MADHWACHARYA Vs. SHIVARAMA SHETTY

JUDGEMENT

(1.) This is a Judgment Debtor's Execution Second Appeal. The decree-holder filed REP. No 263 of 1964 on the file of the Executing Court for executing a decree under which he was entitled to recover a certain amount by sale of the properties subject to a charge. The said Execution Petition was returned to the decree-holder by the Executing Court for rectifying certain mistakes It was re-presented along with an application for extension of tune. The Court granted further time to comply with the deficiencies in the application and directed the return of Ex App to the decree-holder again The decree-holder was not able to represent the Execution Petition within the time prescribed by the Court He represented it however on 17-4-1964. with an application for condoning the delay in re-presenting thp same The Executing Court received the said Execution Petition after condoning the delay in re presentation Thereafter, the judgment-debtor was notified about the Execution proceedings At that stage, the judgment-debtor centended that the Execution Petition was barred by time since it had not been presented within three years beacuse it had been re-presented on 17-4-1964 and that the exparte order passed by the Court condoning the delay in re-presentation was ineffective Accepting the contention of the judgment-debtor, the Executing Court dismissed the Execution Petition on the ground that it was barred by time. Against that order, the decree-holder filed an appeal before the lower Appellate Court. The lower Appellate Court allowed the appeal and directed the Execution proceedings to proceed. This Second Appeal is presented against the order passed by the lower Appellate Court.

(2.) I find that there is no merit in this Second Appeal. It is not disputed that the Execution Petition was presentad before the Executing Court on 29-3-1962 and on that day, the petition was in time. It is no doubt true that the Execution Petition was returned to the decree-holder in. order to rectify certain mistakes and the petition was re-presented on 17-4-1964 after complyng with the requirements of law. The Executing Court condoned the delay in the re-presentation of the Execution Petition and issued notice to the judgment-debtor. The fact that there was long interval of time between the date on which the petition was returned to the decree-holder for re-presentation and the date on which it was represented was a matter which the Executing Court had to take into account in considering whether there was any laches on the part of the decree-holder in proceeding with the Execution proceedings. Having applied its mind at an earlier stage, it found that the said delay had to be condoned The point for consideration in this appeal is the effect of the order passed by the Court condoning the delay in representation on the question of limitation. When once the Execution Petition is duly lodged in the Executing Court, it must be deemed to have been instituted on the date on which it is so lodged and for the purposes of limitation, the crucial date for consideration is the date on which it is lodged for the first time. Any subsequent delay in re-presenting it on the Execution being returned to the decree-holder, cannot be taken into consideration for purposes of Limitation Act. If there is delay in re-presentation of a paper which has been returned to a party, it may be open to the Court to decline to proceed with the matter On the ground of non-prosecution under the provisions of the Code of Civil Procedure. It is not possible in the circumstances of this case when the Court has not proceeded to reject the application on the ground of non-prosecution to hold that the Execution Petition itself was barred by time under the provisions c f the Limitation Act When once it is conceded that the Execution Petition was filed in time on 29-3-1962, it must be deemed that the Execution proceeding was pending before the Executing Court until it was duly disposed of by an effective crder terminating the execution proceedings. It is also not disputed that no such order had been passed in this case till the judgment-debtor appeared before the Court and contended that the petition was not in time. In the foregoing circumstances, the lower appellate Court was right in holding that the Execution Petition was not barred by time.

(3.) The appeal therefore, fails and is dismissed with costs.