Decided on March 22,1963



Gopal Rao Ekbote, J. - (1.) This revision petition raised a short but important question of limitation. The facts necessary for the purpose of appreciating the contentions raised before me are that the decree-holder who is the petitioner before me obtained a small cause decree on 23-9-1954 against the judgment-debtor who is the respondent. He filed the execution petition on 27-10-1956. He prayed for the attachment of some moveables including the animals and standing crop on Survey No. 284/1 belonging to the judgment-debtor. This execution petition, before it was numbered was returned for certain clarifications: firstly, the decree-holder was asked to state how the standing crop could be attached under Order XXI, Rule 43, Code of Civil Procedure, secondly he was asked to state as to why notice under Rule 22 was not sought before attachment. Seven days time was granted for these clarifications. The execution petition was re-presented on 8th November, 1956, after complying with the requirements. The petition, however, was again returned on 15th November, 1956, with a fresh objection that he should file an affidavit showing the estimate of the standing crop and a separate schedule for that item to be filed. Seven days time was again granted. The decree-holder filed the affidavit on 22nd November, 1956. The petition, however, was returned again on 28th November, 1956 for firstly verification of the schedule, secondly for the amendment of prayer -- the decree-holder was asked to confine his prayer between the moveables and that of standing crops and thirdly he wag directed to supply fly sheet for wrapping purposes. For compliance with the above said requirements three days time was granted to the decree-holder. He did not represent the execution petition for over two years. On 30-9-1959 he re-presented the application with necessary amendments and filed the second execution petition. He also subsequently filed an application to excuse the delay in representing the first execution petition. This course adopted by the decree-holder was objected to by the judgment-debtor. He contended that the execution petition is time-barred and there is no reason to excuse the delay. The learned District Munsif. Rajahmundry through his order dated 30th March, 1960 upheld the contentions raised by the judgment-debtor, refused to condone the delay and dismissed the execution petition as time-barred. On the second execution petition filed along with the represented first execution petition it was merely noted that "order pronounced. E. A. dismissed. No costs". It is against this order that the decree-holder has come to this Court challenging the correctness of the order of the learned District Munsif, Rajahmundry.
(2.) The principal contentions raised by Mr. Jagannatharao, the learned counsel for the petitioner are that the order of return dated 28th November, 1956, was an improper order of return, that therefore it must be treated as a final order and in the alternative he pleaded that in case it is found that the said order of return is not a final order then the order of dismissal after refusing to excuse the delay passed by the Court below on 3oth March, 1960, is the final order; thus the second execution petition could not be dismissed as time-barred. He also submitted that the lower Court has erred in refusing to condone the delay.
(3.) In order to appreciate these contentions in their proper perspective it is necessary to look into the relevant provisions of the Indian Limitation Act and the Code of Civil Procedure. It is Article 182 (5) of the Indian Limitation Act which is applicable to the facts of the case. For the execution of a decree or order of any Civil Court three years period is prescribed and according to Clause (5) of the said Article the subsequent execution petitions have to be filed from the date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step-in-aid of execution of the decree or order. It is thus obvious that Clause (5) of the said Article provides that where there is a previous application for execution or to take a step-in-aid of execution, time runs from the date of the final order on such application, In order that the clause may apply the following conditions are necessary: (1) the application must be one for execution or to take a step-in-aid of execution; (2) the application must be in accordance with law; (3) the application must be made to the proper Court; and (4) there must be a final order on the application.;

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