Y CHANDRASHEKARA HEGDE Vs. OMAYYA SHETTY

JUDGEMENT

(1.) This second appeal arises out of the Execution Petition No.REP.387/ 1960 on the file of the Principal Munsiff, Udupi. The decree-holder was one Muddu Shetty. He instituted the suit OS.214/1949 against the judgment debtor for redemption of a usufructuary mortgage created under the mortgage deed dt. 14-6-1935. A preliminary decree for redemption was passed on 7-12-1950.Thereafter, Muddu Shetty filed RIA.508J1953 for passing a final decree after complying with the conditions imposed on him by the preliminary decree. That application was dismissed by the order dt.31-3-1954 by the trial Court. Muddu Shetty filed an appeal against that order in AS.250(1954 on the file of -the Dist Judge, Mangalore. The learned Dist Judge set aside the order of the trial Court dismissing the application for the passing of the final decree and remanded the case to the trial Court by his judgment dt.24-2-1955. Against the order of remand, an appeal was filed by the judgment-debtor before the High Court of Madras. On the re-organisation of the States, the said appeal was transferred to the file of this Court under the provisions of the States Reorganisation Act. On transfer, it was numbered as MA(M) 9/1956 on the file of this Court and it was dismissed by the judgment dt.31-8-1959. Since no order of stay was obtained from the High Court, the trial Court proceeded to dispose of the case in accordance with the order of remand passed by the Dist Judge. It passed a final decree on 18-4-1955. No appeal was filed against the said final decree. After the appeal MA(M).9/1956 was disposed of by this Court on 31-8-1959. the decree holder filed the execution petition out of which this appeal arises, on 13-7-1960, within one year from the date of disposal of the appeal, and beyond three years from the date on which the final decree was passed by the trial Court pursuant to the order of remand. Several objections were taken by the judgment debtor and one of them related to the question of limitation. During the pendency of the execution petition, the decree-holder died and his son was brought on record as supplemental decree-holder. The executing Court over-ruled the objections raised by the judgment-debtor and directed the execution to proceed by its order dt. 13-12-1972. It, however, ordered that the decree-holder could claim mesne profits only for a period of three years. Aggrieved by the order of the executing Court, the judgment debtor filed Execution Appeal 1/1975 on the file of the Civil Judge, Udupi, and the legal representative of the decree-holder filed cross-objections. The learned Civil Judge allowed the appeal and dismissed the execution petition holding that it was barred by time. He, however, held that the finding of the executing Court that the decree holder could claim, if the execution petition was in time, mesne profits only for a period of three years, was erroneous and that the decree-holder was entitled to claim mesne profits in respect of the mortgaged properties till the date of delivery of possession. Aggrieved by the judgment of the learned Civil Judge, Udupi, the legal representative of the original decree-holder has filed this second appeal.

(2.) In this appeal, two questions arise for consideration. (1) Whether the execution petition filed on 13-7-1960 was in time; and (2) Whether the decree-holder is entiled to claim mesne profits only for a period of three years and not till the date of delivery of possession of the mortgaged property,

(3.) The question of limitation is governed by Article 182 of the Indian Limitation Act, 1908. The relevant part of tha,t Article reads : Description of application.-For the execution of a decree or order of any Civil Court not provided for by Art. 183 or by Sec.48 of the CPC 1908 (V of 1908) . Period of limitation.-Three years or where a certified copy of the decree or order has been registered six years. Time from which period begins to -run.- (1) The date of the decree or order, or (2) (Where there has been an appeal) the date of the final decree or order of the appellate Court, or the withdrawal of the appeal,