CHERIAN VARGHESE Vs. NARAYANA IYER KRISHNA IYER

JUDGEMENT

(1.) The question arising for decision in this Second Appeal is whether execution of the decree is barred by limitation. The execution court held that it was barred and the lower appellate court reversed the decision, holding that the judgment debtors had waived the plea of limitation. The first defendant has therefore preferred this Second Appeal.

(2.) The decree which is an unregistered one was passed on 6-6-1954. The first execution petition filed on 25-7-1955 was dismissed by a judicial order on 14-2-1956. The next execution petition was filed on 31-1-1957 and this was similarly dismissed on 20-6-1957. The third execution petition was filed only on 27-3-1961, i. e. beyond three years from 20-6-1957. On 28-3-1961 the court ordered 'notice of limitation returnable on 8-8-1961.' Pursuant to this order notice was issued to the judgment debtors who did not file any objection. Thereupon the court ordered notice to the judgment debtors under R.22 O.21, Code of Civil Procedure. On receipt of the notice the first defendant filed objections on 16-8-1961, contending that execution was barred by limitation. The decree holder filed a reply on 3-10-1961 stating that the execution petition was in time, as execution was stayed under Acts III of 1956 and XXXI of 1958 for periods of six months under each Act. The execution court held that the second execution petition having been filed after the commencement of Act III of 1956 the decree holder was not entitled to exclude the period of six months under that Act and that even if the period of six months under the latter Act was excluded, execution was barred.

(3.) The decree holder filed an appeal and he relied on a new ground, viz., that the judgment debtors had failed to object to execution on receipt of the notice ordered on 28-3-1961. This was upheld by the lower appellate court which held that the judgment debtors had waived the plea of limitation.