POULO VARGHESE Vs. KOCHUVARIATHU JOSEPH
HIGH COURT OF KERALA
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(1.) Additional plaintiffs 2 and 3 are the appellants. The second appeal relates to an order in execution. The decree, which is one for money, was passed on 19.5.1111. The first execution petition was filed on 3.2.1112. It contained prayers for the issue of warrant against the judgment debtors and for attachment of their properties. But no schedule of properties was filed. It was dismissed on 22.5.1112. The second execution petition was filed on 19.5.1115. It also contained a prayer for attachment of properties, but no schedule was filed. That execution petition was dismissed on 17.8.1115. The third execution petition was filed on 2.8.1119. It contained a prayer for the issue of warrant and also a prayer for allowing other reliefs that might be asked for subsequently. There was no specific prayer for attachment of properties. That execution petition was dismissed on 24.2.1120. The next execution petition was filed on 27.4.1123. It also did not contain a prayer for attachment of properties. The 7th defendant contended that the execution petition was barred by limitation, having been filed more than three years after the disposal of the prior execution petition. The execution court held, by its order dated 28.4.1124, that the execution petition was barred by limitation. In appeal filed by the decree holder from that order, the District Court held that the execution petition dated 2.8.1119 had not been judicially disposed of and that therefore the execution petition dated 27.4.1123 should be deemed to be one in continuation of that petition. This view was confirmed by the High Court in second appeal.
(2.) Even before the execution court passed the order dated 28.4.1124 the decree holder filed another petition on 10.4.1124 for attachment of certain properties with a prayer that the petition should be treated as part of the execution petition dated 27.4.1123 and that that execution petition should be amended accordingly. A schedule of properties sought to be attached was also filed along with the petition. On 19.4.1124 the decree holder applied for immediate attachment of the properties, and attachment was allowed. Subsequently, the court passed the order holding that the execution petition dated 27.4.1123 was barred by limitation. After the District Court reversed that order the decree holder again applied for attachment of the properties and attachment was ordered on 9.3.1950. In the meanwhile, the second defendant died and his legal representatives were impleaded as additional defendants 8 to 12. When the properties came for sale the 8th defendant objected on the ground that the petition dated 10.4.1124 for attachment of properties was barred under S.48, Code of Civil Procedure. The execution court up-held this objection and held that the petition dated 10.4.1124 for attachment of properties should be deemed to be a fresh execution petition and that, since it was filed more than twelve years after the date of the decree, was barred under S.48, C.P.C. The appeal filed by the decree holder from this order was also dismissed. Hence this second appeal.
(3.) The two questions that were urged in the appeal are (1) that the petition dated 10.4.1124 which was one for amendment of the execution petition dated 27.4.1123 is not a fresh execution petition and that the courts below ought to have allowed the amendment and (2) that the 8th defendant is estopped from raising the contention that the petition dated 10.4.1124 is barred under S.48, C.P.C.;
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