LEKSHMANA PERUMAL NADAR Vs. SUDALAMUTHU NADAR

JUDGEMENT

(1.) THE second defendant in O. S. No. 845 of 1115 on the file of the Nagercoil District Munsiff 'court is the appellant. THE decree in the case was passed on 31st Kanni 1116. THE execution petition filed by the decree-holder on 26th Thulam 1120 was objected to by the second defendant on the ground that the decree had already become barred by limitation. In answer to this objection, the decree-holder contended that the starting point of limitation is the date of the final order by which the second defendant's application set aside the decree under O. 9, R. 13 of the Code of Civil procedure, was dismissed. On 19th Thulam 1116 the second defendant had filed an application under O. 9, R. 13 to set aside the decree and to restore the suit to file. That application was dismissed by the trial court on 29th Edavam 1117. THE second defendant's appeal against that order was dismissed by the District court on 4th Karkadagam 1118. Against such order of dismissal, C. R. P. No. 192 of 1119 had been filed by the second defendant. THE High Court dismissed the c. R. P. on 27th Chingam 1120. THE position taken up by the decree-holder is that the period of limitation for the execution of the decree in the case should be computed from 27th Chingam 1120. THE executing court accepted this position and overruled the plea of limitation raised by the second defendant. THE order was confirmed by the lower appellate court. Hence this second appeal.

(2.) THE only question for decision in this appeal is whether the pendency of an application under O. 9, R. 13 to set aside the decree in the case, will in any way affect the period of limitation prescribed for the execution of the decree. THE first position taken up by the decree-holder is that the period during which the second defendant was prosecuting his application under O. 9, R. 13, has to be excluded from the period of limitation prescribed for the execution of the decree. THE mere filing of an application by the defendant to set aside the decree, does not operate as bar against the decree-holder's right to execute the decree unless such application is followed by an order restraining such execution. THE period during which execution is suspended by such an order will be excluded from the period of limitation prescribed for the execution of the decree. S. 15 of the limitation Act (Act VI of 1100 of Travancore) provides for such exclusion. In the absence of any order restraining the execution of the decree, there is no scope for excluding any period from the normal period of limitation for execution of the decree. In Jivaji v. Ramachandra I. L. R. 16 Bom. 123 it was ruled that the unsuccessful attempts made by the defendant to set aside the exparte decree could not have the effect of extending the period prescribed by law for execution of the decree. This ruling was followed by a Full Bench of the Travancore High Court in Ouseph v. Mariam 18 T. L. J. 114 where it was held that the mere pendency or proceedings towards vacating the decree, does not operate as an obstruction preventing the execution of that decree so as to extend the period of limitation for execution of such decree. THE ruling in chidambarathanu Pillai v. Ponnayya 22 T. L. J. 666 is also the same effect. In karutha Kunju v. K. Charayan 30 T. L. J. 70 and in Kunjan Kanda v. Neelakantan 1948 T. L. R. 73 also it was held that the pendency of an application under 0. 9, r. 13 to set aside the decree, could not suspend the period of limitation for the execution of the decree. We see no reason to differ from the view consistently taken in all these decisions. Accordingly we hold that the decree-holder in the present case is not entitled to get any exclusion of the period during which the second defendant-appellant was prosecuting his application under 0. 9, R. 13, from the normal period available for the execution of the decree.

(3.) EVEN though the second defendant had filed an application under 0. 9, R. 13, C. P. C. to set aside the decree in this case, there was no order restraining its execution. Hence the period of limitation began to run from the date of the decree itself, that is, from 31st Kanni 1116. It is an unregistered decree. The present execution petition filed on 26th thulam 1120, is beyond three years from the date of the decree, and as such, it is barred by limitation.