Oak, C.J. - (1.) THIS is an execution second appeal by a judgment-debtor. The question for consideration is whether an execution application by the respondent-decree-holder is within time or not.
(2.) THE Official Receiver, Kanpur obtained against Nanhal Lal a decree from the Court of Munsif, Havali, Kanpur on 17-7-1938. There was a series of execution applications. The third execution application was filed on 11-8-1943. When the amin went on 13-8-1943 to attach property, a sum of Rs. 800.00 was paid to the amin by Halke, brother of Nanhal Lal, judgment-debtor. That execution application was dismissed in part satisfaction. There were two more execution applications. The fifth execution application was dismissed on 9-4-1949. The sixth execution application by the Official Receiver was moved on 14-3- 1951, The decree-holder prayed for transfer of execution. The decree-holder realised that the execution application dated 14-3-1951 was moved more than 12 years after the date of the decree (17-7-1938). He moved on 27-8-1951 an application claiming extension of limitation on the ground that Nan-nai Lal, judgment-debtor had practised fraud. Without issuing notice of this application dated 27-8-1951, the court at Kanpur passed an ex parte order on 6-10- 1951 that the execution application was within time in view of the fraud practised by the judgment- debtor. Nanhai Lal, judgment-debtor appeared before the Court, and lodged a protest His protest was rejected on 2-2-1952, Nanhai Lal moved another application before the Court at Kanpur on 4-3-1952 under section 47 C. P. C. reagitating the question that execution was barred under Section 48, C. P. C. On 19-4-1952 the Court at Kanpur decided that the execution was not barred under Section 48, C. P, C. The judgment-debtor's objection having been overruled, the certificate of execution was transferred by the Court at Kanpur to the Court of the Additional Civil Judge, Jhansi on 3-5-1952. The decree-holder moved an application for execution on 4-5-1952 under Order 21, Rule 11. C. P, C.
(3.) THE Judgment-debtor moved another objection before the Additional Civil Judge, Jhansi raising the question of limitation again. This objection was dismissed by the Additional Civil Judge, Jhansi on 20-2- 1954, Against that order, the judgment-debtor appealed. The appeal was registered as Civil Appeal No. 81 of 11954. The appeal was dismissed by the District Judge on 19-11-1954 on the ground that the principle of res judicata precluded the judgment-debtor from raising the plea of limitation. The judgment-debtor filed a second appeal before this Court. The second appeal was allowed by this Court. The decree-holder's contention that limitation was extended under Section 48, C. P. C. due to fraud practised by the judgment-debtor was not accepted by this Court This Court remanded Civil Appeal No. 81 of 1954 for rehearing. The question whether limitation was extended under Section 20. Indian Limitation Act in view of certain payments by the judgment-debtor, and the question whether the plea of limitation was barred by res judicata were left open.;