Decided on November 07,1953

Balabhadra Sadangi Appellant
Radha Krishna Patnaik Respondents


NARASIMHAM, J. - (1.) THIS is an appeal from the judgment of the District Judge of Berhampur reversing the judgment of the Munsif of Aska and dismissing the execution petition of the appellant, decree -holder on the ground that it was time -barred.
(2.) THE decree was obtained against one Michu Patnaik who is now dead. The first execution was E, p. No. 22 of 1945 filed against the said Michu Patnaik on 8 -1 -45 and closed on 24 -1 -45. The second execution was E. P. No. 40 of 1948 filed on 21 -1 -48 against the said Michu Patnaik and closed on 27 -1 -18. The third execution (E. P. No. 30 of 1951) Was filed on 11 -1 -51 against the legal representatives of the said Michu Patnaik and closed on 10 -4 -51. The present execution (E. P. No. 242 Of 1951) was filed on 5 -5 -51 against the legal representatives of the judgment -debtor. It is admitted that Michu Patnaik died on 12 -1 -48 prior to the filing of the second execution petition (E. P. No. 40 of 1948). If the second execution petition (E. P. No. 40/48) be held to be either not in accordance with law or else not amounting to a step -in -aid of execution within the 'meaning of Clause 5 of Article 182, Limitation Act it is clear that the present execution petition is time -barred. Hence, the sole question for consideration is whether an execution petition filed against the deceased judgment -debtor would save limitation under Clause 5 of Article 182.
(3.) THERE is a sharp conflict in the judicial decisions on this question and these have been summarised at page 2771 of Chitaley's Limitation Act, 3rd edition. The Madras, Calcutta, Bom -bay, Patna and Lahore High Courts seem to have taken the view that such an execution petition would be a step -in -aid and that limitation would therefore be saved. See - - 'Samia Filial v. Chockalinga Chettiar', 17 Mad 76 (A) ; - - 'Parakkat Devaswom v. Venkatachalam', AIR 1926 Mad 321 (B) ; - - 'Chinnan Chettiar v. Sivaganga Estate Manager', AIR 1949 Mad 348 (C) ; - - 'Bipinbehari Mitter v. Bibi Zohra', 35 Cal 1047 (D) ; - - 'Abdus Sattar v. Mohini Monan, AIR 1933 Cal 684 (E) ; - - 'Gopal v. Raising' AIR 1934 Bom 266 (F) ; - - - -Puran Mall v. Mt. Dilva', AIR 1924 Pat 333 (G) ; - - 'Sheogobind Ram v. Mst. Kishunbansl Kuer', AIR 1932 Pat 222 (H) and - - 'Maula Bakhsh v. Mohammad Ikram', AIR 1934 Lah 55 (I).;

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