BHARGAVAN Vs. HALIMA BIVI

JUDGEMENT

(1.) THE sole question for decision in this Second Appeal by the 9th defendant, judgment-debtor, is whether the execution of the decree, which was for redemption of a mortgage, is barred by limitation or not. THE decree of the first court was passed on the 8th July 1949 , and a petition for its execution was made on the 16th August, 1950. Pending the appeal which was preferred against the decree, the proceedings in execution were stayed by the appellate court by order dated the 13th September, 1950. That appeal was eventually dismissed with costs on the 7th March, 1952. Plaintiffs 2 to 4 who are the additional decree-holders and are respondents 1 to 3 in this Second Appeal, applied to the execution court on the 20th september 1956, for proceeding with the execution of the decree, on the basis of the execution petition of 1950. THE appellant objected, contending that the execution of the decree was barred by limitation, for the reason, that the appellate decree was not executed within three years of the date thereof and that the execution petition of 1950 was no longer alive after the passing of that decree. THE execution court accepted the contention, and dismissed the execution petition. In appeal, the Subordinate Judge held, that the fee having been paid for the registration of the appellate decree, though the decree itself has not been registered, the period of limitation for execution of this decree was six years, and that the application of 1956 referred to above being within this period, the execution petition of 1950, which has been pending all the time, may be continued so far as the prayers in it were in conformity with the decree in appeal. In Second Appeal, these positions were contended to be untenable.

(2.) IN view of the decisions of this court in Parameswara bharathikal v. Pappen Padmanabhan 1958 KLT. 271, Lakshmi v. Mayitti Narayanan 1962 KLT. 27 and Mathunni Varkey v. Raghavan Pillai parameswaran Pillai 1964 KLT. 512, the contention that the respondents are not entitled to claim the period of six years from the date of the appellate decree for execution has to prevail, because that decree has not been registered.