KUNJAN PILLAI Vs. SANKARA PILLAI

JUDGEMENT

(1.) ADDITIONAL decree-holders 2 and 3 have preferred this appeal questioning the correctness of the lower court's finding that the decree in O. S. 317/1106 of the Chengannor Munsiff's Court has become barred by limitation. The decree was passed on 10. 8. 1106 and the present execution petition was filed on 24. 7. 1122. Prima facie the petition is out of time as per S. 48, CPC.

(2.) THE decree-holders have urged three grounds to escape the bar of limitation. THE first ground is that the dismissal order dated 8. 4. 1114 passed on the prior execution petition filed on 19. 2. 1114 was not a judicial order but only a ministerial order. We see no force in this contention. THE execution petition was definitely posted to 8. 4. 1114 on the decree-holder's application for taking the steps necessary for proceeding with the execution. But they did not care to take such steps and the result was that the execution petition was dismissed on the same date. It was clearly a judicial disposal. THE second ground urged is that the acknowledgment made by the 3rd defendant in the Debt Relief Petition filed by him on 25. 5. 1117 would save the decree from the bar of limitation. Even such an acknowledgment cannot be of any avail to the decree-holders to sustain a fresh execution petition beyond the 12 years' mentioned in S. 48, CPC. THEn there is the third ground that the period of the pendency of the Debt Relief petition has to be excluded from computing the period of limitation because the presentation of that petition had the effect of staying the execution of the decree. THE decision in 1952 TCLR 426 is an answer to this contention. It has been ruled in that case that the filing of a petition under S. 16 of the Debt relief Act does not ipso facto operate as a stay of execution of the decree included in that petition. S. 21 of the Debt Relief Act enabled the Court to pass an order staying execution and no such order was passed in the present instance. THE learned advocate for the appellants argued that when the properties of the debtor were taken control of by the court by appointing a receiver in the Debt Relief proceedings no further execution was possible and hence there was in effect a stay of execution. We are unable to accept this position as correct. THE court's control and custody of the properties through its receiver does not mean that the decree-holder is totally disabled from taking out execution against the properties. THE decree holder could have obtained the sanction of the court and proceeded with the execution. THE ruling in 1952 ilrtc 426 is to govern even cases where the court has taken control of the properties by appointing a receiver.