SKRISHNAPPA Vs. KISHENLAL AND

JUDGEMENT

(1.) In this case one Sevaram Lunidaram Sait obtained a decree for money on 21.2-1938. He applied for execution in Ex. 954/ 39-40 on 13-5-1940 and it was dismissed on 18-9-1940. Than an uncle of the present respondents, who were then minors, filed Ex. 325/40-41 and the same was dismissed on 22-10-41. On that date it is to be noted that both the respondents were minors. The first decree-holder appears to have attained majority on 27-3-1946 and made the present application Ex. 461/48-49 on 26-3-1949. The judgment-debtor pleaded that the execution application was barred by time, the same not having been filed within three years of the dismissal of the first execution application on 18-9-1940. The Second Munsiff, Bangalore, upheld that contention and held that the execution application was barred. On appeal the First Additional Subordinate Judge, Bangalore, reversed that decision and the judgment-debtor has come up in second appeal.

(2.) Mr. D.S. Gundachar, learned Counsel for the appellant, relies strongly on a case in --'Lakkegowda v. Kempa', 9 Mys LJ 389 (A) and contends that time for executing the decree must be taken to have begun to run even during the lifetime of Lunidaram Sait and under Section 9 of the Limitation Act any subsequent disability of his minor sons could not stop such running. That case, however, is easily distinguishable. In, that case the original decree-holder one Kalasegowda was alive when the execution application, which he had made on 23-7-1924 was dismissed, and it was sometime after his death that his minor sons made the next execution application. Obviously the right to make a second execution application had accrued in favour of Kalase-gowda as soon as the first execution application was dismissed and as time had begun to run against him the minority of his sons would not save the running of time. In the present case the fact that Sevaram Lunidaram Sait had died prior to the dismissal of the first execution application renders -- '9 Mys LJ 389 (A)', inapplicable.

(3.) Mr. Gundachar has next relied on a case in -- 'Bhagwant Ramchandra v. Kaji Mahamad Abas', 36 Bom 498 (B). That was a case of an attempt to secure extension of time provided under Section 48 of the Code of Civil Procedure and not of an execution application. Apparently other and different considerations apply in connection with the period prescribed in Section 48 of the Code, and some of the High Courts-have laid down that the disability provisions in the Limitation Act apply only to the periods of limitation prescribed under that Act and not for those prescribed under the Code of Civil Procedure; and in that decision there is no reference to Art. 182 of the Limitation Act.