STATE BANK OF TRAVANCORE Vs. M RAMU

JUDGEMENT

(1.) The question in this appeal is whether a decree obtained by the decree- holder (Appellant), the State Bank of Travancore has become barred by limitation.

(2.) For the purpose of resolving this question between the parties som facts relevant may be stated. The State Bank of Travancore obtained a decree against M. Ramu, the Respondent, in O.S.96 of 1951 before the District Court, Trichur, for Rs. 37,077-50, with costs and current interest, the date of the decree being 18-1-1952. The decree-holder filed several execution petitions from 1953 upto 1968 and all of them were dismissed for one reason or the other. The last of the Execution Petitions was filed on 1-6-1964 for recovery of the decrttal amount together with costs and current Interest. This application was beyond 12 years from the date of the decree. The judgment-debtor inter alia contended that the said petyion was not maintainable and was barred by time. The previous execution petition, viz., Ex.49 of 1862 before the District Judge, Bangalore, was dismissed on 22-6-1963.

(3.) It was contended before the executing Court, on behalf of the decree- holder that the previous execution petition was dismissed for statistical purposes and the subsequent execution petition 43 of 1964 filed on 1-8-1964 was to revive the earlier execution petition, viz., Ex. 49/1962. On behalf of the Respondent-judgment debtor, it was contended that the Bx.49/1962 was dismissed for default on the part of the decree-holder and that being a judicial order and not a ministerial one, it became a final order and the present execution petition, Ex.4311964 riled beyond 12 years after the date of the decree is hit by the provisions of S.48 of the CPC. The executing Court came to the conclusion that the execution petition 4311964 was barred by time inasmuch as the earlier execution petition was not dismissed for statistical purposes. Aggrieved by this order the decree-holder has preferred this appeal. The same contentions that were advanced before the executing Court are taken up in this appeal as well by both the parties. To appreciate the respective contentions of the parties it is necessary to extract the material portion of the order sheet in Exn. 49 j 1962 which is as follows: