HAJEE MOHOMMED METHARU Vs. JOSEPH ACHAMMA

JUDGEMENT

(1.) THE only question for decision in this second appeal is whether execution is barred by limitation or not. THE lower appellate court has held that there is no bar of limitation and remanded the case to the trial court for consideration of certain other objections raised in execution by defendant 17. Defendant 17 has, therefore, filed this second appeal contending that execution is barred by limitation.

(2.) THE decree that is sought to be executed was passed on 10. 6. 1108. In pursuance of an execution petition dated 26. 5. 1109 certain properties lying within the jurisdiction of the Kottayam Munsiff's Court were attached in execution of it on 3. 10. 1109 and some of those properties were also sold in court auction on 17. 7. 1111. But this sale was subsequently set aside in karkadagom 1114 and the case posted to 19. 2. 1115 for the decree-holder to take further steps. On 19. 2. 1115 the decree-holder filed a petition stating that he was filing an appeal against the order setting aside the sale and praying that the execution petition might, therefore, be struck off keeping the attachment alive and permitting him to take further steps after the decision of the appeal. THEreupon the court passed an order on the same day on the execution petition of 26. 5. 1109, reading: "dismissed. Attachment retained". After this order which was passed by the Kottayam Munsiff's Court a new munsiff's Court was established at Ettumanoor, and with the establishment of that court some of the properties attached in 1109 came to be within the territorial jurisdiction of the Ettumanoor Munsiff's Court, and some continued to be within the territorial jurisdiction of the Kottayam Munsiff's Court. On 18. 12. 1118, after the dismissal of the appeal which he had filed against the order setting aside the sale, the decree-holder filed another execution petition in the Kottayam Munsiff's Court praying that he might be allowed to sell such of the properties attached on 3. 10. 1109 as were lying within the jurisdiction of the Kottayam Munsiff's Court and that if the decree amount was not realised by the sale of those properties the case might be sent over to the other court, within the jurisdiction of which the remaining attached properties were lying, so as to enable him to sell those properties also. THE sale of the kottayam properties which ultimately took place in pursuance of this execution petition, also was set aside on 17. 8. 1124. THEn the case was transferred to the ettumanoor Munsiff's Court in pursuance of another application, and in the ettumanoor Munsiff's Court the decree-holder filed an execution petition on 31. 11. 1124 praying for sale of the attached properties which were lying within the jurisdiction of that court. Defendant 17 objected to this execution petition contending that the attachment on 3. 10. 1109 must be deemed to have ceased with the order of 19. 2. 1115 and that the execution petition of 31. 11. 1124 must, therefore, be treated as a fresh application made twelve years after the date of the decree. This contention was not accepted by either of the courts below. Hence this second appeal.