as to what had become of the injunction order passed in O.S.39/57. After a few adjournments, on 25-11-1960, in the absence of the decree-holder, the execution petition was dismissed for default. But immediately, on the same day, the decree-holder appealed and filed a memo saying that he would not press the execution petition as the order of injunction passed in the suit was still in force. Accordingly, the order dismissing the petition for default was set aside and the execution petition was ordered to be "closed as desired" with the direction allowing the attachment to subsist. The order of injunction passed in O.S.39/57 was vacated on 30-11-1961. Thereafter, the decrec-holder filed the fifth - the present execution application No.1390/66 on 19-12-1966. He prayed for sale of the schedule immoveable of the judgment-debtor attached in Execution No.336/54. Along with the execution application, he filed a memo stating that there was an order of stay ween 2-9-55 and 18-12-56 of Execution No.336/54, that there was an order of injunction passed Execution No.49 of 57 restraining the decree-holder from proceeding with the sale in Ex.No.49/57 between 31-8-57 and 30-11-1961 and that there was no bar of limitation It further stated that the relief sought for is the one that has been sought for in Ex.No.49/57 and that the present petition is a revival of and or the continuance of Ex. No. 49 of 57. The judgment-debtor filed his objections and contended that the execution petition is barred by time, that the decree-holder should have filed a fresh application within time after 30-11-61 and that the Execution No.49/57 could not be revived. It was also pleaded that the dismissal of Execution No.233/60 on 25-11-60 is also a bar for the revival of Execution No. 49/57. He further contended that the execution petition should have been filed within three years from 30-11-61 or from 25-11-60 and that not having been done, it is barred by time. It was stated that the amount claimed is excessive and that the pendency of the application does not save the limitation for the present execution.

(2.) The executing court over-ruled the objections and ordered that the execution shall proceed. The lower appellate court confirmed the order of the executing court and dismissed the appeal filed by the judgment-debtor. The judgment-debtor has now filed the present second appeal.

(3.) It is urged on behalf of the appellant, firstly, that the present execution petition having been filed beyond 12 years, under S.48 of CPC, it is barred by time. Secondly, that the lower appellate court was in error in deducting the period of 5 years 6 months and 5 days being the total period of time covered by the stay order and the order of injunction while calculating the period of time, on the basis that the Limitation Act, 1963 applied to the facts of the case. Thirdly, it was contended that since according to the case of the decree-holder the first execution petition filed by him is still pending and has not been disposed of. since the present execution petition has been filed on 13-12-66, by virtue of S.31(b) of the Limitation Act, 1963, it is the Indian Limitation Act, 1908, which applies to the facts of the case. Fourthly, it was contended that the first execution petition could not be revived unless the present execution petition was filed within three years from the date of vacation of the order of stay or the date of the dissolution of the injunction order. Fifthly, it was contended that the first and third execution petitions could not be revived in view of the fact that the 4th execution petition had been dismissed. Sixthly, it was contended that the order of injunction in O.S.39/57 restrained the decree-holder from bringing the immoveable properties to sale and that it did not prevent the decree-holder from pursuing the other remedies open to him and that the other remedies apart from the one to which the injunction order related were barred It was next contended that the present execution petition having been filed beyond three years from 30-11-61 it is barred by limitation.