KRISHNA KURUP Vs. KRISHNA KURUP

JUDGEMENT

(1.) This second appeal relates to a matter in execution and the question raised is whether execution of the decree is barred by limitation or not. On 3.8.1119 M.E. the decree holder applied for the execution of the decree by attaching and selling certain immovable properties belonging to the deceased first defendant in the possession of his heirs. When the properties were attached the 3rd defendant, who is one of the heirs of the deceased 1st defendant, preferred a claim petition contending that the attached properties belonged to him, and not to the deceased 1st defendant, and that they were not therefore liable to be attached and proceeded with in execution. This claim petition was allowed by the execution court on 20.3.1121 M.E. and after allowing the claim petition the execution court posted the execution petition to 6.4.1121 M.E. for further steps and dismissed it on that date for want of prosecution. An appeal which the decree holder filed against the order of 20.3.1121 allowing the 3rd defendant's claim petition was dismissed by the District Court, but the second appeal which he filed was allowed and the claim petition was finally dismissed by the High Court on 12.11.1949 A.D. corresponding to 27.3.1125 M.E., the decree holder again applied for execution against the properties which had been attached in pursuance of the execution petition on 3.8.1119 and in respect of which the 3rd defendant had preferred the claim petition. To this execution petition also the 3rd defendant objected, and one of the grounds of objection taken by him was that it was barred by limitation. The courts below have overruled this objection, and in the second appeal the 3rd defendant contends that their decision is wrong.

(2.) It was on the ground that the decree holder is entitled to exclude the period from 6.4.1121 M.E. to 18.11.1949 A.D., corresponding to 3.4.1125 M.E. under S.15 of the Limitation Act that the courts below have held that the present execution petition is not barred by limitation. The appellant's counsel contends that S.15 will not apply as execution of the decree was not stayed by injunction or other order during this period. No doubt, S.15 of the Limitation Act will not in terms apply to this case. But it cannot be denied that the order of 20.3.1121 allowing the 3rd defendant's claim petition constituted a bar to the execution of the decree against the attached properties and that the said bar was removed only when the High Court allowed the second appeal and dismissed the claim petition on 12.11.1949 A.D. corresponding to 27.3.1125 M.E. It was not open to the decree holder to apply for the proclamation and sale of the attached properties during the period that the order of 20.3.1121 remained in force. He could apply for proclamation and sale of the attached properties only after that bar was removed. In the petition of 18.11.1949 A.D. corresponding to 3.4.1125 M.E. the decree holder prays only for proclamation and sale of the properties attached in pursuance of his application of 3.8.1119. Therefore, the petition of 18.11.1949 A.D. corresponding to 3.4.1125 M.E. is strictly no execution petition at all but only a petition for reviving the prior execution petition of 3.8.1119 M.E. after the bar to its prosecution was removed by the High Court. The High Court's order removing the bar was passed on 12.11.1949 A.D. corresponding to 27.3.1125 M.E. and the petition for revival was presented on 18.11.1949 corresponding to 3.4.1125 M.E. In this view no question of limitation arises at all, and this view is also fortified by a Full Bench decision of the Allahabad High Court in Chhattar Singh v. Kamal Singh, ILR 49 Allahabad 276. It was held in that case that S.15 of the Indian Limitation Act does not prohibit either expressly or by necessary implication the making of an application for revival which the courts both before and since the commencement of the Limitation Act of 1908 have treated as competent, and that where the execution of a decree has been suspended through no act or default of the decree holder he has a right to ask the court to revive and carry through the execution proceedings which have been suspended. In that case it was further held that this right can be exercised by means of a proper application to that effect made within three years from the date when the right to make it accrued, that is to say, from the date on which the obstacle to the progress of the execution proceedings against the attached properties were suspended by the order of 20.3.1121 and the obstacle was removed and the right to revive the execution proceedings accrued only on 12.11.1949.

(3.) For the reasons stated above I hold that execution of the decree against the attached properties is not barred by limitation and dismiss the second appeal with costs.