PENUMHA ANNAPURNAMMA Vs. POLISETTI JAGANNADHAM

JUDGEMENT

(1.) This revision petition is againt the order of the District Munsif of Narasapur dismissing the petitioner's application for execution as barred under Article 182, Clause (5), Limitation Act.

(2.) The petitioner obtained a decree in a small cause suit on 9th March 1936. He filed an execution petition, E. P. No. 903 of 1936, on 21st September 1936 for issue of a warrant for arrest of the judgment-debtor. On 23rd September 1936 an order for arrest was passed, returnable on 20th October 1936. On 21st October 1936 the following order was passed by the learned District Munsif of Narasapur. "Judgment-debtor not found for arrest. Struck off." The present E. P. was filed on 31st March 1947, more than 11 years after the order referred to was passed on the previous E. P. prima facie the petition is barred under Article 182, Clause (5), Limitation Act.

(3.) The learned counsel for the petitioner argues that the order made on 23rd September 1936 in the terms referred to and the petition having been struck off, it is not a final order, that the E. P. No. 903 of 1936 must be deemed to have been pending and the present execution petition is only a reminder to continue the proceedings in the previous petition and that therefore Section 182, Clause (5), Limitation Act does not apply. In support of this contention be relied on Jitmal v. Jwala Prasadt 21 ALL. 155 : (1899 A. W. N. 6). In that case the decree was dated and December 1885 and after various infructuous applications for execution an application was filed on 4th August 1897 for warrant of arrest of the judgment-debtor. The warrant for arrest was ordered, but, the peon that was sent to arrest the judgment debtor reported that he concealed himself and in consequence the Court struck off the execution application. On 29th November 1897 the decree-holder again applied for the arrest of the judgment-debtor, but that application also was struck off on 20th February 1898, without the arrest having been made, Against the order striking off the latter application the decree-holder appealed to the High Court where an objection was taken that the decree could no longer be executed having regard to Section 230, Civil P. C., corresponding to Section 48 of the present Code, and, it was held that the warrant of arrest issued on the decree-holder's application of 4th August 1897 still subsisted and ought to be executed.