PAPIAHACHARY Vs. GURUSAMAPPA

JUDGEMENT

(1.) The short point for consideration in this revision petition is whether Execution Application No. 889 of 48-49 on the file of the Court of Small Causes, Bangalore, filed on 23-12-1948 is in time or whether it is barred by time. The decree which is sought to be executed was passed on 10-6-1940. In Execution Case No. 976 of 41-42 certain movables and immoveables were attached but the execution application was dismissed as being old and the attachment was ordered to subsist. In Execution No. 84 of 43-44 the movables attached in the previous execution case were sought to be sold. But a third person one Venkatachalam, who is not the judgment-debtor, filed a suit in O. S. No. 224 of 43-44 claiming that the movables attached are his and got an order to stay sale of the movables sought to be sold in that execution case. The result was that the execution application was dismissed as there was no prayer in that execution application for proceeding against the judgment-debtor in respect of any other property or by his arrest. Thereafter O. S. No. 224 of 43-44 was dismissed for default on 30-11-1944. Then the decree-holder filed Execution Case No. 459 of 44-45 for proceeding with the sale of the movables already referred to but this was dismissed on 6-3-1945 on account of default of the decree-holder to pay process fee and to file a copy of the attachment list. The original suit was, however, restored to file on 20-12-1946 and ended in a compromise decree on 17-2-1948. According to the compromise the claimant paid Rs. 140/- with the result that the attachment of the moveables is raised and his claim to the same is allowed. The decree-holder then filed Execution 889 of 48-49 on 23-12-48 for arrest of the judgment-debtor and for attachment of other movables. It will be noticed that this execution application is not only beyond three years from 21-12-1943 on which Execution Case No. 84 of 43-44 was dismissed but also more than 3 years from 6-3-1945 on which Execution No. 459 of 44-45 was dismissed. The Execution Application No. 889 of 48-49 is on the face of it barred by time.

(2.) It has however to be observed that it has been established by a long series of cases in our High Court that where an execution application is dismissed for statistical purposes on the ground that execution has been stayed or dismissed for no fault of decree-holder the first execution application after the bar is removed in case it had been stayed, must be treated as an application for a revival of the previous execution case dismissed for statistical purposes and not as a fresh execution application for purposes of Articles 181 and 182, Limitation Act. We need refer only to -- 'Venkate Gowda v. Mudli Setty', 19 Mys LJ 82 (A) and the case law referred to in it.

(3.) It is contended that since Execution No. 84 of 43-44 was stayed pending decision in O. S. No. 224 of 43-44, and that case must be deemed to be pending till it was disposed of by compromise on 17-2-1948, the period between the stay and the compromise must be excluded. What was stayed however is sale of moveables sought to be sold in Execution No. 84 of 43-44 and the decree-holder was not prevented by any stay order from proceedings against the other properties of the judgment-debtor or by his arrest. As such, while a fresh execution application after the stay order ceased to be operative, for proceeding with execution of the decree to the extent the stay order had come in the way of execution of the decree may be taken as a revival of the old execution case, it cannot be said that an execution application for execution of the decree to the extent the stay order did not come in the way of its execution, is a revival of the old case and that it is not governed by Articles 181 and 182 if it is filed beyond time as provided in those articles.