KUNCHERIA KOCHOUSEPH Vs. OUSEPH CHANDY

JUDGEMENT

(1.) The decree holder in O.S. No. 1722 of 1108 of the Alleppy Munsiff's Court is the appellant in this second appeal. The appeal relates to an order in execution and the point raised is one of limitation. The decree is a simple money decree against three defendants who were made jointly and severally liable for the decree debt. The decree is dated 11.12.1108. The last execution application was filed on 30.12.1120 i.e. more than 12 years from the date of the decree. It is not disputed that the previous execution application has been judicially disposed of on 14.12.1118. The decree holder pleaded that he was entitled to an extension of six months in the period of limitation by reason of the Travancore Judgement debtors' Temporary Relief Proclamations dated 1.8.1110 and 30.10.1110. Under these proclamations execution of decrees against agriculturists was stayed for a period of six months and it was also provided in the Proclamations that this period should be excluded in computing the period of limitation prescribed in respect of execution of decrees. If this period is excluded the execution application will be in time. The 1st defendant contended that he is not an agriculturist, that the Proclamations would not apply to him and that therefore the decree holder is not entitled to an extension of the period of limitation for executing the decree against him. The Trial Court held that the 1st defendant is an agriculturist, that the Proclamations applied to him and that therefore the decree holder was entitled to an extension of six months in the period of limitation for executing the decree. In appeal filed by the 1st defendant the District Court held that the 1st defendant was not an agriculturist during the period the Proclamations were in force, that therefore the Proclamations would not apply to him and that the decree holder was not entitled to an extension of the period of limitation. The lower appellate court therefore held that the execution of the decree was barred as against the 1st defendant. As the other defendants did not contend that they are not agriculturists the lower appellate court held that the Proclamations would apply to them and that therefore execution of the decree was not barred as against them.

(2.) On the question whether the 1st defendant was an agriculturist during the period the Proclamations were in force we agree with the view of the lower appellate court. In the Proclamations "Agriculturist" is defined as "any person whose main occupation or main source of livelihood is agriculture". In the plaint in this case which was filed in 1108 and in the decree the 1st defendant is described as a trader. What PW 1 swears is that when he gave evidence, namely in 1122, the occupation of the 1st defendant was agriculture. In the chief examination itself he admits that 12 years previously the occupation of the 1st defendant was trade. What PW 2 the plaintiff swears is that on the date of the suit the 1st defendant was a trader and that at the time of his giving evidence i.e. (1122) agriculture was the source of livelihood of the 1st defendant. The 1st defendant swears that his occupation is trade, that he got some properties only in 1118 under a partition deed executed by his father and that until then his only source of livelihood was trade. It is therefore clear that on the date of the Proclamations the 1st defendant was a trader and not an agriculturist. The Proclamations could not therefore apply to him and the decree holder is not entitled to an extension of the period of limitation by reasons of the Proclamations.

(3.) In this Second Appeal a new point was argued by the learned Advocate for the appellant although it was not taken in the Appeal Memorandum. A property has been attached before judgment in this case and one of the prayers contained in the execution application dated 30.12.1120 is for sale of this property. It is argued for the appellant that so far as this prayer is concerned the execution application cannot be held to be barred by limitation. According to him the attachment before judgment continues to be in force even though the execution application has been dismissed and that the application to sell the property attached is only a step-in-aid of execution and not a fresh application contemplated by S.48 C.P.C.